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[2016] ZAWCHC 123
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Ahmed and Others v Minister of Home Affairs and Another (3096/2016) [2016] ZAWCHC 123; [2016] 4 All SA 864 (WCC); 2017 (2) SA 417 (WCC) (21 September 2016)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
CASE
NO: 3096/2016
DATE:
21 SEPTEMBER 2016
REPORTABLE
In the matter
between:
TASHRIQ
AHMED
..........................................................................................................
First
Applicant
ARIFA MUSADDIK
FAHME
.....................................................................................
Second
Applicant
KUZIKESA JULES
VALERY
SWINDA
.....................................................................
Third
Applicant
JABBAR
AHMED
........................................................................................................
Fourth
Applicant
And
THE MINISTER OF HOME
AFFAIRS
.....................................................................
First
Respondent
THE
DIRECTOR-GENERAL OF HOME
AFFAIRS
...........................................
Second
Respondent
Heard: 6 June 2016
Delivered: 21
September 2016
JUDGMENT
SHER,
AJ:
[1] This matter lies at
the intersection of immigration and refugee law, and their competing
interests and principles. The essential
question it poses is whether
a failed asylum seeker is entitled to apply for a temporary residence
permit or “
visa
” as it is known, in terms of our
current immigration law.
[2] A central tenet
of immigration law is founded on the accepted maxim of international
law “
that every sovereign nation
has the power, as inherent in sovereignty, and essential to
self-preservation, to forbid the entrance
of foreigners within its
dominions, or to admit them only in such cases and upon such
conditions as it may see fit to prescribe”
.
[1]
As such, immigration law is essentially about control over the
admission of foreigners, or so-called “
aliens”
as they are commonly referred to
,
and as such “
states the world over
consistently have exhibited great reluctance to give up their
sovereign right to decide which persons will,
and which will not, be
admitted to their territory and be given a right to settle
there”
.
[2]
[3] On the other
hand, fundamental to refugee law (at least in respect of States who
are parties to international instruments such
as the 1951 Convention
Relating to the Status of Refugees (hereinafter “
the
Refugee Convention”
), the 1967
Protocol Relating to the Status of Refugees, and the 1969
Organisation of African Unity Convention Governing the Specific

Aspects of Refugee Problems in Africa (hereinafter “
the
OAU Refugee Convention”
) to which
South Africa has acceded), is the principle that such states have a
duty, in terms of international law, to give refuge
to aliens who are
fleeing from persecution, and a duty not to return or surrender them
to countries where their life or freedom
would be in danger on
account of their race, religion, nationality, membership of a
particular social group or the political opinion
they hold.
This principle of “
non
refoulement”
as enshrined in the
Refugee Convention
[3]
is central to refugee and asylum seeker law.  As the House of
Lords pointed out in
R (European Roma
Rights Centre)
,
[4]
the Refugee Convention itself represents a compromise between
competing interests ie the need to provide for the humane treatment

of refugees from oppression and the right of sovereign States to
exercise control over those who seek admission to their countries.

But that said, refugee law is essentially about the protection of
vulnerable groups of people or individuals.  This is because,
as
Prof James Hathaway points out,
[5]
a refugee’s rights are determined by virtue of their status
alone and as such, refugees must be protected by their host States

