Dutch family’s 16 year struggle with Home Affairs

Thijs van Hillegondsberg arrived in South Africa in 1996 from the Netherlands. He came with his wife, Patricia Poelmann, and his son Ludo, who was then three years old. The couple also adopted two South African children in 2001, Thembisa, who is now 17, and Johan, who is 15. They live in the Strand where they run a business. Van Hillegondsberg emotionally explained to GroundUp how his 16 year struggle with Home Affairs to obtain legal documents had prejudiced and traumatized his family. The family has been fined and arrested for breaches of immigration laws at the instigation of Home Affairs.

Van Hillegondsberg says Home Affairs is ignoring the law and has been doing so since 1996. A report by the Public Protector published in April, titled Unconscionable Delay confirms his views. It found that the Department abused its power and that its behaviour constituted maladministration. Despite ordering the Department to set things right with the family within a month, van Hillegondsberg says they had still not done so by late June.

Van Hillegondsberg and his family have applied for work, temporary residence and study permits which have been delayed or ignored continuously. Despite last applying in March 2003 for the renewal of these permits, they have not been informed by the department of any decision. Hillegondsberg says he is staying in the country legally because Home Affairs have neither approved nor rejected his permit. The Public Protector’s report appears to support his view.

The Public Protector’s report has a list of van Hillegondsberg’s complaints. These include that he was arrested because of Home Affairs on 18 June 2010 just prior to the weekend and released on Monday 21 June, despite verbal and written requests from the Public Protector to Home Affairs to hold further action against him until the Public Protector’s investigation was completed. In another incident Ludo was fined R3,000 on 27 June 2011 at Cape Town International Airport when he was on his way to Malaysia for allegedly contravening the Immigration Act. A couple of weeks later, upon his attempted return, Qatar Airways refused Ludo permission to board his flight back to South Africa based on information received from Cape Town airport. The Public Protector had to intervene to help get Ludo back into the country but the family had to buy another ticket for him. The whole incident cost the family R20,000.

The Public Protector’s report makes nine findings against the Department. Here are some of them:

• The failure of Home Affairs to deal with the family’s permit applications since 2003 is maladministration and in breach of the Promotion of Administrative Justice Act.

• Home Affairs’ delays deprived the family their right to apply for permanent residence and are an injustice.

• When the Director-General and the Deputy Director-General of Home Affairs were told about the family’s situation in 2006, they failed to act. Not only was this maladministration, but their failure to assist the Public Protector at the time was in breach of the administrative justice provisions of the Constitution.

• The current Minister of Home Affairs, Nkosazana Dlamini-Zuma, and her department failed to provide a response to a provisional report of the Public Protector in August 2011, despite having two requests for extensions granted. The Minister also failed to respond in time to a provisional report by the Public Protector of July 2010.

• That the department used criminal proceedings against the family when it had failed to deal with their 2003 applications was an abuse of power. The alleged breach of the family’s permit conditions by Home Affairs was a result of Home Affairs failing to deal with their applications.

The Public Protector’s report says that the following must be done:

• The Minister must deal with the family’s need for permanent residence.

• The Department should consider withdrawing charges against Thijs and Patricia.

• The Minister should consider withdrawing the fine against Ludo.

• The Department must hold an inquiry into the reasons for the delays processing the family’s 2003 application.

Van Hillegondsberg explained how in 1999 he was repatriated to The Netherlands after unsuccessful efforts to obtain residence. In 2010, when he was arrested, his passport was taken away. This made him a prisoner in South Africa he says. “When my father turned 80 years old and when my parents celebrated their 60th wedding anniversary I could not go.”

“I appeared in court eleven times before Home Affairs realized that they do not have criminal evidence against me. The Home Affairs officials conduct themselves like a mafia, making threats, having people incarcerated on false charges, fabricating incriminating evidence and making false representations in court. I have suffered financially. The total damages resulting from Home Affairs’ misconduct since June 2010 is approximately R150,000.”

After the Malaysia incident, Ludo applied for the study permit for the second time and he obtained it in August 2011. He is the only member of the family who can go in and out of the country as he pleases. Van Hillegondsberg says his family’s experiences with Home Affairs have put a tremendous strain on their livelihood and on all spheres of their lives.

“We have consulted with numerous law specialists and none of them could see how the Department could have based its conduct towards us on the law, reason and common sense”, van Hillegondsberg says. “According to my sixteen years of observations and experience as a stateless citizen, the Department of Home Affairs today has a complete lack of leadership.”

But van Hillegondsberg is very pleased with the Public Protector’s report. “When Advocate Madonsela [the Public Protector] publicly released her final report in Cape Town, it reinvigorated me and revived my hopes that my children will one day feel free, will be able to rely on a functional justice system and will feel and experience the protection of the law as long as they abide by it themselves.” He continues, “In spite of all, the experience had made us more resilient. It has made us more determined to get involved in humanitarian work. My wife teaches disadvantaged children in Faure how to read and write. She has just established a non-profit organisation and I run a water purifying business.”

The Department of Home Affairs did not respond to our request for comment.