About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2015
>>
[2015] ZAWCHC 170
|
|
Tshiyombo v Members of the Refugee Appeal Board and Others (13131/2015) [2015] ZAWCHC 170; [2016] 2 All SA 278 (WCC); 2016 (4) SA 469 (WCC) (18 November 2015)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case
number: 13131/2015
Before: The Hon. Mr Justice Binns-Ward
Hearing: 10 November 2015
Judgment
delivered: 18 November 2015
In the matter between:
KENNEDY
TSHIYOMBO
Applicant
and
THE MEMBERS OF THE REFUGEE
APPEAL
BOARD
First
to Fourth Respondents
AND
FOUR
OTHERS
Fifth
to Eighth Respondents
JUDGMENT
BINNS-WARD J:
[1]
The applicant has applied, in terms of Part
B of his notice of motion, for orders reviewing and setting aside the
decision by the
refugee status determination officer rejecting his
application for refugee status as unfounded and the subsequent
decision of the
Refugee Appeal Board refusing his appeal against that
determination. He also seeks consequential relief by way of an
order
declaring that he is a refugee who is entitled to asylum in the
Republic of South Africa, as contemplated by s 3 of the Refugees
Act 130 of 1998 (‘the Act’), together with a direction to
the acting manager of the Cape Town refugee reception office
(the
sixth respondent) to issue to him a written recognition of refugee
status in terms of s 27(a) of the Act,
[1]
read with regulation 15(1) of the general regulations made
thereunder.
[2]
The relief applied for in terms of Part B of the notice of
motion follows on that sought earlier, on grounds of urgency,
in
terms of Part A thereof. Pursuant to the hearing of the
application for urgent relief before Dlodlo J on 5 August 2015,
certain interim relief was granted to the applicant. The
interim relief included a direction to the sixth respondent to issue
a temporary asylum seeker permit to the applicant that would permit
him to remain lawfully in this country pending the determination
of
the relief sought in terms of Part B of the notice of motion.
[2]
The
order made by Dlodlo J also provided a timetable for the further
conduct of the matter concerning the judicial review sought
by the
applicant in terms of Part B of the application. The
respondents were, in addition, directed (in terms of paragraph
(a) of
the order) to file the administrative record of proceedings in terms
of rule 53(1)(b) of the Uniform Rules by 31 August
2015
[3]
and to deliver their answering affidavits, if any,
on or before 28 September 2015. According to the tenor of
the order,
it was made after hearing counsel for the applicant and
‘by agreement between the parties’. The implication
was
that notwithstanding that the respondents had not delivered a
notice of opposition in terms of rule 6(5)(d), they were party
to obtaining the order as if they had done so.
[3]
As matters transpired, the respondents
failed to comply with those agreed procedural directions. There
was no indication on
file that the order had been served on the
respondents, but service was probably, quite reasonably in the
circumstances, considered
unnecessary in the context of their legal
representative having agreed to it, and no doubt being in possession
of a copy.
If they had subsequently decided on reflection, as
they were entitled to, not to deliver opposing papers, or to abide
the decision
of the court, it would have been an act of basic
courtesy in the circumstances described to have caused an appropriate
notice to
that effect to be delivered. However, when the review
application came before me on 10 November 2015 pursuant to the
relevant
provision in the order made by Dlodlo J, there had been no
movement in the court file whatsoever, save for the filing of heads
of argument by the applicant’s counsel.
[4]
The absence of any supplementary founding
affidavit by the applicant in terms of rule 53(4) suggested on the
face of the matter
that the respondents had also failed to file the
record of proceedings, as directed in the order made by Dlodlo J.
That
the record was material for the purposes of the applicant’s
review application followed from various averments in his founding
affidavit. So, for example, he had complained that the respondents
had ‘refused to supply [his] legal representatives with
copies
of [his] B1-1590 applications’,
[4]
and that the refugee status determination officer (the fifth
respondent) ‘had refused to supply [his] legal representatives
with his interview notes’,
[5]
and that ‘[t]he first to fourth respondents unfairly had regard
to documents which had been requested by [his] legal representative,
but which were withheld by them’.
[6]
It was confirmed at the hearing, in circumstances to be
described presently, that the respondents had indeed failed
to comply
with paragraph (a) of the order made by Dlodlo J.
[5]
The relief sought in terms of Part A of the
application had not concerned the members of the Refugee Appeal
Board, who had been
cited as the first to fourth respondents,
respectively. It was not apparent from the court file whether
service had been
effected on them; nor was it apparent whether the
respondents had been legally represented when the order made by
Dlodlo J
was taken ‘by agreement between the parties’.
Upon enquiry at the commencement of the hearing, I was informed
by Ms
Harvey
,
who appeared for the applicant, that Mr Kondlo, the assistant state
attorney, had appeared on behalf of the respondents at the
hearing
before Dlodlo J. As mentioned, there was nothing in the file to
indicate that the State Attorney’s office had
come on record
for the respondents. There was also nothing to show that the
State Attorney, having first appeared for the
respondents, had
subsequently withdrawn as their representative. In
circumstances in which it therefore fell reasonably to
be inferred
that the State Attorney continued to represent the respondents it was
entirely unsatisfactory that no-one had been
instructed by that
office to appear for them - if only to explain the
prima
facie
contemptuous non-compliance with
paragraph (a) of the order by Dlodlo J, to which the assistant
state attorney, presumably
upon the instructions of his clients, had
agreed. I therefore stood the matter down so that Mr Kondlo
could be called
to appear to account for the situation. I was
also loath to proceed with the matter in the unexplained absence of
the respondents’
legal representative after I had ascertained
that they were indeed represented.
[6]
Before the matter was stood down I had
remarked to Ms
Harvey
that it was my
prima facie
view that the absence of the administrative record might well
prejudice the applicant’s ability to obtain the substitutive
determination by the court of his refugee status that he was seeking
by way of consequential relief. Whereas it has been
observed
that the provision of the administrative record in the judicial
review process is a procedure designed primarily for the
benefit of
applicants, and thus something that may be waived by them,
[7]
it has also been recognised that the absence of the record can,
depending on the circumstances, prejudice an applicant’s
ability to obtain the particular relief that it seeks.
[8]
I would suggest that the absence of a record might be
particularly prejudicial when a substitutive decision is sought
from
the court consequent upon the exercise by it of its review powers.
Questions such as bias, incompetence, foregone conclusion
and the
like, which are often pivotal to deciding whether to grant such
exceptional relief, are matters on which a court would
often be
reluctant to reach a conclusion without insight into the relevant
parts of the administrative record. Quite apart
from that
consideration, in the current case, as I have described, it was in
fact part of the applicant’s case in the review
that he had
been prejudicially deprived of access to documentation that was
relevant to the preparation of his case. The
decision by his
legal representatives not to have insisted on compliance by the
respondents with rule 53(1)(b) was on the face
of it therefore
somewhat puzzling. It was, however, put in a more
understandable light by the further information provided
in the
circumstances I shall now describe.
[7]
The applicant’s attorney, who is
attached to the Refugee Rights Clinic at the University of Cape Town,
took advantage of the
standing down of the matter to await Mr
Kondlo’s attendance to depose to an affidavit to address the
concern I had expressed
about service on the first to fourth
respondents and to confirm the advices I had received from counsel
from the bar that the respondents
had indeed been legally represented
when the order was taken before Dlodlo J.
[8]
The further information provided by the
applicant’s attorney in respect of service was not entirely
satisfactory. It
appeared from the sheriff’s return that
the application had been served on an employee of the Refugee Appeal
Board at the
Board’s office in Pretoria on 4 August 2015.
There had been no service on the first to fourth respondents
individually.