unless and until a negative determination is made against them.
This is because refugee status arises out of a predicament
rather
than from a formal determination of status ie the recognition of
refugee status does not make a person a refugee, but declares
him or
her to be one. This case is about balancing these competing interests
and principles.
[4] It comes at a time
when many countries are having to deal with waves of foreigners who
are seeking to claim asylum, or who are
migrating in search of a
better life, because of conflict and civil strife in their
homelands.  Over the course of the last
year thousands of
displaced people have fled countries in turmoil or in a state of war,
such as Syria and Libya, and travelling
by boat or on foot, have
sought refuge in member states of the European Union. And as a
response many countries are reviewing their
immigration and refugee
policies.
[5] Closer to home,
the United Nations High Commissioner for Refugees (“
UNHCR”
)
recently reported
[6]
that as at the end of 2015 there were some 1.5 million ‘internally
displaced persons’ in the Democratic Republic of
the Congo
alone, and in South Sudan some 2.3 million people have
been forced to flee their homes, of which 650 000
have fled to
Ethiopia, Kenya and Uganda and 1.65 million remain displaced
inside their country despite a peace agreement having
been signed in
August 2015.  Last year, some 234 000 Burundians were
forced to flee into neighbouring territories and
more than 18 million
African refugees, internally displaced people and people at risk of
statelessness received assistance
from the UNHCR.  The South
African regional office of the UNHCR reportedly spent in the order of
USD 12. 9 million
on refugee programmes last year.
[7]
It is common knowledge that South Africa too has faced an increase in
asylum seekers as well as illegal migrants from a number
of countries
north of our borders.  Recently, the Supreme Court of Appeal
warned in
Somali Association of South
Africa and Ors v Limpopo Department of Economic Development
Environment and Tourism and Ors
,
[8]
that “
the frustration experienced
by the authorities as they deal with a burgeoning asylum seeker and
refugee population must not blind
them to their constitutional and
international obligations”
and
must “
especially not be allowed to
diminish their humanity”.
[6] In
MSS
v Belgium and Greece
,
[9]
the European Court of Human Rights similarly warned out that although
States can take steps to prevent unlawful immigration, and
have a
“
legitimate concern to foil”
increasingly frequent attempts to circumvent immigration law, they
must also not deprive asylum seekers of the protections afforded
by
the Refugee Convention and the European Convention on Human Rights,
for “
the end does not justify the
use of no matter what means”
.
[10]
The application
(i) The facts
:
[7] First applicant is an
attorney who specialises in migration law, and the bulk of his
clients are asylum seekers.  He has
represented second to fourth
applicants in their various dealings with the authorities as outlined
hereunder, and has joined in
the application in the interests of the
general public, and of his clients in particular. He seeks no relief
in is own name.
[8] Second, third
and fourth applicants are failed asylum seekers. Second applicant,
Arifa Fahme, is an Indian citizen who was issued
with an “
asylum
seeker’s temporary permit”
on or about 3 June 2009, in terms of s 22 of the Refugees
Act,
[11]
which permit was subsequently extended 12 times.  The last
extension, which was valid for 5 months, was granted on 28 September

