Hawk-eyed judge uncovers refugee-affidavit racket
Identical typos and grammatical errors on refugees' documents alert judge to slew of similar cases
A judge turned sleuth to uncover 57 cases in which attorneys copied and pasted the affidavits of would-be refugees.
Now the lawyers concerned face what Judge Glenn Goosen described as “very serious questions regarding the propriety of [their] conduct ... which may also encompass criminal conduct”.
Goosen, a human rights lawyer before he became a judge at the Port Elizabeth High Court, has reported his findings to Home Affairs Minister Malusi Gigaba, the Eastern Cape Society of Advocates and the Cape Law Society.
A copy of his judgment in three cases is also on its way to the Director of Public Prosecutions, who should “consider whether or not to initiate and investigation”, he said.Goosen expressed sympathy for the three foreigners whose claims for refugee status he was forced to dismiss after uncovering the identical affidavits.
“I am acutely aware that [they] suffer the consequence of such dismissal,” he said. “Responsibility for this, however, lies squarely upon the shoulders of the attorneys involved.”
Goosen said he was tipped off to possible wrongdoing when three cases came before him on May 8. All of them were against Gigaba and the Refugee Appeal Board, and involved Home Affairs’ refusal to grant refugee status.
What struck Goosen was that the three refugees – who had each fled from a different country at different times – had testified to identical facts. Even the typographical and grammatical errors in the affidavits were the same.
The only differences were the applicants’ countries of origin, the name of the political organisation that had allegedly persecuted them, and the countries they had traversed to reach South Africa.
“Given that the applicants were represented by two firms of attorneys and had apparently fled from different countries at different times, I considered that the founding affidavits could not possibly reflect the true experiences of the applicants,” he said.
“It struck me that the persons responsible for the drafting of the affidavits must have known that this was so and that they were, accordingly, party to an attempt to mislead the court.”Goosen sought explanatory affidavits from the two law firms concerned, Maci Incorporated and JCM Attorneys.
He said in his judgment that Sizwe Maci, of Maci Incorporated, had revealed that his firm had eight matters pending that had used essentially the same founding affidavit.
Maci said he had not overseen the drafting of the affidavits by candidate attorneys, but conceded that he should have.
JCM Attorneys’ sole director, John Mlombo – who was a former director of Maci Incorporated – said in his affidavit he had recruited several employees from his former firm.
He, too, distanced himself from the drafting of the affidavits, saying he had been made to believe that each application was brought after consultation with the applicant and that the information in each affidavit came from the applicants themselves. He undertook to investigate the court’s concerns.
A little more digging by Goosen exposed a total of 57 cases using a standard template of facts where, essentially, only the name of the applicants and the countries from which they originated differed.
Eight of these cases had been finalised and orders, including cost orders, had been granted against Home Affairs.
Goosen referred to substantial fees that were earned for what amounted to a duplicated affidavit. In one case, attorneys had charged R7,100 for drawing up affidavits and consulting clients.“When it is considered that the founding affidavits are entirely in standard form, including obvious and gross grammatical errors, it is difficult to conceive that any professional skill and expertise is applied at all to the production of these papers.”
Goosen said it was important that Gigaba be informed of the potentially significant prejudice to the public purse resulting from these matters — and raised the possibility that the rot may extend to the state attorney’s office.
“It strikes me as inconceivable that the state attorney could not be aware of the use of standard text and identical affidavits to support the relief sought, including the costs orders,” Goosen said.
“It may very well be that the state attorney has drawn this to the attention of the [department]. In that event, the failure to act lies at the door of the [department].”
Home Affairs spokesperson Thabo Mokgola said the department would respond after reading the judgment.
Maci said no cost orders had been granted in favour of any of his clients. Mlombo could not be reached for comment.