Court dismisses application on Dalai Lama visa

Application by IFP and COPE on the constitutionality of the government’s failure to grant a visa to the Dalai Lama is dismissed in the Western Cape High Court

AN APPLICATION on whether it was constitutional for the government not to grant a visa to the Dalai Lama last year was dismissed in the Western Cape High Court on Friday.

Judge Elizabeth Baartman dismissed the application by the Inkatha Freedom Party (IFP) and the Congress of the People (COPE) with costs.

The IFP and COPE had sought an order declaring Home Affairs Minister Nkosazana Dlamini-Zuma ’s handling of the matter unlawful and forcing her to treat future applications by the Dalai Lama fairly.

Judge Baartman reasoned that because the date of the Dalai Lama’s intended visit had long passed and because he had not yet accepted an invitation to visit South Africa again, there was no live dispute between the parties any more, making the case “moot”.

Although courts had a discretion to decide a moot case, the judge said, because of the “peculiar facts” of this case, it would not be in the interests of justice to do so.

A “prerequisite” for a court to decide a moot issue is that the court’s order will have a practical effect. But there would be no practical effect of granting the orders sought by the IFP and COPE in this case, said Judge Baartman.

“There is … no reason to fear that our courts would not in future, in appropriate circumstances, come to the Dalai Lama’s or any other aggrieved visa applicant’s aid, should he or she approach the court. However, given the nature of this case, the relief sought would have no practical effect,” she said.

On Friday, IFP MP Mario Oriani-Ambrosini said in a statement: “The judgment did not go into the merits of deciding whether the conduct of government was in fact wrongful, but held that the court could not decide this question.”

He added: “Simply put, the court held that it could do nothing to fix what was done in the past if that was wrongful and that nothing had yet been done in respect of the future that could enable the court to fix it before it happened.”

The IFP said this meant the “national tragedy and international disgrace” of the government having twice denied a visa to the Dalai Lama had fallen into a “legal no-man’s land”.

The Dalai Lama last year cancelled his intended trip to South Africa to attend Archbishop Emeritus Desmond Tutu’s 80th birthday on October 4. He said he had done so to avoid inconveniencing the South African government.

However, the government’s failure to grant the visa sparked a public outcry, with Tutu accusing President Jacob Zuma ’s administration of being “worse than the apartheid government”.

IFP leader Mangosuthu Buthelezi had invited the Dalai Lama to visit him this year.

In arguments in December, Judge Dennis Davis had questioned whether the application by the two political parties was a “moot” issue, as the Dalai Lama had withdrawn his visa application and not applied for another.

Judge Davis also said at the time that the government had been faced with “difficult questions” before deciding whether to grant the Dalai Lama a visa to visit South Africa.

“What would have happened if you gave the Dalai Lama a visa and next day China said we are cancelling R3bn of investment?” he asked advocate Max du Plessis, representing COPE.

Mr Oriani-Ambrosini said on Friday that the IFP would consider appealing against the judgment, but that “irrespective of the outcome, we all know in our hearts that we have done what had to be done, and if it were not for those who did it, who else would have done it?”

Posted by admin on Feb 11 2012. Filed under African News. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry