Franny Rabkin
20 November 2008
Johannesburg — ZWELANI Ncube, a qualified teacher, came to SA because his teacher's pay in Zimbabwe came to less than R150 a month.
In papers in the Grahamstown High Court, Ncube said he could not afford to feed his family or send his younger siblings to school. So he applied for a job to teach English at a school in a small Eastern Cape town. There was no qualified South African applicant and he was given the job. He was told that he needed to apply for a work permit.
Assisted by the Legal Resources Centre, Ncube is now asking the court to step in and either grant him his work permit or compel the minister to decide on his appeal. His application is based on the Promotion of Administrative Justice Act, which says that a court can review the government's administrative action if it has an "adverse effect" on a person's rights.
From January 15 this year, Ncube was subjected to an almost farcical tale of endless unanswered phone calls, numerous fruitless trips to the home affairs department in Queenstown, lost files and uncaring, aggressive and biased officials.
Ncube says he went to the home affairs department 11 times. Twice he was told that the person he needed to see "was in a workshop". He was also told several times he would be contacted by phone, but never was.
"I found that the phone was typically not answered at all, and that on the rare occasion when someone answered, I was invariably told that whoever I needed to speak to was out but they would return my calls," he said in his affidavit.
After seeking legal assistance, Ncube says: "While I was at the (home affairs) office, Mr Tiyo (a home affairs official) told me that I had 'gone about this the wrong way' by seeking legal assistance, and then he said to me 'you will suffer'. I asked him what he meant by this comment, but he did not reply."
Ncube's allegations are not admitted by the government in its answering affidavit, but nor are they specifically denied. Desmund Lackey, on behalf of the government, said he did "not intend to comment upon the vast amount of material placed before (the court) by way of background". But Lackey said this did not mean that he was admitting the allegations were true.
Eventually, seven months after he was supposed to start teaching, Ncube was denied his work permit. The reasons given were that the school had not tried to get a South African to fill the position and that, since teaching English was not a "scarce skill", the certificate given by the labour department was "not favourable".
But Ncube says that the school advertised the job all over Eastern Cape. It got one response from a South African, who showed no qualifications. He also said he had applied for a general work permit, and not a quota work permit -- the former did not require that he fall into the "scarce skills" category.
Ncube has not worked for seven of the 10 months he has been in SA and has not been paid. He has not been able to send anything home to his family. The students at Molteno High School, including matriculants, have been without an English teacher for most of their academic year.
As the law allows, Ncube then appealed against the department's refusal to Home Affairs Minister Nosiviwe Mapisa-Nqakula. Thirty days later, receipt of his appeal had not been acknowledged.
Ncube says the school has told him that if his permit is not sorted out by November 27, it will have to re-advertise the job.
Ncube says the government's conduct has infringed on his rights to just administrative action, equality and dignity . He is also claiming R16325 in compensation for the loss of salary and the costs of the 11 two-hour taxi rides to the home affairs offices in Queenstown.
But Lackey says in his answering affidavit that the appeal was received and is being dealt with. He said there was no requirement for the minister to acknowledge receipt of the appeal, but that "it is expected that a decision on the appeal will be available before November 27".
Home affairs also tried to settle the matter before it came to court by undertaking that the appeal would be finalised.
The government says the delay on the minister's part is "insubstantial" and not exceptional enough to warrant the court stepping in to grant the permit.
"Exceptional circumstances do not exist which would justify the substitution of this honourable court for that of (the minister and) would not do justice to the overriding principle of fairness to both sides."
It also says that the court should not entertain Ncube's claim for compensation because in law, it would be available only if Ncube does in fact obtain his permit. This is still the subject of the appeal, Lackey says.
The case will be heard today in the Grahamstown High Court.
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