Indeed, the sheriff’s return was especially
endorsed to indicate that only one set of papers had been provided
for service
on the first to fourth respondents. It also bears
mention that the applicant’s papers were somewhat inconsistent
in
respect of the joinder of the Appeal Board: The Appeal Board
was cited as the first respondent in the header to the founding
documents, while its chairperson was named individually as the first
respondent in the body of the founding affidavit. I
was
nevertheless willing to accept that effective service on the members
of the Appeal Board had occurred because Mr Kondlo confirmed
that he
acted for all of the respondents. (As all of the respondents
are state functionaries cited in their capacities as
such, the
applicant would, in fact, have been well advised to have utilised the
provisions of rule 4(9) of the Uniform Rules and
served the papers on
the State Attorney. Papers were actually served on the State
Attorney by the applicant’s attorney
on 14 July 2015, but
according to her affidavit of service that had been only for the
purpose of service on the seventh and eighth
respondents.
[9]
A copy of the papers was also served by the applicant’s
attorney on the provincial manager of the Department of Home
Affairs
at Cape Town on 14 July and on the procedural line manager for the
Cape Town Refugee Office – the person allegedly
responsible for
‘the control and supervision of the fifth respondent’ –
on 20 July 2015.)
[9]
In dealing with my query concerning the
respondents’ legal representation, the applicant’s
attorney reiterated counsel’s
advices that Mr Kondlo had been
present at the hearing before Dlodlo J on 5 August 2015 and had
confirmed, when agreeing to the
order made on that date, that he
represented all of the respondents. Addressing the respondents’
failure to have complied
with paragraph (a) of the order or to have
delivered answering papers, the applicant’s attorney averred
that she had written
to Mr Kondlo in that connection on 12 October -
in the form of an email to which a letter, dated 9 October, had been
attached -
and again on 3 November. She stated that Mr Kondlo
had not replied in writing, but had informed her telephonically that
the
respondents had failed to respond to his requests for
instructions. When he eventually appeared, Mr Kondlo confirmed
that
this had been the position. He was unable to explain,
however, why he had not formally withdrawn as attorney, as perhaps he
would have been advised to have done in such circumstances.
That would have enabled the applicant’s attorneys to deal
directly with the respondents in respect of the non-production of the
record. It would also have made it understandable to
the court
why no-one had appeared for the respondents when the matter was
called. It is not acceptable for an attorney to
appear for a
client at a hearing and then simply not arrive at the
resumption without giving notice to the court and the
other parties
of his withdrawal.
[10]
Attorneys in the office of the State Attorney are in no different
position to their colleagues in private practice in this
respect.
Mr Kondlo appeared to recognise as much and apologised for his
failure to comply with his duty.
[10]
It seems that it is also necessary to point
out that when the State Attorney’s office receives instructions
to act in any
instituted proceedings, it must formally place itself
on record in terms of the applicable rule of court by delivering the
appropriate
notice. As noted, the papers had been served at the
State Attorney’s office three weeks before the hearing before
Dlodlo
J on 5 August, so there had been ample time for the State
Attorney to deliver such notice. Undocumented ‘guest
appearances’
are not only impermissible; they are also
unprofessional.
[11]
The correspondence addressed by the
applicant’s attorney to the State Attorney was illuminating,
even if depressing.
Her letter dated 9 October was a lengthy
missive; its length probably a reflection of considerable
frustration. It is convenient
for present purposes to quote the
first one and a half pages:
Dear Sir
As you know, we represent Mr Tshiyombo. You will
recall that on 5 August 2015 we took a Court Order by agreement, in
terms
of which Mr Tshiyombo was granted a temporary asylum seeker
permit pending the outcome of judicial review.
The further terms of the Order, which we stress was
taken by agreement, set out a timetable for the further conduct of
the matter.
The Respondents have still not filed the Rule 53 Record,
which has effectively caused the matter to come to a standstill, the
dates
for the filing of further pleadings having passed as a result.
It is our experience that the Respondents’ conduct
in this regard is a strategy designed to frustrate and defeat our
efforts
to assist our clients and to exhaust our financial and
personal resources. The pattern is as follows:
1.
The Refugee Office
Manager refuses to issue a temporary asylum seeker permit to the
refugee whose case is going on judicial review
without an Order of
Court and a letter from the State Attorney;
2.
The law clinic is
accordingly compelled to incur considerable expense in bringing an
urgent application to the Western Cape High
Court for a temporary
asylum seeker permit, pending the outcome of the review;
3.
The asylum seeker is,
as a consequence, forced to endure a period of weeks or even months
during which his or her personal security,
and that of his or her
family, are unnecessarily placed in jeopardy, because, being
undocumented pending the outcome of the urgent
application, he or she
is vulnerable to arrest and cannot legally continue in employment;
4.
On the day of the
urgent application the State Attorney invariably asks that the matter
be settled and we take a Court Order by
agreement, often without the
Respondents tendering costs;
5.
The State Attorney also
usually agrees to a timetable for the further conduct of the matter,
encompassing extended time periods
which are advantageous to the
Respondents (because they contemplate longer periods than those
provided for in the Rules of Court)
for the filing of the Record and
further papers;
6.
The Respondents then
fail to file the Record, the State Attorney appears unable to
persuade them to do so, and progress in the matter
is accordingly
blocked;
7.
The law clinic then
spends considerable time and resources attempting to persuade the
State Attorney to progress the matter, contempt
of court proceedings
are expensive and have in any case proven ineffective.
In a few review applications the law clinic has followed
the Rule 6 application procedure, and has not called upon the
Respondents
to file the Rule 53 Record. The thinking in those
cases was that the refugee could attach available papers which, in
our
experience, constitute the Record that is habitually kept by the
Department of Home Affairs, to his founding affidavit and that
the
Respondents could provide further relevant papers when they answer.
This approach has been criticised in some cases by
counsel for the
Respondents who express the view that the law clinic is obliged to
follow the Rule 53 procedure in judicial review
proceedings. At
the same time, the Refugee Office has become less willing to supply
the law clinic with the contents of the
refugee’s file, making
it difficult to properly articulate the review grounds in the
founding affidavit.
Mr Tshiyombo’s judicial review has been set down
for argument, by agreement with the State Attorney representing the
Respondents,
on 10 November 2015. Despite our emails (copies
attached) there has been no compliance with the Timetable set out in
the
Court Order. Our client is prejudiced by any further delay
in the finalisation of this matter.
[12]
I enquired of Mr Kondlo whether he would
seek an opportunity to respond to the applicant’s attorney’s
affidavit.
He informed me that he would not. I know from
experience that, as its name signifies, the UCT Refugee Rights Clinic
acts
for the applicants in a great many cases of this type, which
come before the court regularly. It all too frequently happens
in these matters that the respondents in the relevant section of the
Department of Home Affairs do not comply with their aforementioned
obligation in terms rule 53(1)(b) to produce the record; note, for
example the remark by Bozalek J in
Katsshingu
v Chairperson of Standing Committee for Refugees Affairs and Others
[2011] ZAWCHC 480
(2 November 2011) at p.13 ‘
secondly
a perusal of the brief record
eventually
prised out
of the respondents
reveals…
’ (my
underlining). Earlier in the judgment, the learned judge had
made the following observations and remarks, which
have a familiar
ring in the context of the difficulties in the current case:
Set down at the same time as this
[review] application, was a related application for contempt arising
out of the respondents' failure
to furnish the record of proceedings
timeously in terms of Rule of Court 53. Those proceedings have,
however, been postponed.
The main application was launched in early
September 2010. Notwithstanding this and the respondents' ongoing
opposition, by the
time the matter was argued on 25 October 2011, the
respondents had failed to file any heads of argument or any opposing
affidavits,
with the result that the issues fall to be determined on
the applicant's version alone.
