Gary S Eisenberg, Eisenberg Associates
In this article, Gary Eisenberg assesses immigration regulation in South Africa and the importance of the role of the lawyer in related proceedings.
The practice of South African immigration law by attorneys is a precarious occupation. It is predicated on the willingness of Department of Home Affairs (DHA) officials to recognise and respect the standing of lawyers in the representation of their clients and to respond to them on that basis. In an environment of restrictive immigration policies, official attitudes towards lawyers have become tainted with suspicion and adversarial behaviour.
My impression, at least since 2010, is that the DHA is operated by an establishment that is overtly obsessive about national and border security. The DHA is part of the security cluster. In reality this approach is in all likelihood driven by a disguised fear and distrust of foreigners, evidenced by a recurring pattern of rejecting compliant visa and permit applications and sustaining a bureaucratic malaise, making it difficult for foreigners to extract the simplest benefit.
South Africa’s Immigration Act contains over 300 pages of legislation, including regulations. This legislation is sufficiently vague in places to enable the DHA to enforce it through its application of peculiar statutory interpretations and policies. South Africa’s immigration law is a forest of rules, many of them unwritten and subject to change without notice. Officials are poorly trained in the substance of immigration legislation and in the supporting regimes of administrative, criminal and constitutional law. Yet these officials are the custodians of the legislation and its implementation.
Foreigners choose to engage lawyers to represent them in their immigration affairs because they realise that immigration rule compliance is subject to, and plagued with, so much uncertainty. The evidence shows that the current model of DHA governance involves a sacrifice of operational efficiency and principles of legality, for the unconstrained exercise of power to achieve proprietary policy objectives. The choice by foreigners to elect legal representation in this context has therefore become increasingly necessary.
Our constitution enshrines the right to legal representation for “everyone who is detained, including every sentenced prisoner” and for “every accused person”. In administrative dealings with the State there is no similar constitutional right to legal representation. The Supreme Court of Appeals eloquently summed up the legal position as follows:
There may be administrative organs of such a nature that the issues which come before them are always so mundane and the consequences of their decisions for particular individuals always so insignificant that a domestic rule prohibiting legal representation would be neither unconstitutional nor be required to be “read down” (if its language so permits) to allow for the exercising of a discretion in that regard. On the other hand, there may be administrative organs which are faced with issues, and whose decisions may entail consequences, which range from the relatively trivial to the most grave. Any rule purporting to compel such an organ to refuse legal representation no matter what the circumstances might be, and even if they are such that a refusal might very well impair the fairness of the administrative proceeding, cannot pass muster in law.
The right to legal representation in administrative proceedings is codified and enables a governamental administrator, in his or her discretion, to allow a person “an opportunity to obtain assistance and, in serious or complex cases, legal representation; present and dispute information and arguments; and appear in person”. This discretionary administrative law right gives effect to the constitutional promise of “administrative action that is lawful, reasonable and procedurally fair” .
Clearly, the orthodox approach to the question of legal representation in administrative proceedings, which would include proceedings in terms of the Immigration Act, is purely a constitutional one. In my view, this approach is misguided and inadequate. It is not helpful, nor it does it ring true, in the practical representation of foreigners by lawyers in terms of the Immigration Act.
The issue of legal representation should not be formulated as to whether a foreigner possesses the right to legal representation in administrative immigration proceedings. The issue, rather, should be framed as follows: in the absence of an express statutory bar to legal representation, may DHA officials, including the minister, disregard the power of attorney of a lawyer who purports thereby to represent a person in immigration proceedings in terms of the Immigration Act?
In South African law, the attorney-client relationship is defined and governed in terms of our common law of agency. The position was articulated by the Witwaterstrand High Court as follows:
The services an attorney renders to his client are mainly…those which an agent renders to his principal. Although the relationship between an attorney and his client is of a very special character with certain aspects peculiar to itself, the legal principles which apply to that relationship are those of the law of agency…
When it comes to dealing with third parties on behalf of a client (principal), a power of attorney is furnished setting out the lawyer’s (agent’s) powers granted to him in terms of his instructions . The disregard by immigration officials of powers of attorney presented to them by lawyers purporting to represent their clients in terms of the Act effectively constitutes a repudiation of the law of agency. The law of agency operates in a mechanical, established manner. It cannot simply be waived away by an aggressive official of government who takes umbrage at the spectre of a lawyer challenging his authority. The principles of agency are so deeply imbedded in the laws of most civilised countries that they cannot easily or at all be undermined, except by legislative fiat.
On 26 May 2014, section 46 of the Immigration Act was repealed. Section 46(1) provided that “no one, other than an attorney, advocate or immigration practitioner, may conduct the trade of representing another person in the proceedings or procedures flowing from this Act.” The repeal of this provision was not replaced by a provision barring legal representation, or representation by advocates or “immigration practitioners” (non-lawyers who were registered as such with the DHA).
Rather, the repeal of section 46 left an open field in which a beggar on a street corner could begin trading as a representative in immigration proceedings. In the absence of any regulation of who may legitimately, or at all, represent foreigners in the proceedings of the Act, DHA officials have become brazen in their antagonism towards attorneys. This is especially true of consular officials posted at foreign South African missions. Foreigners often recount witnessing consular officials ripping up the powers of attorney included their visa applications prepared by their lawyers. Attorneys also receive missives from DHA officials advising them that their representations are disregarded and that they will only deal with applicants directly.
The repeal of section 46 of the Act has created an environment where foreigners often feel defenceless and vulnerable. The disregard by DHA officials of powers of attorney contributes to obvious opportunities of corruption where foreigners, clueless of the complexities of South African constitutional and immigration law and deprived of legal representation, are ripe targets for extortion and worse.
The power of attorney is not merely an academic instrument discussed in law school classrooms. It often serves as the only bulwark of protection for people dealing with state officials in complex and important administrative law proceedings. The issuance of a work visa by a DHA official, or a refusal to grant one, could be life-changing for the applicant and a South African employer. The same is true where spouses, children and siblings rely for their wellbeing and dignity on the issuance of relative visas. The fundamental importance to people’s lives of a positive outcome of a visa application, or an administrative appeal, in most cases is obvious.
This is true also in foreigners’ dealings with the DHA’s immigration inspectorate. The inspectorate is empowered to investigate any matter falling within the ambit of the Act. It is also charged with deportations and the “regularisation” of illegal foreigners. Although the potential for administrative abuse and corruption is amplified in this space, illegal, prohibited and undesirable foreigners are often required to subject themselves to lawyer-less engagement with inspectorate officials. Self-incrimination, bribery and extortion naturally flow from these proceedings from which lawyers are often purposely excluded.
All of these cases are “serious and complex”, not only in substance, but also in their consequences.
It is time that lawyers are recognised by the DHA to play a meaningful role in the upholding and preservation of the rule of law. A disregard by DHA officials of a power of attorney held by a lawyer constitutes a negation of what the attorney’s profession stands for. As one legal commentator summed it up:
Lawyers are more than their clients’ agents. Lawyers are officers of the court, thus subjecting themselves to the court’s supervision and to duties geared to protect the vigor, fairness, and integrity of processes of litigation. Furthermore, as members of a profession, lawyers are subject to duties not neatly captured by the consequences of agency.
Lawyers are an integral part of South Africa’s justice system. The importance of their role in protecting and advancing the rights of foreigners within South Africa’s immigration context cannot be overestimated.