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Shipwrecked by injustice but clinging to the Constitution

Surveys show that barely half of South Africans trust the justice system, despite relatively few personally having been snagged in its maw. So it is a welcome paradox when someone dealt only injustice by officialdom, somehow retains faith in the Constitution.

Hollander Thijs van Hillegondsberg and family – wife Patricia Poelmann, joint son Ludo, and adopted children Thembisa Masina and Johan Oktober – have fought for 17 years for permanent residence. Public Protector Thuli Madonsela last year ruled that they were victims of home affairs maladministration and abuse of power, and should be granted residence by ministerial exemption. This was not done.

As reported here last week, Thijs was recently served with a deportation order that if defied, as he vowed to do, would have seen him arrested last Sunday. In a last minute response after being turned away by the University of Cape Town’s Law Clinic, Van Hillegondsberg got pro bono assistance from Leon Isaacson of Global Immigration and Advocate Jacques du Preez of the Centre for Constitutional Rights in preparing an urgent application for a stay. He served the papers himself, and then personally argued the matter.

Judge Tandazwa Ndita granted his application, ordering Home Affairs Minister Naledi Pandor to allow Van Hillegondsberg to submit a review application with any additional documents necessary.

The 2012 public protector’s report gives a chilling insight into the murky, capricious nature of home affairs’ immigration procedures so far.

It records that in 2000 Van Hillegondsberg’s temporary residence was renewed subject to only a single condition – that he continued to conduct his water quality business. Bizarrely, home affairs then in 2010 had him thrown in jail – for contravening his permit conditions by conducting his business.

The arrest, betraying assurances made to the protector that no action would be taken pending her investigation, was executed with calculated spite. It was late on a Friday, ensuring that Van Hillegondsberg spent the weekend in jail. On the Monday he was bailed and eventually the case was struck from the roll.

Then their teen son Ludo was refused re-entry to South Africa after a trip to Malaysia. This ‘abuse of power … traumatised a young man who ended up stranded,’ writes the protector, who had to intervene to facilitate Ludo’s return.

After 68 pages of exhaustive analysis of documents, as well as home sffairs’ and Van Hillegondsberg’s claims, counter-claims and to-and-fro rebuttals, the public protector cuts to the nub of the family’s right to residence, the adoption in 2000 of their two children.

Home sffairs never contests that theirs is a family unit and that the children have always been well cared for. This, in turn, effectively negates home affairs assertions that the family will be a drain on the state.

Madonsela concludes that the failure to grant permanent residence flouts not only the Constitution but an array of international treaties to which South Africa is signatory, all of which ‘place great emphasis on the protection of the family and that the interests of the child are paramount.’

‘Regardless of how blame should be apportioned for the non-finalisation of this matter, few would disagree that it needs to be finalised in a manner that … the best interests of the children take precedence.’

Judge Ndita’s ruling has left Van Hillegondsberg euphoric: ‘Since I walked out of the Cape Town High Court, I have not looked at my watch again … both time and my life have collapsed into only now, this moment.’

What is at issue, he says, is not the years of stress and trauma. ‘It is not about us. It never was. It is what we represent – the power, beauty and sophistication of the Constitution.

Van Hillegondsberg will soon know whether his touching faith is justified. Pandor’s predecessor, Nkosazana Dlamini-Zuma, backed her officials and gave the protector – and hence the Constitution – the two-finger salute by simply ignoring the findings.

This was part of a pattern. Home affairs earlier failed repeatedly to co-operate with Madonsela’s office in opening its records.

Pandor is a known stickler for correctness but has already once refused to grant the special ministerial exemption required. Van Hillegondsberg, however, is optimistic: ‘We have never since our arrival here not been safe. We have the moral protection of the Constitution.

‘That was confirmed by Judge Ndita. Basically, she said to me, “stand here next to me, under the protection of the Constitution, and we afford the minister the courtesy – without damaging the dignity of her office – to correct her earlier erroneous decision”.

‘Now it is up to Minister Pandor what will happen. Back to the dark ages of “I win, you lose” or forward to … ‘we win’.