The only explanation offered for
this somewhat extraordinary state of affairs is that all along the
said respondents had not opposed
the primary relief sought on behalf
of the applicant, which is still not opposed. However, this statement
is belied by the notice
of opposition and furthermore, there is no
explanation why this alleged concession by the respondents to most of
the relief sought
by the applicant is nowhere reflected in the
papers.
This situation in which no
opposing affidavits are filed, despite the application being opposed,
is one which this court has previously
encountered in matters in
which the third respondent [the Minister of Home Affairs] and
officials of that department were brought
to court. It reflects, in
my view, a disturbing tendency to oppose litigation up till the door
of the court, but without ever putting
a version before the court.
The implications of such an approach, particularly as regards the use
of public funds and the office
of the state attorney, are a matter of
concern and indicate the need of the courts to be vigilant to ensure
that such action does
not become a norm and go unchecked.
[13]
In
Radjabu v
Chairperson of the Standing Committee for Refugee Affairs and Others
[2015] 1 All SA 100
(WCC), a matter in which the respondents opposed
in part the relief sought by the applicant on review, the record was
produced
only after the court (in the circumstances described in para
16 of the judgment) insisted on its production. The
respondents’
failure to comply with rule 53(1)(b) in that
matter was subsequently addressed by the then acting manager of the
Cape Town Refugee
Reception Office – the predecessor in office
of the sixth respondent in the current matter – in an
affidavit.
The explanation offered was dealt with by the court
at para 29-30 of the judgment as follows:
[29]
He [the acting manager] explained the failure of the respondents to
timeously produce the administrative record as required
in terms of
rule 53. It would appear that the Department’s officials are
reliant on prompting from the State Attorney in
this regard. The
implication in the answering affidavit is that the attorney in the
State Attorney’s office dealing with
the current matter had
been under the misapprehension that an extract from the
administrative record provided to the applicant’s
legal
representatives before the institution of the judicial review
proceedings had comprised the entire record. Mr Mathebula’s
affidavit was supported by a confirmatory affidavit from an attorney
in the office of the State Attorney, Cape Town. I must say
that there
is no excuse for any such misapprehension by the attorney of record
of the respondents because it was obvious that the
documents provided
by some unknown person before the institution of proceedings could
not have comprised the entire record. The
failure to provide the full
record timeously is to be deprecated. According to the applicant’s
attorney, who is engaged in
many similar cases, it has been a
commonly encountered omission in such matters. So much so, that the
University of Cape Town Law
Clinic has taken to instituting review
applications in matters such as this availing of rule 6, rather than
the ordinarily indicated
rule 53.
[30]
I have taken note of Mr Mathebula’s explanation. He was not the
incumbent of his current position during the period that
non-compliance by his office with its obligations to provide the
administrative records for judicial review purposes appears to
have
been endemic. He has given the court to understand that the problem
will not continue under his management of the Cape Town
office. It is
to be hoped that this undertaking will be reflected in reality. It
does not seem to me that the reaction to the historic
problem by the
Law Clinic in the use of rule 6 instead of rule 53 is well-advised. A
court will in most cases be severely handicapped
from dealing
properly with the judicial review of an administrative decision in
the absence of the administrative record of decision.
In the event
that the failure by an administrative authority to produce such
records when required is an entrenched course of conduct,
it is a
matter that should be addressed by obtaining appropriate directions
from the court and by reporting the conduct to the
Public Protector
and the Public Service Commission.
[14]
If I had the time to look for them I could
probably find other judgments in which similar remarks were
made.
[11]
It is plain that there is a systematic dysfunctionality in the
relevant branch of the Department of Home Affairs, which has
resulted
in its persistent failure or inability over a period of several
years, and notwithstanding repeated judicial admonitions,
to comply
with its legal obligations in matters in which its decisions are
taken on judicial review. The consequences prejudice
not only
the proper administration of justice, but also the effective
administration of the
Refugees Act. Courts
are frequently
called upon to make, and it would appear from the cases cited to me
by Ms
Harvey
,
[12]
frequently do make substitutive decisions determining the refugee
status of applicants in judicial review matters. This might
be
just and equitable in given cases, but it is far from ideal.
[15]
The Act contemplates a system in which
applications for refugee status are vetted inquisitorially.
Refugee reception officers
are permitted, indeed expected, to ensure
that the allegations that an applicant relies on in support of the
application are adequately
set out, and may carry out such enquiry as
they deem necessary in order to verify the information in the
application.
[13]
Refugee status determination officers may request further information
and, where appropriate, consult with or seek information
from a
UNHCR
[14]
representative.
[15]
The statutory appellate tribunals, namely the Standing Committee for
Refugee Affairs and the Refugee Appeal Board, have similar
powers and
responsibilities of enquiry, including the power to request input
from a UNHCR representative. Appropriate investigation
and
enquiry in any given case might well expose an apparently plausible
application for refugee status to actually be unmeritorious,
or
vice
versa
. The on-going influx of
refugees into this country is of such magnitude that it would be
logistically impossible to thoroughly
investigate every application,
but one would imagine that persons whose work it is to deal with such
applications daily would develop
a knack of identifying the matters
that warrant digging into. The inquisitorial, investigative and
consultative amenities
of which the statutory functionaries are
expected to avail in determining the position of an applicant for
refugee status are not
available to the courts, which decide judicial
review applications in an adversarial process on the evidence which
the parties
see fit to adduce. A failure to place the
administrative record before the court could easily result in a court
inappropriately
giving substitutive relief.
[16]
So, in
Radjabu
,
for example, it was only when the record was, as my brother Bozalek
aptly expressed, ‘prised out’ of the Department,
that
various inconsistencies in the applicant’s statements in
support of his application for refugee status came to light,
which
the court was not equipped to resolve, and which it therefore
recognised required further investigation before a decision
on the
status application could properly be made. It accordingly
declined to make the substitutive order pressed for by the
applicant’s counsel. Without the administrative record
the court might have been persuaded to make a substitutive decision
according the applicant refugee status when he might actually not
have been entitled to it.
[17]
The point I seek to illustrate is that the
Department’s systemic failure to comply with its procedural
obligations in judicial
review applications of this nature is liable
to subvert the proper administration of the Act. And it is a
matter for serious
concern that the subversion is being perpetrated
by the very functionaries who are employed to administer it.
[18]
The respondents’ failure to comply
with rule 53(1)(b) prejudices the administration of justice
because it tends to impinge
adversely on the applicants’
constitutional right to a determination of their suits by the
application of law in a fair hearing.
More prosaically, it
tends also to increase the cost of litigation – in many cases
at the expense of the taxpayer and thus,
society as a whole. In
the current case the failure by the respondents to comply with their
obligation in terms of the rules
of court and the order made on 5
August 2015 necessitated the applicant’s attorney attending,
albeit to no effect, on the
aforementioned correspondence and
telephone calls with the State Attorney’s office. It also
resulted in the matter
unnecessarily being heard in the Fourth
Division of this court (in which unopposed matters are heard only
exceptionally).
Had the respondents timeously indicated through
their attorney that it was not their intention to oppose the
application, as their
failure to deliver answering affidavits is
liable to suggest, the applicant could have arranged with the Judge
President, as is
customary in unopposed review applications in which
the papers are not voluminous, for the matter to have been heard in
the Third
Division (the unopposed matters motion court). Quite
apart from the costs considerations, to which I shall come next, the
hearing of the matter in the Fourth Division in the circumstances
described has meant that an effectively unopposed matter has
taken up
a day slot on the Fourth Division roll that could have been allocated
to other litigants waiting in the queue for setdown
dates for the
hearing of their
bona fide
opposed matters.
[19]
Counsel
appearing in matters in the Fourth Division are reserved by the day.
