What does it take to get a work permit in South Africa? For Zimbabwean schoolteacher Zwelani Ncube, it took one year of countless phone calls, visits to Home Affairs, an appeal to the Minister, a High Court application, and finally two court orders before he was finally issued his work permit on February 18, 2009.Mr. Ncube applied for a job in South Africa because his pay in Zimbabwe came to less than R150 (CAD$18) per month. In November 2007, he was offered a job teaching English at Molteno High School in the Eastern Cape. He immediately applied for a work permit to start teaching when the school year began in January 2008.
For over seven months, his application was completely ignored. When Home Affairs finally got around to it, it was denied on the most spurious of grounds. Mr. Ncube lodged an internal appeal to the Minister of Home Affairs, which was also ignored. To add insult to injury, he was twice formally charged with misconduct, although the public prosecutor consistently withdrew the charges because they had no chance of success. He was also asked to pay his "fine" even though there was no such fine. Even worse, the students at Molteno School were without an English teacher for the 2008 school year because there was no qualified South African teacher to fill the post – they were babysat by the school matron for the entire year.
Last November, the Legal Resources Centre brought a High Court application to compel the government to issue Mr. Ncube a work permit or, in the alternative, to decide his internal appeal. We also asked for compensation for his lost wages and the expenses he had incurred. The Judge agreed and ordered that Home Affairs issue Mr. Ncube a work permit and pay him compensation.
But the story was not over. Home Affairs appealed the judgment. Under the court rules, an order has no effect pending a decision on the appeal … and that could take a while. Mr. Ncube was once again out of luck for the 2009 school year.
Therefore, the LRC brought an application under court rule 49(11) to execute the part of the judgment that required Home Affairs to issue him a work permit. There is a legal test that gives the court discretion to execute an order despite a pending appeal (this test may sound familiar to you law types). The court must determine what is just and equitable in the circumstances with regard to certain factors: the potentiality of irreparable harm/prejudice to each party; the prospects of success on appeal (in particular, whether the appeal is frivolous/vexatious or has been launched for some indirect purpose such as to gain time or harass the other party); and (where the potentiality of irreparable harm to each party is equal) the balance of convenience or hardship (South Cape Corp (Pty) Ltd v Engineering Management Services (Pty) Ltd, 1977 (3) SA 534 (A) at 545B-G).
Mr. Ncube hitchhiked down to Grahamstown (a trip of over 5 hours) for the hearing. It was the first time we met him, and it was moving to have him in the courtroom as our advocate argued the case and the judge gave his judgment. Judge Jeremy Pickering found in Mr. Ncube's favour. The deciding factor was the prejudice to Mr. Ncube if he did not get the work permit: he would not be able to work for another year and would likely lose the job, he would not be able to support himself or his family in Zimbabwe, and the students would be without an English teacher for some time. Judge Pickering described the situation as a "bureaucratic web from which Mr. Ncube must have despaired whether he would ever free himself". Imagine how many people are in similar situations and how many give up trying when faced with immigration officials in a foreign country without legal representation.
We have really wondered why Home Affairs took such a nasty and unreasonable approach to Mr. Ncube. Was it because he was Zimbabwean? (Recall the May 2008 xenophobic attacks – the bitterness of many poor and jobless South Africans remains and there are still incidents of violence.) Was it incompetence or apathy? Was it because he dared to challenge them? Was it out of spite? These are the mysteries of South Africa that it feels like lawyers cannot answer – we can only try to patch the problem.
For news articles about this case, click here.
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