‘Computer says no to court order’

The Department of Home Affairs has admitted that a computer problem does not allow it to issue the correct paperwork for undocumented children – even if a judge orders them to do so.

In a heartbreaking case, the matter of two orphans, whose mother brought one of them to South Africa from the Congo and then died here, was once again heard before Judge Glenn Goosen.

The children had been stuck without paperwork for 511 days by yesterday – meaning they cannot be placed in foster care.

In legal documents placed before the court yesterday, officials said that despite being compelled by a court order to do so, they had not been able to assist as their computer system would not allow them to do so.

Counsel for the children, Advocate Lilla Crouse SC, from Legal Aid SA, said the department’s conduct was reprehensible and not in line with its values.

Crouse said: “It is 23 years since the law has changed and the department still has a programme problem.”

Legislation on South African citizenship, residency and travel documents changed in 1995 to amplify, among other things, the rights of refugees and asylum seekers.

Crouse said: “The answer they gave was dismissive to the extreme. [They] hide behind this defective computer programme.

“We have a court order that is now meaningless because it cannot be carried out.”

She asked that Goosen order the department to update its computer programme to bring it in line with the law within three months.

She wants the court to add Home Affairs Minister Malusi Gigaba and director-general Mkuseli Apleni to a possible application for contempt of court.

Crouse, assisted by Liesl Fourie from the Refugee Rights Centre at Nelson Mandela University, said documents before the court showed that officials were protecting the minister and director-general, assuring them that they “were safe and they were not in the immediate reach of the court”.

“The highest-ranking officials in the department should be held liable for these human rights abuses,” Crouse argued.
She said as the children had nowhere else to go they were being held in a place of safety alongside children in conflict with the law. “Their lives could be in danger,” she said. Advocate Nazeer Cassim SC, representing the Department of Home Affairs, said he could not quarrel with the frustration of the children’s legal team.

“We are all South Africans here. We know the Minister of Home Affairs, Malusi Gigaba has been giving citizenship to people with the surname Gupta.”

He said he agreed the children should receive emergency exemption status. He said the department had complied with the court order as far as it was able.

The children’s Congolese mother died of Aids-related complications in Port Elizabeth, but social workers have been unable to place the six-year-old boy and his 13-year-old half-sister in foster care, or in a children’s home, because they are undocumented. Following a previous attempt to force Home Affairs to help the children, Judge Elna Revelas declared the failure by the department unconstitutional.

Abraham Hayman, a social worker from the ACVV, said in court papers he had been appointed as the case worker for the children.

Hayman said the girl had been born in the Democratic Republic of Congo (DRC) when her mother was only 14.

The two travelled to South Africa to look for the mother’s sister, a child soldier who had been forced to flee the DRC.

Hayman said while the mother thought her sister had come to South Africa, she was in fact back in the DRC.

The mother then became involved with a Zimbabwean man and they had a child, the 13-year- old’s half-brother.

The mother was given a handwritten, unabridged birth certificate that did not include the identity of the six-year-old’s father, who died on June 10 2013.

The mother fell ill in 2016 and died of HIV-related complications in August of that year.

Goosen will give judgment within 14 days.