They are also required to file heads of argument (10
days before the
hearing for applicants and five days for respondents). Counsel
appearing in matters in the Third Division
are not ordinarily
reserved for the day, and there is no prescribed requirement that
they file heads of argument. There is
thus ordinarily a
significant margin between the preparation and appearance fees
entailed in a matter heard in the Fourth Division
and one disposed of
in the Third Division. On the face of it the additional costs
have been incurred as a consequence of
the delinquency of the
respondents, or at least some of them,
[16]
in disregarding their obligations in terms of the
rules of court and the terms of a court order to which they agreed,
and by ignoring
requests by their appointed legal representative for
instructions. It seems to me
prima
facie
that the guilty parties should be
individually liable to pay the additional costs that have been
incurred in consequence of the
aforementioned misconduct. An
order will therefore be made that will afford the first to sixth
respondents an opportunity
to show cause why they should not be
ordered to pay the additional costs occasioned by the hearing of the
application in the Fourth
Division
de
bonis propriis
and on the scale as
between attorney and client.
[20]
I
apprehend, however, that penalising individual functionaries, while
it might be appropriate in the particular case, will not address
the
systemic problem of which this case is but another instance.
Previous judgments have warned that the virtually institutionalised
disregard for the rules and practices of the court by functionaries
in these refugee status decision judicial reviews cannot be
allowed
to become the norm. Undertakings have been given that the
problems will be addressed. All to no effect thus
far.
The prejudicial effects of this dysfunctionality have been
described. Something more effective needs to be done
to deal
with it. Chapter 9 of the Constitution, and more particularly
ss 181 and 182, provides for a Public Protector,
who has the
power, as regulated by national legislation,
[17]
amongst other matters, to investigate any conduct
in the public administration that is alleged to be improper or to
result in any
impropriety or prejudice, to report thereon, and to
take appropriate remedial action. The orders to be made might
thus also
incorporate a direction to the Registrar to refer a copy of
this judgment to the Public Protector for her to consider an
investigation,
which might conduce more effectively than the courts’
admonitions to appropriate remedial action. I shall defer a
decision
in that respect until the respondents have been afforded an
opportunity to make any representations they may wish to make in that
regard.
[21]
Turning now to address the substantive
issues in the review. The applicant has been in South Africa
since 2006 or 2007 (the
precise date of his entry into the country is
not disclosed on the papers).
[18]
According to his evidence, which is uncontroverted, he came here as a
refugee from the violent and disorderly conditions
prevailing in the
eastern part of the Democratic Republic of the Congo. He
described having been kidnapped and forcibly inducted
into military
forces in rebellion against the internationally recognised government
of his country. Having been witness to
atrocities carried out
by those forces on the inhabitants of a village it had overrun, the
applicant made his escape and managed,
with the assistance of
unspecified ‘human rights organisations’, to get himself
to the capital, Kinshasa. He
had not been there long when he
was arrested for having been a member of the rebel force. It is
not apparent on the papers
how he came to be identified as such.
He was held for a few days in a prison in Kinshasa before being
transferred to the
Kasapa Prison in Lumbumbashi in the south of the
country near its border with Zambia. The applicant testified
that ‘[i]t
is well known that prisoners at Kasapa are tortured
and killed using various methods’.
[19]
The applicant had been born in Lumbumbashi and had lived there until
he completed his education, when he had moved to live
with relatives
on the maternal side of his family in the South Kivu Province in the
east of the country. Having originated
from that part of the
country, he discovered that certain of the guards at the prison were
acquaintances of his. They helped
him to escape and he then
made his way over the border into Zambia, whence he found transport
on a truck headed through Zimbabwe
to South Africa.
[22]
The applicant was issued with a transit
permit at the South African border post at Beit Bridge and travelled
on to Johannesburg.
After a few days in Johannesburg, he was
advised by a friend to come to Cape Town to make application for
asylum. He described
the conditions at the refugee reception
office here as ‘chaotic and dangerous’.
[20]
After some months of waiting to obtain attention at the refugee
reception office, he and a number of other applicants for
refugee
status were loaded onto busses and taken to the offices of the
Department of Home Affairs in Barrack Street, where, with
the help of
another Congolese national whom he encountered there, he completed an
application form and was issued with an asylum
seeker permit in terms
of s 22 of the Act. He says that he did not receive any
official assistance despite the fact
that he did not have any English
and was able to speak only Swahili and French and that he was not
given a copy of the application
form that he had filled in.
[23]
It would appear that the applicant
thereafter stayed in Cape Town for several years. He was
reunited with his wife, who also
seems to have made her way to Cape
Town at about the same time. The couple have since had two
children, the first born in
2007 and the second in 2013. No
information has been given in the papers about the residence status
of the applicant’s
wife.
[24]
The applicant’s asylum seeker permit
was renewed from time to time. He was then requested to
complete a fresh application
for refugee status. Having done
so, he was interviewed by a refugee status determination officer in
terms of s 24 of
the Act. His application was rejected as
‘unfounded’ in terms of s 24(3)(c) of the Act.
The only record
of the rejection of his application that the
applicant has been able to tender is a copy of a torn scrap of paper,
which, by its
appearance, was part of a letter addressed to him by
the Refugee Affairs section of the Department of Home Affairs’
Cape
Town office on 27 October 2008. According to the
document, the applicant had lodged his application for asylum on
22 October
2008. It is evident from the remnant of the
letter, attached as annexure KT4 to his founding affidavit, that the
Department
provided reasons for the rejection of the application.
The reasons are not discernible however because that part of the
letter
has been torn off. The applicant has not explained in
his founding affidavit why only part of the Department’s letter
has been attached to his papers. He also has not provided any
indication of the nature of the reasons that were provided.
One
has to bear in mind, however, that the letter was in English, which
the applicant did not speak.
[25]
The applicant averred that he approached
the UCT law clinic, which provided him with a letter to take to the
refugee reception office.
He thinks this may have been a
‘letter of appeal’. A copy of the ‘letter of
appeal’ was not included
in the papers, and the failure to put
the appeal document – if such it was - before the court was not
explained. Whatever
the position, he continued to renew his
asylum seeker permit periodically until, in 2014, he was required to
sign an unspecified
document, apparently to confirm (the applicant
used the word ‘prove’) that he had submitted an appeal.
An appeal
hearing followed in October 2014. An appeal in terms
of s 26 of the Act is an appeal in the wide sense and allows a
complete rehearing of the appellant’s application for refugee
status. The applicant was legally represented at the appeal
hearing. The applicant’s appeal was dismissed and reasons
were provided.
[26]
A copy of the Refugee Appeal Board’s
reasons was attached to the applicant’s founding papers.
They refer in terms
to ‘Appellant’s Notice of Appeal’,
dated 28 February 2014. The applicant has not disavowed in his
affidavit
having filed such a notice of appeal. It would
presumably have been in the form prescribed in the Refugee Appeal
Board Rules,
2013,
[21]
which provide expressly for the notice of appeal to be accompanied by
an affidavit by the appellant setting out the reasons for
the
appeal. A copy of the notice of appeal and any accompanying
affidavit was not placed before the court. Those documents
would obviously have been part of the administrative record that
should have been produced by the respondents. One would
have
thought though that the applicant’s legal representative would
have retained a copy.
[27]
The summary of the applicant’s claim
given in the Appeal Board’s reasons document is essentially
consistent with that
which he has given in his founding papers in the
review application. The Board’s reasons record,
correctly, that the
burden of proof was on the applicant to show that
he is entitled to refugee status. They also state in that
connection that
‘[t]
he appellant
in casu needs to show that he/she
(sic)
left his/her
(sic)
country for specifically
politically motivated reasons, should the appellant fail to show
this, appellant’s refugee claim
will be rejected. Taking into
account that refugee law is essentially a means of preventing the
sending back of an individual to
a state in which a risk of
persecution on political grounds or opinion exists
’.