2015.  On 10 March 2002 Mrs Fahme was married to Musaddik
Hanif Fahme in Dapoli, India.  Mr Fahme is the holder
of a
general work permit which was issued by the Department of Home
Affairs in terms of the Immigration Act
[12]
on 25 March 2015, and which is valid for 5 (five) years, until
20 March 2020.  In terms of this permit, Mr Fahme
is
entitled to work for the Piketberg Bazaar as a Manager.  The
Fahmes have 4 (four) children, who are living with them in
South
Africa and whose ages range between 14 and 4 years of age.  In
terms of her permit, Mrs Fahme had the right to reside
temporarily in
this country for the purpose of applying for asylum in terms of the
Refugees Act.  It is common cause that
Mrs Fahme’s
application for asylum was rejected (although the date when this
occurred has not been set out in the respondents’
papers).
[9] Mrs Fahme
contends that she is entitled to apply for a visitor’s permit,
or “
visa
”
(as it is more properly referred to in terms of current legislation)
permitting her to stay in the country temporarily with
her husband
while he is here in terms of his general work permit, by virtue of
the provisions of s 11(1)(b)(iv) of the Immigration
Act, read
with Regulation 11(4)(a) thereof,
[13]
which provides that a visitor’s visa may be issued to the
spouse or dependent child, of the holder of a visa of the kind
issued
to Mrs Fahme’s husband, in certain circumstances.  It
appears that some time earlier this year, Mrs Fahme attempted
to
apply for such a visitor’s visa by lodging an application in
this regard with VFS Global, an entity which acts as agent
for the
Department of Home Affairs, and which refused to accept it.  On
19 February 2016, VFS Global indicated in an e-mail
which it sent to
the first applicant (who was acting on behalf of Mrs Fahme), that
they were not accepting any applications from
asylum seekers for
temporary visas in terms of the Immigration Act, pursuant to
Immigration Directive No 21 of 2015 (hereinafter
“
Directive
21
”), which was issued by the
Director-General of the Department of Home Affairs (who is the second
respondent herein) on 3 February
2016. It is common cause that
prior to the issue of this Directive, and for the last 13 years or
so, the Department of Home Affairs
has been processing applications
from failed asylum seekers for temporary residence visas in terms of
the Immigration Act.
The provisions of Directive 21 read as
follows:
“
IMMIGRATION
DIRECTIVE NO 21 0F 2015:
WITHDRAWAL OF
CIRCULAR NO 10 OF 2008 CONFIRMING THE 11 NOVEMBER 2003 DABONE
COURT ORDER
Section 21
of The
Refugees Act, No. 130 of 1998
provides the conditions under which a
section 22
Asylum Seeker Permit may be issued.  These
conditions which at all times should not be in conflict with the
Constitution of
the Republic of South Africa, 1996 or international
law are determined and endorsed by the Standing Committee for
Refugees Affairs
(SCRA).
The management and
issuance of asylum seeker permits is administered through the
Refugees Act while
the management and the regulation of admission of
other foreigners, their residence in, and their departure from the
Republic and
for matters connected therewith is done through the
Immigration Act, No. 13 of 2002
.
It is the considered
view of the Department that no change of condition or status should
be premised on the provisions of the
Immigration Act for
a holder of
an asylum seeker permit whose claim to asylum has not been formally
recognized by SCRA.
Section 27(c)
of the
Refugees Act stipulates
that a Refugee is entitled to apply for an
Immigration permit
after five years’ continuous
residence in the Republic from the date on which he or she was
granted asylum, if the Standing
Committee certifies that he or she
will remain a refugee indefinitely.
The immigration permit
referred to in the
Refugees Act is
the permanent residence permit of
section 27(d)
of the
Immigration Act.  It
therefore follows that
a holder of an asylum seeker permit who has not been certified as a
Refugee may not apply for a temporary
residence visa or permanent
residence permit.
In view of the above
provisions I wish to advise all immigration officials that Department
Circular No 10 of 2008 has fallen away
since the 26
th
of
May 2014 and is hereby officially withdrawn.
All applications for
change of status from asylum seeker permit to temporary residence
visa which are still pending in the system
should be processed as per
this directive regardless of the date of application”
.
[10] Third
applicant, Kuzikesa Swinda, is a citizen of the Democratic Republic
of the Congo.  Pursuant to an application which
he made in this
regard on 19 April 2010, he was similarly granted an asylum
seeker’s temporary permit which was subsequently
extended on 13
occasions, with the last such extension being valid to 1 August
2016.  His application for asylum was
similarly rejected on an
unknown date and is currently on appeal before the Refugees Appeal
Board.
[14]
Mr Swinda has also sought to apply for a visa allowing him to sojourn
temporarily in the Republic of South Africa, in terms
of the
Immigration Act.  In
his case, he has made application for the
issue of a so-called “
critical
skills visa”
,
[15]
as he is an “
information
technology specialist”
, which
apparently is a “
critical skill”
listed in the Regulations to the
Immigration Act.  His
application for such a visa was rejected on 4 January 2016, on
the basis that his asylum claim was still subject to an appeal
before
the Refugees Appeal Board, which could result in the rejection of his
application for refugee status being set aside or
confirmed.  On
18 January 2016 first applicant  lodged an appeal against the
rejection of third applicant’s application
for a visa, which is
still pending.
[16]
[11] Fourth applicant,
Jabbar Ahmed, is a Pakistani national who, it appears, was granted an
asylum seeker’s temporary permit
on or about 26 September
2014, which was subsequently extended twice, with the last such
extension being vaild for a period
of 6 months, until 26 October
2015.  As in the case of the other applicants, his application
for refugee status has also
been rejected, and subsequent thereto, Mr
Ahmed similarly made application for a “
critical skills
visa”
on the basis that he was employed as a sheep-shearer,
an occupation which is allegedly also listed as a “
critical
skill”
in terms of the Immigration Regulations.  His
application too, was rejected on the basis that his application for
the grant
of asylum was still pending before the Refugee Appeals
Board. On 19 October 2015, first applicant similarly lodged an
appeal
against the refusal to consider his application for a visa,
which is also still pending.
(ii) The parties’
contentions
:
[12] The applicants
seek an Order declaring Directive 21 to be inconsistent with the
Constitution and invalid, and setting it aside.
They claim that the
contents of the Directive are irrational and are based on an
incorrect interpretation of certain provisions
of the Refugees and
Immigration Acts. They also contend that Directive 21 is inconsistent
with, and contrary to, the provisions
of an Order which was granted
by this Court by agreement between the self-same respondents in this
matter and a number of applicants
who were also asylum seekers, in
2003.  That Order is referred to as the “
Dabone”
Order, which was the surname of the first applicant in that matter.
The applicants contend that the effect of the
Dabone
Order was to direct officials of the
Department of Home Affairs to accept applications for visas or
permanent residence permits
from foreigners, even though they might
be asylum seekers whose application for refugee status was still
pending.  The applicants
contend that there is no basis in logic
or law to prevent foreigners who may happen to be asylum seekers in
terms of the
Refugees Act, from
making application for visas or
permanent residence permits in terms of the
Immigration Act, should
they comply with the conditions prescribed for such visas or
permits.  Consequently, they contend that the Department of Home

