ZIMBABWEAN schoolteacher Zwelani Ncube has won another victory in his two-year court battle for a work permit, with the Supreme Court of Appeal dismissing an application by the Department of Home Affairs for leave to appeal against a high court order on the permit.

The decision could pave the way for similar claims in the future, his attorney, Sarah Sephton of the Legal Resources Centre, said. The appeal court ordered the department to issue a work permit to Ncube and to pay him compensation.

Ncube was offered a job to teach English at Molteno High School in January last year. But for more than nine months he was sent from pillar to post by the Queenstown office of home affairs, visiting it on at least 10 occasions and making numerous phone calls.

The department itself called the delay "lamentable". During that time, Ncube had no income and the students, including matriculants, at Molteno High School had no English teacher.

Eventually Ncube, with the help of the Legal Resources Centre, approached the Grahamstown High Court. Judge Lusindiso Pakade ordered home affairs to issue Ncube with a work permit and to pay compensation of more than R16 000.

The order was unusual - normally when a court sets aside an administrative decision, it will order that the person responsible must take the decision again. This time, however, the court stepped into the shoes of the department and the minister and substituted its own decision for that of the department. The payment of compensation was also unusual.

These were the two aspects of Pakade's order that the department sought to challenge in the appeal court in Bloemfontein, but to no avail.

In its affidavit to the appeal court, the department said Pakade's decision was wrong and argued that the law allowed an order like Pakade's only in "exceptional circumstances".

But Ncube's lawyers argued that the department had admitted the delay was unreasonable and that Ncube was, by law, entitled to a work permit. They said these were "precisely the sort of circumstances which justified substitution".

The appeal court's order, by Judges Jonathan Heher and Suretta Snyders, simply dismissed the appeal by home affairs but gave no reasons.

The department is yet to decide whether it will try to appeal against the appeal court's order. In its application, it said the issues in the appeal were "of great importance" to (the department).

Sephton said Ncube was "elated" at the appeal court's decision.

Franny Rabkin