Suffice it to say that insofar as the drafter of the Appeal Board’s
reasons was purporting to summarise the
import of s 3(a) of the Act
in regard to the qualifications for refugee status, the summary gives
a misdirectedly narrow scope
to the provision. It actually
provides for refugee status to be afforded to any person who has a
well-founded fear of persecution
‘by reason of his or her race,
tribe, religion, nationality, political opinion or membership of a
particular social group’.
[28]
Section 3 of the Act falls to be read with
s 2, which incorporates the international law principle of
non-refoulement
.
[22]
Both provisions are to be construed generously in favour of persons
seeking to qualify for asylum. That much follows
from the
statute’s long title and preamble. The long title
describes the statute as an Act to ‘give effect within
the
Republic of South Africa to the relevant international legal
instruments, principles and standards relating to refugees; to
provide for the reception into South Africa of asylum seekers; to
regulate applications for and recognition of refugee status;
to
provide for the rights and obligations flowing from such status; and
to provide for matters connected therewith’.
The preamble
records that ‘South Africa has acceded to the 1951 Convention
Relating to Status of Refugees, the 1967 Protocol
Relating to the
Status of Refugees and the 1969 Organization of African Unity
Convention Governing the Specific Aspects of Refugee
Problems in
Africa as well as other human rights instruments, and has in so
doing, assumed certain obligations to receive and treat
in its
territory refugees in accordance with the standards and principles
established in international law’. As noted
in
Radjabu
supra, at para 4, s 2 of the Act is manifestly premised on the
expressions of the
non-refoulement
principle in Article 33 of the 1951 Convention and the 1969 OAU
Convention.
[23]
Section 6(1) of the Act expressly enjoins that the statute be
interpreted and applied with due regard to various international
instruments including the 1951 Convention and the 1969 OAU
Convention.
[29]
It is evident from the applicant’s
version of the facts that he fears persecution on account of his
perceived association
with the Nkundla rebel group. In my view,
taking the generous approach to the interpretation of the legislation
that is indicated,
the perceived association could reasonably be
characterised as either based on political opinion or membership of a
particular
social group. In its context, the term ‘particular
social group’ seems to me to denote a section of society that
is identifiable by the common characteristics of the persons
comprising it or of the basis for their mutual coherence.
[24]
A rebel group would qualify as such. The basis for the
existence of a group in rebellion against the established government
of a country would in any event ordinarily be some form of dissenting
political opinion. It would defeat the object of the
statute
were an applicant for asylum to be held to be disqualified because
his well-founded fear of persecution was founded on
his perceived
political opinion or his perceived membership of a particular social
group rather than his actual opinion or actual
membership. Thus
it did not matter for the purpose of his asylum application that the
applicant did not share the political
opinions of the rebel group or
had not voluntarily been a member of it.
[30]
Notwithstanding its flawed summary of the
import of s 3(a) of the Act, the Appeal Board assumed in the
applicant’s favour
on his version of the facts that he could
notionally have qualified under the provision. It rejected his
appeal on the basis
of a number of adverse credibility findings and
inferential conclusions. These were set out in the reasons
document as follows:
FINDING:
[12] In
reaching its decision the Board has thoroughly assessed the
appellant’s
claim and has had due regard to the objective
background information on the appellant’s country of origin.
Human Rights
Watch says Laurent Nkunda’s troops have been
implicated in numerous killings, torture and rapes.
[13] In
Principles of International Refugee Law
the learned
author Guy S. Goodwin-Gill states the following: “one of the
hardest tasks in refugee determination, and one
that is central to
the process, is assessing the credibility of the applicant….The
decision maker must assess not only the
credibility of the applicant,
but also the credibility of the story in itself…” This
means that the Board must be
convinced that the appellant is telling
the truth before it can consider the principal issues.
CREDIBILITY
The Appeal Board accordingly assessed the credibility of
the appellant’s story and makes the following remarks in
passing.
[14] The
Board would have given the appellant the benefit of the doubt if his
case
stopped where he managed to escape from the Kakwakunde village
to Kinshasa. It was the appellant’s case that he joined
the soldiers under duress & that he discovered the wrongfulness
of the soldiers conduct when he saw the soldiers raping people.
[15] The
fact that appellant was arrested in Kinshasa & subsequently
transferred
to a prison in Lubumbashi by virtue of being accused of
being a Nkunda rebel means that the arresting authority had concrete
evidence
to secure appellant’s arrest in Kinshasa. It is
therefore highly improbable as alleged that appellant merely received
training for a period of three months & that appellant was only
involved in the once-off fighting in Kakwakunde village as
alleged.
A more probable inference to be drawn is that appellant was by choice
a Nkunda rebel & that under the emblem
of the Laurent Nkunda he
was involved in gross human rights violations. The Board
therefore rejects appellant’s submission
that he has a
well-founded fear of being persecuted based on his membership of a
particular group, meaning being considered a rebel.
[16] The
Board also fails to understand why appellant did not remain to face a
military
trial whereby on his version he would’ve been given
indemnity for his role in the attack on Kakwakunde village.
Appellant
was an adult at all material times.
[31]
The basis for the inference by the Appeal
Board that the applicant’s arrest in Kinshasa and subsequent
detention in Lumbumbashi
meant that the arresting authority had
‘concrete evidence’ against him is not explained in the
reasons. It was
not in issue on the applicant’s version
that he had been a member of the Nkunda forces, albeit
involuntarily. That
would have been sufficient, by itself, to
explain his arrest. The leap in the Appeal Board’s
reasoning by inferring
from the mere fact of the applicant’s
arrest that it was ‘highly improbable…that [he] merely
received training
for a period of three months [and] that [he] was
only involved in the once-off fighting in Kakwakunde village’
is illogical.
Its illogicality is compounded by the further
determination that his arrest made it more probable that he had been
a willing
member of the rebel group and involved in ‘gross
human rights violations’.
[32]
If there were reason to believe that the
applicant had been involved in gross human rights violations, he
would be excluded from
obtaining asylum in terms of s 4(1)(a)
and/or (c) of the Act. Any relevant authority wishing on one of
the exclusionary
grounds in s 4 of the Act to deny refugee
status to a person who would otherwise qualify for asylum must have a
rational basis
for believing that the exclusionary ground applies in
the given case. It is apparent from the Appeal Board’s
reasons
that it found that there was reason to believe –
‘probable’, as the Board put it - that the appellant was
excluded
from qualification in terms of s 4.
[25]
That conclusion appears to have been entirely speculative.
There were no inherent probabilities to support the Board’s
finding and no indication that it was possessed of any information to
contradict the applicant’s version of the facts, which
is
irreconcilable with its finding. As it was, the Board expressed
its conclusion without any reference to s 4; it recorded
that it
rejected the applicant’s claim to have a well-founded fear of
persecution because he had been a willing member of
the rebel group
and had probably participated in gross human rights violations.
That, of course, is a non-sequitur in the
context of the applicant’s
uncontroverted version of events.
[33]
The statement in paragraph [16] of the
Board’s reasons is also difficult to understand. It
suggests that the appellant
might reasonably have expected to have
his version accepted in a fair judicial process in his home country.
It ignores completely
the applicant’s evidence that he was
detained in conditions in which he was subjected to gratuitous
physical abuse and in
a prison that was said to be notorious for the
torture and killing of its inmates.
[34]
In paragraph [18] of the reasons document
the Appeal Board considered whether the applicant had shown that he
had qualified for
refugee status in terms of s 3(b) of the Act
and concluded that he had not. It is not readily apparent why
the Board
undertook that exercise because his claim more evidently
fell to be considered with reference to s 3(a), but it may be
that
his legal representative made submissions in support of the
application on the basis of s 3(b) in the alternative.