Affairs should be directed to consider second and third applicants’
appeal against the rejection of their application for
‘critical
skills’ visas in the light thereof.  As for second
applicant, it is contended that the respondents’
refusal even
to permit her to apply for a visa is a violation of her
constitutional right to dignity, contrary to the decision
of the
Constitutional Court in the matter of
Dawood
and Ano v Minister of Home Affairs and Ors; Shalabi and Ano v
Minister of Home Affairs and Ors; Thomas and Ano v Minister
of Home
Affairs and Ors
.
[17]
Consequently, the applicants not only seek an Order setting aside
Directive 21, but also an Order directing the respondents
to comply
with the
Dabone
Order,
together with certain ancillary relief thereto, and an Order that the
second applicant be permitted to submit an application
for a
visitor’s visa in terms of the relevant provisions of the
Immigration Act.
[13
] The respondents in
turn contend that the
Dabone
Order was not only “
clearly
incorrect”
and as a result this Court should decline to
follow it, but is also unconstitutional as it breaches the principle
of separation
of powers.  In support of these contentions the
respondents aver that the
Dabone
Order has resulted in
absurdity in certain respects, and is inconsistent with certain
Regulations to the
Immigration Act which
have subsequently been
promulgated.  In addition, according to the respondents the
Dabone
Order runs contrary to the “
ipsma verba”
(sic) of the
Refugees Act and
the
Immigration Act.  Respondents
maintain that the two statutes deal with “
conceptually
difference scenarios”
(sic) ie with asylum seekers and
refugees (in terms of the
Refugees Act) on
the one hand and
immigrants (under the
Immigration Act) on
the other and the
legislature has seen fit “
to make only one single allowance
for “cross pollination””
(sic) between the two
Acts.  Consequently, respondents contend that save for this
single instance, asylum seekers and refugees
are regulated
exclusively by the provisions of the
Refugees Act, and
asylum seekers
are not at liberty to make application for any form of visa in terms
of the
Immigration Act.
Some
guiding principles
[14] Although this matter
is principally concerned with issues of interpretation of the
provisions of the Refugees and Immigration
Acts, regrettably, neither
of the parties sought to really engage with such issues and the
submissions which were made in this
regard were rather cursory. In
the main, the parties’ arguments revolved around the terms of
the
Dabone
Order and their interpretation, and no real
consideration was given to an analysis of the historical origins and
context of the
two statutes under discussion, nor was there an
attempt made to analyse the legislative scheme of each statute.  In
the circumstances,
it is necessary for me to start by setting out
what I believe are the relevant principles of interpretation which
should guide
me.
[15] In the first
place, inasmuch as interpretation is an exercise in attributing
meaning to the words used in a statute,
[18]
consideration must be given to the language used in the light of the
ordinary rules of grammar and syntax, in the context of the
statute
as a whole and the relevant circumstances which were attendant upon
its coming into existence.
[19]
But context is not limited to the language of the rest of the statute
“
as throwing light of a dictionary
kind on the part to be interpreted”
and
“
often of more importance is the
matter of the statute, its apparent scope and purpose and within
limits, its background”
.
[20]
The Constitutional Court has also pointed out that context also
includes the socio-economic and institutional context in
which the
statutory provisions in question function.
[21]
In seeking to arrive at a meaning of the provisions in question, the
court is not, as was previously the approach adopted,
so much seeking
to divine or ascertain the intention of the legislature
[22]
(a genuflective approach based on an era when parliament reigned
supreme) as it is concerned with ascertaining the objective
purpose
of the legislation.
[23]
[16] In the second
place, inasmuch as the process of interpretation “
is
a co-operative venture between legislator and judge, bounded by
mutually understood rules, in which the latter seeks to give
meaning
to the text enacted by the former”
,
[24]
a court is required to remember to stay within its assigned role and
not to stray outside of it into “
amendment,
enactment or innovation”
.
[25]
As the Constitutional Court put it, a court cannot “
fill
the gap”
.
[26]
In this regard, there is a presumption that the legislature has dealt
exhaustively with the subject of an enactment and it
is thus not for
courts to fill  omissions in it, and courts are not at liberty
to supplement statutes by providing what they
surmise the legislature
omitted therefrom.
[27]
[17] Most
importantly, at all times when interpreting the legislation
concerned, the court is required to do so through the prism
of the
Constitution,
[28]
and it is duty-bound to promote the spirit, purport and objects of
the Bill of Rights,
[29]
particularly where the legislative enactments implicate or affect any
such rights.
[30]
And where legislative enactments limit or intrude upon constitutional
rights, they must be interpreted in a manner which
is “
least
restrictive”
of such rights, if
the text is reasonably capable of bearing such a meaning.
[31]
In addition, where constitutional rights are implicated, the Court is
to prefer a “
generous”
construction over a merely textual or legalistic one in order to
afford those affected the fullest possible protection of their

