Minister of Home Affairs v T Maboho and 117 Related Cases

118 respondents instituted motion proceedings in the Limpopo High Court, Thohoyandou, in 2007 for orders directing the Minister of Home Affairs to issue them with identity documents. The applicants had applied for identity documents at various dates, assisted by Department officials in completing forms, providing photographs and fingerprints, but were not issued receipts. When following up after three months as instructed, they were told their applications had not been processed. This pattern repeated over subsequent visits. The court a quo on 9 November 2009 ordered temporary identity documents be issued within three months and identity documents within six months. The applicants alleged they suffered prejudice without identity documents, being unable to apply for driver's licenses, bursaries, employment, open bank accounts, obtain passports or vote. The founding affidavits were identical except for names, addresses, ages, and dates/places of application. No answering affidavit was filed by the Minister, though notices of opposition were delivered. Only on the hearing date in 2009 did the Minister's representatives argue the applications were fatally defective for not alleging the applicants were South African citizens or permanent residents.

• Whether the applicants were entitled to orders directing the issue of identity documents without proving they were South African citizens or lawfully and permanently resident in the Republic
• Whether the relief granted by the court a quo was competent
• What appropriate remedy should be granted where administrative authorities fail to process applications for identity documents within a reasonable time
• The proper approach to large-scale litigation involving similar applications brought by the same attorneys on virtually identical papers
• Whether a structural interdict supervised by the court is an appropriate remedy for systemic administrative failure

The appeal succeeded in part. The order of the court a quo was set aside and replaced with an order in each application requiring: (a) The Department of Home Affairs to consider each applicant's application and file an affidavit by 29 June 2012 (or such extended period) stating either (i) an identity document has been issued, or (ii) the application was refused with reasons, or (iii) if processing was not possible, the reasons and what attempts were made to obtain information; (b) Either party may apply on notice for further directions to bring the application to finality; (c) Costs to date are reserved. The appeals against the interlocutory orders were dismissed. No order was made as to costs of the appeal.

The binding legal principles established are: (1) An applicant who has made an application for an identity document that has not been processed within a reasonable time is entitled to relief under s 6(2)(g) and s 6(3) of PAJA requiring the application be considered, but not to an order directing that an identity document be issued; (2) The competent relief is an order requiring consideration of the application, not directing a successful outcome, even where the applicant has established prima facie unreasonable delay; (3) A structural interdict with court supervision is an appropriate remedy for systemic administrative failure to process applications, allowing the court to facilitate the process by giving directions to obtain necessary information and resolve difficulties; (4) Where administrators fail to take decisions within a reasonable time, a delay of over five months from application to proceedings can prima facie constitute unreasonable delay under PAJA s 6(3)(a) entitling the applicant to seek judicial review.

Cloete JA made extensive obiter observations on the problem of mass litigation: (1) There is no objection to attorneys using standard formats for multiple similar applications provided they are tailored to each client's circumstances, and acting pro bono or on contingency is a public service; (2) Abuse occurs when standard forms are not tailored and illiterate clients depose to irrelevant or untrue allegations; (3) Courts can address this by scrutinizing applications and using Uniform Rule 6(6) to grant leave to supplement papers or dismiss applications, being careful not to punish clients for attorneys' sins, especially vulnerable poor clients with least access to justice; (4) Large-scale litigation may result from touting and lead to inflated standard-form bills of costs not reflecting actual work, exacerbated by unopposed taxations wasting taxpayers' money; (5) Law societies and courts should address these abuses; (6) High courts have introduced local rules to regulate the avalanche of social grant and similar cases; (7) Structural interdicts supervised by courts are more likely to achieve results than simple orders directing compliance. The Court also criticized the Minister's legal representatives for failing to file an answering affidavit explaining what information was needed to process applications, and for raising fatal defect arguments only on the hearing date. The Court provided detailed non-prescriptive guidance on implementing the structural interdict, including obtaining identity numbers through the applicants' attorney, processing late birth registrations, arranging village visits after notice, dismissing applications where applicants died or cannot be traced, and using Uniform Rule 6(11) for parties to seek directions on notice without formal notice of motion procedures.

This case is significant in South African jurisprudence for several reasons: (1) It addresses systemic administrative failure in government departments responsible for issuing identity documents and social grants, building on earlier cases like Ngxuza and Jayiya; (2) It establishes that structural interdicts with court supervision are appropriate remedies for ongoing administrative dysfunction rather than simple orders directing compliance; (3) It provides important guidance on the proper relief under PAJA where administrators fail to take decisions within a reasonable time - an order to consider applications rather than direct successful outcomes; (4) It highlights and addresses the problem of mass litigation brought on identical papers by attorneys, potentially for profit rather than genuine public interest, while emphasizing courts must protect vulnerable, poor clients from being prejudiced by their attorneys' conduct; (5) It demonstrates the practical implementation of structural interdicts through flexible procedures allowing parties to seek directions on notice; (6) It reinforces that denial of identity documents causes severe prejudice affecting fundamental rights including employment, education, banking, travel and voting. The judgment reflects judicial frustration with persistent administrative incompetence while seeking practical solutions through supervised implementation.