This
might have been apparent had the record of proceedings been
available. Section 3(b) provides for refugee status to be
afforded
to a person who ‘owing to external aggression,
occupation, foreign domination or events seriously disturbing or
disrupting
public order in either a part or the whole of his or her
country of origin or nationality, is compelled to leave his or her
place
of habitual residence in order to seek refuge elsewhere’.
[35]
Paragraph [18] of the Appeal Board’s
reasons document goes as follows:
[18] The
Board having rejected appellant’s version in terms of S3(a) of
Act,
130 of 1998, will now proceed to deal with averments in terms of
S3(b) …; more specifically that appellant’s habitual
residence is Sud-Kivu. Appellant & his legal representative
failed to acknowledge Lumbumbashi as appellant’s habitual
residence and appellant & his legal representative failed to
address the Board as to what prevents appellant from returning
to
Lumbumbashi as appellant was not compelled to leave Lumbumbashi;
appellant unilaterally decided to leave Lumbumbashi to live
by his
uncle in Sud-Kivu. The Board finds that Lumbumbashi is
relatively stable & that nothing prevents appellant from
returning to Lumbumbashi. Appellant by choosing to flee his
country instead of remaining and facing a military trial cannot
use
this arrest to justify not being able to return to Lumbumbashi and or
Kinshasa.
[36]
The content of paragraph [18] of the
Board’s reasons would indicate that the Board assessed the
applicant’s connection
with Lumbumbashi without due regard to
his evidence. According to the evidence noted in the Board’s
reasons, the applicant
had left Lumbumbashi in 1998 or 1999 to live
in South Kivu Province. He was returned there several years
later by the DRC
authorities only for the purpose of detention in the
Kasapa Prison. As mentioned, his description of the
circumstances of
his detention was not consistent with any reasonable
expectation of a fair trial. The notion that he should
reasonably be
expected to have returned from South Africa to
Lumbumbashi is risible in the context of his version of the facts.
If the
Board was possessed of information that would cast doubt on
the applicant’s version, it did not disclose it in its reasons
and, as described, there are no opposing affidavits.
[37]
It is apparent from the Appeal Board’s
reasons – certainly when they are considered, as I have been
obliged to, without
reference to the record - that it approached the
applicant’s application sceptically. That is not the
proper approach
in such matters. In
Tantoush
v Refugee Appeal Board and Others
[2007] ZAGPHC 191
;
2008
(1) SA 232
(T), at para 196-197, Murphy J gave the
following summary, premised on the guidelines in the UNHCR Handbook,
of the manner
in which the Appeal Board should proceed:
196. Thus,
while the burden of proof in principle rests on the applicant, the
duty to
ascertain and evaluate all the relevant facts is shared
between the applicant and the examiner. Indeed in some cases, it may
be
for the examiner to use all the means at his disposal to produce
the necessary evidence in support of the application. Even such
independent research may not, however, always be successful and there
may be statements that are not susceptible of proof. In such
cases,
if the applicant's account appears credible, he should be given the
benefit of the doubt.
197. The
requirement of evidence should thus not be too strictly applied in
view of the
difficulty of proof inherent in the special situation in
which an applicant for refugee status finds himself. Allowance
for
such possible lack of evidence does not, however, mean that
unsupported statements must necessarily be accepted as true if they
are inconsistent with the general account put forward by the
applicant.
[38]
Moreover, according to the uncontroverted
allegations in the founding affidavit, the aforementioned inferences
drawn by the Appeal
Board were based on unfounded assumptions and
opinions that were not put to the applicant or his legal
representative during the
appeal hearing. Accepting the
correctness of these allegations, as I must in the circumstances,
enjoins the conclusion that
the conduct of the appeal hearing was
procedurally unfair.
[39]
It follows that the applicant has succeeded
in establishing a case for the review and setting aside of the Appeal
Board’s
decision in terms of s 6(2)(c), 6(2)(f)(ii)(cc) and
6(2)(h) of the Promotion of Administrative Justice Act 3 of 2000
(‘PAJA’).
He has done so mainly on the basis of the
Appeal Board’s reasons rather than his own averments concerning
the conduct of
the appeal hearing, in which regard his founding
affidavit was distinctly lacking. For example, his allegation
that ‘[t]first
to fourth respondents unfairly had regard to
documents which had been requested by my legal representative, but
which were withheld
by them’ was of little evidential value
absent any identification of the nature of the documents concerned,
details of the
time and manner in which their production had been
requested and the circumstances in which they had been withheld.
[40]
The applicant also applied for the review
and setting aside of the adverse determination made by the refugee
status determination
officer (the fifth respondent). Ms
Harvey
conceded that this was inappropriate, as the decision had been
overtaken by the decision of the Appeal Board, which had occurred
in
the context of the required exhaustion by the applicant of his
internal remedies. The question remains, however, whether
the
applicant is entitled to a declaration that the refugee status
determination’s decision or conduct had been inconsistent
with
the Constitution; see s 172 of the Constitution. In my
judgment he is not. The relevant allegations by the
applicant
in his founding affidavit are bald and amount to little more than a
statement of conclusions. The applicant appears
to almost to
have realised as much, pointing to the disadvantage he laboured under
without access to the record and purporting
to ‘reserve [his]
right to make further submissions’, presumably after the
administrative record had been produced.
He chose to proceed
with the application without availing of the mechanisms in the rules
of court to enforce compliance by the
respondents with their
obligation to produce the record. In the result his case in
this respect was inadequate.
[41]
As mentioned the applicant has sought
substitutive relief by way of an order declaring him to be ‘a
refugee who entitled to
asylum in South Africa as contemplated by
section 3
of the
Refugees Act&rsquo
;.
[26]
That course, as
s 8(1)(c)(ii)(aa)
of PAJA confirms, is indicated
only in exceptional circumstances. The prudent and proper
course when an administrative decision
is set aside on review is
almost always to remit it to the administrative functionary for
determination afresh. The relevant
principles in determining
whether the exceptional remedy of a judicially made substitutive
determination should be granted were
summarised, with reference to
earlier authority, in
Gauteng Gambling
Board v Silverstar Development Ltd and Others
2005 (4) SA 67
(SCA), at para 28-29, and discussed more
extensively in the recent judgment of the Constitutional Court in
Trencon Construction (Pty) Limited v
Industrial Development Corporation of South Africa Limited and
Another
[2015] ZACC 22
(26 June 2015),
at para 34-55.
[42]
The Constitutional Court emphasised that
the term ‘
exceptional
circumstances
’ in
s 8(1)
of
PAJA must be read contextually with the words ‘
just
and equitable
’ in the opening
words of the subsection.
[27]
As Khampepe J stated at para 35, ‘Simply put, an
exceptional circumstances enquiry must take place in the context
of
what is just and equitable in the circumstances’. The
notion of justness and equitability incorporates a notable
degree of
flexibility.
[28]
[43]
In
the current matter I consider that the following characteristics of
the case make it just and equitable that the exceptional
remedy
sought by the applicant be considered. The processing of his
application for refugee status has taken an inordinate
length of
time. He had been in the country on an asylum seeker’s
permit for seven and a half years before the determination
of his
appeal. A delay of that length cannot be ascribed to the
ordinary vicissitudes of litigation or bureaucracy.
The
respondents have put nothing before the court to explain or justify
it. Constitutional principles enjoin administrative
efficiency;
not as an abstract norm, but for the benefit and protection of all of
us who are unavoidably affected by various forms
of administrative
action to a greater or lesser degree. The principle is
reflected in the preamble to PAJA itself, in acknowledgement
of the
prescript in s 33(3)(c) of the Constitution.
[29]
It is also implicit in the basic values and
principles governing public administration set forth in s 195 of
the Constitution.