constitutional “
guarantees”
.
[32]
[18] Finally, and
insofar as it is still permissible to speak of legislative intent (as
opposed to textual meaning), the provisions
of the Acts must be read
in the context of the presumption that unless a contrary intention
clearly appears from the language,
the legislature did not intend
“
unfair, unjust or unreasonable
results to flow from its enactments
”
[33]
and the legislation was not meant to be absurd or anomalous.
[34]
And where the court is faced with two or more possible
interpretations, it will not favour an interpretation which leads to
“
impractical, unbusinesslike or
oppressive
” consequences that
will “
stultify
”
the operation of the legislation.
[35]
The historical context
[19] In a paper
entitled “
Asylum and Refugee
Policies in Southern Africa: A Historical Perspective”
,
[36]
Dr Bonaventure Rutinwa has identified three generations of asylum and
refugee policies and laws in countries in Southern Africa.
The
first generation, which owes its origins to the post-colonial period,
commenced at the beginning of the 1960s when thousands
of refugees
fled from the former Portuguese colonies of Angola and Mozambique in
order to escape the civil wars which were being
fought for
independence, and the wars for liberation from racist minority rule
in the then South West Africa,  Southern Rhodesia,
and later
South Africa, in the 1970s and 1980s.
[20] The first generation
of such refugee policies was characterised by the absence of “
refugee
specific”
laws, with refugee matters generally being dealt
with as part of immigration policy and law in general, which at that
time concerned
itself principally with issues of entry and residence
by foreigners, without providing much, if anything, in the way of
refugee
protection.
[21] The second
generation of refugee policies led to the introduction of refugee
specific laws which were mainly aimed at controlling
rather than
protecting refugees.
[37]
These laws vested a wide discretionary power in functionaries to
determine who was to be treated as a refugee and permitted
expulsion
of refugees back to their countries of origin, at whim, contrary to
the principle of
non refoulement
.
[38]
But, as Dr Rutinwa has pointed out, paradoxically, notwithstanding
the draconian nature of much of this legislation, in practice
refugee
policy was protectionist and most refugees were not returned to
countries where they might face persecution, and the standards
of
treatment of refugees were generally reasonable.
[39]
[22] From the early
1980s, a new generation of refugee laws began to be passed in
countries in Southern Africa.
[40]
This third generation of laws sought to bring refugee policy in line
with international humanitarian law by adopting the
extended
definition of a refugee in terms of the Refugee Convention
[41]
and the  OAU (Refugee) Convention, and the principle of
non
refoulement
. In this regard South
Africa’s Refugees Act, which was enacted in 1998, similarly
sought to give effect to these Conventions
and principles.
[23] But,
notwithstanding the advent of a democratic dispensation and the
adoption of the Constitution in 1994, and lagging behind
advances
made by other countries in the Southern African region, until the
passing of the
Refugees Act, South
Africa still treated refugees in
terms of its second generation immigration-based law, to wit, the
then Aliens Control Act of 1991.
[42]
As Rutinwa points out, the central element of the system of control
which was effected under this Act, was the concept of
a “
prohibited”
person, which included all foreigners who were not in
possession of a valid passport and visa at the time of their entry
into South
Africa.  Applicants for asylum were either granted
temporary permits allowing them to enter and remain in the country
for
a restricted period of time,
[43]
or alternatively, were granted exemption from the prescribed entry
and residence requirements of the Act, on the grounds of special