[44]
The
implications of the delay are that it was long enough for the
applicant to establish roots in the country. Two children
have
been born to him and his wife during that period. The
administration of the
Refugees Act falls
, according to its own
precepts, to be imbued with a humanitarian approach. The
adverse effect on the applicant’s family’s
sense of
security of further extending the delay in respect of determining
their right to live here is obvious. The holder
of an asylum
seeker permit furthermore does not enjoy the access that a refugee
does to travel documentation, health and education
benefits and
eventual qualification for permanent residence. In these
circumstances it would be just and equitable for a
substitutive order
to be made if the requirements for granting such exceptional relief
have been met. In short, an ‘exceptional
circumstances
enquiry’ is merited.
[45]
At para 43-46 of its judgment in
Trencon
Construction
the Constitutional Court
reiterated the contextual pertinence of the separation of powers in
terms of the Constitution and the concomitant
duty on courts engaged
in the consideration of a substitutive order in terms of s 8(1)
of PAJA to have due regard to the principle
of judicial deference to
administrators in the sense explained in
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC),
2004 (7) BCLR 687
at para 46-48. In
Bato
Star
loc. cit. the Court endorsed the
approval by Schutz JA in the appeal court of the view expressed by
Professor Cora Hoexter that
that type of judicial deference ‘
is
perfectly consistent with a concern for individual rights and a
refusal to tolerate corruption and maladministration. It
ought
to be shaped not by an unwillingness to scrutinise administrative
action, but by a careful weighing up of the need for –
and the
consequences of – judicial intervention. Above all, it
ought to be shaped by a conscious determination not
to usurp the
functions of administrative agencies; not to cross over from review
to appeal
’.
[30]
As Schutz JA explained, judicial deference in the relevant sense
‘does not imply judicial timidity or an unreadiness
to perform
the judicial function’.
[31]
It thus does not mean, as the Constitutional Court indeed confirmed
in
Trencon Construction
,
that when a review court is in as good a position as the
administrator to make the decision and the nature of the decision
that
should be made in the given circumstances is a foregone
conclusion it should refrain from taking the exceptional step of
making
a substitutive order if it is just and equitable in the
circumstances to do so.
[46]
The decision entailed in the current matter
falls to be made by testing a given set of facts against the
qualifying criteria prescribed
in the Act. The court is as well
qualified as the administrator to do that. The respondents have
not availed of the
opportunity to oppose the application and have not
given any indication of the existence of any information that might
give reason
for further investigation of the applicant’s
version, or indeed of any wish to enquire into the matter further.
In
that respect the application is significantly different from many
other similar matters in which the review is conceded, but a
substitutive order is opposed.
[32]
On the basis of the uncontroverted version of the applicant it is a
foregone conclusion that he should be given refugee status.
In
the peculiar circumstances, more particularly those discussed in
paragraphs [43]
and [44], above, as well as
the nature of the entirely misdirected approach to the applicant’s
asylum application by the Appeal
Board, it would not be fair to the
applicant to remit the matter for reconsideration. In the event
that the applicant’s
version should subsequently be shown to be
false in any material respect, the Standing Committee established in
terms of
s 9
of the
Refugees Act is
empowered in terms of s 36
of the Act to withdraw his refugee status. A substitutive order
thus holds no prejudice to
the state.
[47]
The following orders are made:
a)
The decision of the Refugee Appeal Board
dated 28 January 2015 dismissing the applicant’s appeal against
the decision by the
fifth respondent in terms of
section 24(3)(c)
of the
Refugees Act 130 of 1998
to reject the applicant’s
application for refugee status as ‘unfounded’ is reviewed
and set aside.
b)
In terms of section 8(1)(c)(ii)(aa) of the
Promotion of Administration of Justice Act 3 of 2000, the
aforementioned decision
of the Refugee Appeal Board is hereby
substituted with a decision setting aside the decision of the fifth
respondent and substituting
it with a decision in terms of
section
24(3)(a)
of the
Refugees Act granting
asylum to the applicant.
c)
The sixth respondent is directed to issue
the applicant with a formal written recognition of refugee status as
provided in
section 27(a)
of the
Refugees Act read
with the
provisions of regulation 15 of the Refugee Regulations (Forms and
Procedure), 2000 published in GN R366 in GG 21075 of
6 April 2000, as
amended by GN R938 in GG 21573 of 15 September 2000, within 10 days
of the service upon her of this Order.
d)
The costs of the application shall stand
over for determination on the return date of the orders set out in
paragraphs (e) and (f),
below.
e)
The first, second, third, fourth, fifth and
sixth respondents are hereby given notice to show cause on Thursday,
10 December 2015
at 10h00, or as soon thereafter as the matter be
heard, why an order should not issue holding them, or any one or more
of them,
personally liable, on the scale as between attorney and
client, for the additional costs incurred by the applicant as a
consequence
of this matter having had to be heard in the opposed
motion court rather than in the unopposed motion court in the
circumstances
described in paragraphs [2]-[19]
of
the judgment, and they are directed to deliver any affidavits they
may make in that regard before noon on Monday, 7 December
2015.
f)
The respondents are hereby given notice to
show cause on Thursday, 10 December 2015 at 10h00, or as soon
thereafter as the matter
may be heard, why the Registrar should not
be directed to forward a copy of this judgment to the Public
Protector for possible
investigation as foreshadowed in paragraph
[20]
of the judgment, and they are directed
to deliver any affidavits they may make in that regard before noon on
Monday, 7 December
2015.
A.G. BINNS-WARD
Judge of the High Court
[1]
Section 27(a) of the Act provides: ‘
A
refugee-
(a)
is entitled to a formal written
recognition of refugee status in the prescribed form
’
.
[2]
Published under GN R366 in
Government
Gazette
21075 of 6 April 2000, as
amended by GN R938 published in
Government
Gazette
21573 of 15 September 2000.
Regulation 15 provides for a system in terms of which a refugee’s
status as such falls
to be reconsidered at two year intervals unless
it is determined by the Standing Committee for Refugee Affairs
established in
terms of s 9 of the Act that the refugee will
remain a refugee for the foreseeable future, in which case
the refugee becomes entitled to apply for an immigration permit
.
[3]
In
Jockey Club of
South Africa v Forbes
[1992] ZASCA 237
;
1993 (1) SA 649
(A), at 660F, Kriegler AJA observed that when an applicant
institutes review proceedings by availing of the provisions of rule
53, the relevant functionary is ‘
obliged
[in terms of rule 53(1)(b)]
to forward
the record to the Registrar
’.
(My underlining.) In the current case the obligation was
buttressed by the terms of a court order.
[4]
Para 46 of the founding affidavit. A
B1-1590 form is the document that is completed at the stage that an
applicant for asylum
is interviewed by a refugee reception officer,
as provided in terms of s 21 of the Act. The refugee
reception officer
is required in terms of s 21(2)(d) of the Act
to submit the form, which makes up part of the application for
refugee status,
to the refugee status determination officer.
[5]
Para 47 of the founding affidavit.
[6]
Para 48 of the founding affidavit.
[7]
See
Mothaung v
Mukubela and Another, NNO; Motaung v Mothiba, NO
1975 (1) SA 618
(O), at 625-626.
[8]
See
SACCAWU and
Others v President, Industrial Tribunal, and Another
[2000] ZASCA 163
;
2001 (2) SA 277
(SCA), at para 7.
[9]
The seventh and eighth respondents were the
Minister of Home Affairs and the Director-General of the Department
of Home Affairs,
respectively.
[10]
The failure by attorneys to properly comply with
this duty has been described in a number of reported judgments as a
‘
gross discourtesy and a neglect
of their duties as officers of the court
’;
see
S v Ndima
1977 (3) SA 1095
(N), at 1097B-D, and
MacDonald
t/a Happy Days Café v Neethling
1990 (4) SA 30
(N), the latter judgment having been referred to with
approval in
Makuwa v Poslson
2007 (3) SA 84
(T), at para 11. See also
Transorient
Freight Transporters Corporation v Eurocargo Co-Ordinators
(Pty) Ltd
1984
(3) SA 542
(W), at 546B, where in the context of emphasising the
need for attorneys who withdraw during proceedings to comply
punctiliously
with rule 16, Flemming J remarked ‘
The
position of an attorney clearly creates obligations not only towards
his own client but also towards the Court and to some
extent to the
opposite party
’.
[11]
Radjabu
was a
judgment that I gave in September 2014 and the judgment in
Katsshingu
came
to my notice having been cited in Ms
Harvey
’s
heads of argument in another connection. Another judgment in
point that I stumbled upon in the course of preparing
this judgment
is
Mubala v Chairperson of the Standing
Committee for Refugee Affairs and Others
[2013] ZAWCHC 208
(8 November 2013). The problem is not confined to
the Western Cape; cf.
Bolanga v Refugee
Status Determination Officer and others
[2015] ZAKZDHC 13 (24 February 2015) (another case cited in the
applicant’s heads of argument), at para 5-7 and 54.
[12]
Bolanga v Refugee Status Determination Officer
and others
supra,
Harerimana
v Chairperson, Refugee Appeal Board and Others
2014 (5) SA 550
(WCC),
Katsshingu v
Chairperson of Standing Committee for Refugees Affairs and Others
[2011] ZAWCHC 480
(2 November 2011)
and
Katabana v Chairperson of Standing
Committee for Refugee Affairs and Others
[2012]
ZAGPPHC 362 (14 December 2012). See further the other
judgments mentioned in note 4 and at para 34 of
Radjabu
supra.
[13]
See s 21(2) of the Act.
[14]
United Nations High Commissioner for Refugees.
[15]
See s 24(1) of the Act.
[16]
It is not clear at this stage who is to blame, as
it would appear from the information given by Mr Kondlo from the bar
that he
dealt through an intermediary at the Department of Home
Affairs, one Ms Banjamme, for the purpose of taking and requesting
instructions.
He did, however, also say that certain members
of the Appeal Board and the sixth respondent had been furnished with
copies of
the order made on 5 August 2015.
[17]
The
Public Protector Act 23 of 1994
, as amended.
[18]
The reasons furnished by the Refugee Appeal
Board, which are discussed below, state that the applicant arrived
in South Africa
‘during January 2007’.
[19]
The court has no judicial knowledge of Kasapa
Prison or the conditions there, but the first to fifth respondents,
who, as described
above, have investigative powers and the
opportunity to consult with UNHCR representatives to obtain
information, have seen fit
not to challenge the evidence.
[20]
The challenging conditions at the refugee
reception offices in Cape Town from time to time at the various
addresses at which it
has been housed over the years have been
described in a number of judgments of this court; see
Kiliko
and Others v Minister of Home Affairs and Others
2006 (4) SA 114
(C);
Intercape Ferreira
Mainliner (Pty) Ltd and Others v Minister of Home Affairs and Others
2010 (5) SA 367
(WCC) and
410 Voortrekker
Road Property Holdings CC v Minister of Home Affairs and Others
2010 (8) BCLR 785 (WCC), [2010] 4 All SA 414.
[21]
Form RAB (01).
[22]
Section 2
provides:
General prohibition of refusal of entry, expulsion,
extradition or return to other country in certain circumstances
Notwithstanding any provision of this Act or any other law to the
contrary, no person may be refused entry into the Republic,
expelled, extradited or returned to any other country or be subject
to any similar measure, if as a result of such refusal, expulsion,
extradition, return or other measure, such person is compelled to
return to or remain in a country where-
(a)
he or she may be subjected to persecution on account of his or her
race, religion, nationality, political opinion or membership of a
particular social group; or
(b)
his or her life, physical safety or freedom would be threatened
on
account of external aggression, occupation, foreign domination or
other events seriously disturbing or disrupting public order
in
either part or the whole of that country.
[23]
Article 33 of the 1951 Convention provides:
‘
No Contracting State shall expel
or return ('refouler') a refugee in any manner whatsoever to the
frontiers of territories where
his life or freedom would be
threatened on account of his race, religion, nationality, membership
of a particular social group
or political opinion
’.
Article 11(3) pf the 1969 OAU Convention provides: ‘
No
person shall be subjected by a Member State to measures such as
rejection at the frontier, return or expulsion, which would
compel
him to return to or remain in a territory where his life, physical
integrity or liberty would be threatened for the reasons
set out in
Article I, paragraphs 1 and 2
’.
Paragraph 2 of Article I of the OAU Convention provides: ‘
The
term “refugee” shall also apply to every person who,
owing to external aggression, occupation, foreign domination
or
events seriously disturbing public order in either part or the whole
of his country of origin or nationality, is compelled
to leave his
place of habitual residence in order to seek refuge in another place
outside his country of origin or nationality
’.
[24]
In
Mayemba v Chairperson of Standing Committee for Refugee
Affairs and Others
[2015] ZAWCHC 86
(10 June 2015), it was
argued that all young men in South Kivu who were vulnerable to
forced recruitment into armed forces
comprised ‘
a
particular social group
’ within the meaning of the
provision (see para 35-37 of the judgment). That argument
strikes me as ambitious
because it seems to involve equating innate
vulnerability to forced recruitment by virtue of age and gender with
‘
persecution
’ within the meaning of s 3(a)
of the Act, which I find problematic. I would have thought
that young men who
felt compelled to leave their homes due to such
circumstances would find surer succour in s 3(b). Rogers
J, however,
found it unnecessary to decide the point in the context
of his conclusion that the merits of that particular case fell to be
assessed in a fresh application for refugee status, which he
directed the applicant to submit for determination by a different
refugee status determination officer.
[25]
Section 4 of the Act provides:
(1) A person
does not qualify for refugee status for the purposes of this Act if
there is reason to believe that he or she-
(a)
has committed a crime against peace, a war crime or a crime against
humanity, as defined in any international legal instrument dealing
with any such crimes; or
(b)
has committed a crime which is not of a political nature and which,
if committed in the Republic, would be punishable by imprisonment;
or
(c)
has been guilty of acts contrary to the objects and principles of
the United Nations Organisation or the Organisation of African
Unity; or
(d)
enjoys the protection of any other country in which he or she has
taken residence
.
[26]
Para 3 of Part B of the notice of motion.
[27]
The relevant provisions of s 8(1) of PAJA read as follows:
(1) The court
or tribunal, in proceedings for judicial review in terms of section
6 (1), may grant any order that is just and
equitable, including
orders-
(a)
directing the administrator-
(i)
….; or
(ii)
….;
(b)
….;
(c)
setting aside the administrative action and-
(i)
remitting the matter for reconsideration by the administrator,
with
or without directions; or
(ii)
in exceptional cases-
(aa)
substituting or varying the administrative action or correcting a
defect
resulting from the administrative action;
[28]
Trencon Construction
supra,
at para 55.
[29]
Section 33(3)(c) of the Constitution requires the enactment of
legislation to give effect to the rights to just administrative
action in terms of s 33(1) and (2) and which must ‘
promote
an efficient administration
’.
[30]
Hoexter,
The Future
of Judicial Review in South African Administrative Law
(2000) 117 SALJ 484
at 501-2.
[31]
Minister of Environmental Affairs and Tourism
and others v Phambili Fisheries (Pty) Ltd and another
[2003]
2 All SA 616
(SCA), at para 47-50.
[32]
Cf. e.g.
Radjabu
supra and
Mayemba
supra.