circumstances.
[44]
As Rutinwa explains the consequence of applying ordinary immigration
laws to refugees resulted in a tendency to label all
asylum seekers
as illegal immigrants,
[45]
and the law was ever increasingly unable to cope with the mass influx
of asylum seekers, as it was based on a legislative system
aimed at
dealing with the regulation of the admission of foreigners on an
individualized and
ad hoc
basis.
[24] Johnson
[46]
has outlined how the post-1994 immigration regime was initiated by a
consultative process which resulted in a draft Green Paper
on
migration, which was prepared by civil society, government officials
and international scholars.  The Green Paper proposed
a
rights-based legal immigration framework (with a refugee-specific
chapter therein), a collectivised approach to the sharing of
the
burden of refugees in the region as a whole, and an inclusive
approach to regional migration that sought to address irregular

immigration through increased means for legal participation in the
economy.  However, the resulting legislation that culminated
in
the
Refugees Act
"largely
avoided”
[47]
many of the Green Paper’s recommendations, and the draft Bill
which was produced instead originated from internal drafting

attempts, and emphasised a bureaucratic approach to refugee
protection based on a policy that it still fell within the ambit of

migration control.
[48]
Despite these shortcomings, the regime which has been established by
the
Refugees Act, which
is based on individualised refugee status
determinations, and which allows asylum seekers the right to freedom
of movement within
the country and the right to assimilate (instead
of being confined to refugee camps, as in the case of many other
countries in
Africa), as well as the right to work and study,
[49]
was lauded by the UNHCR in 2007 as being one of the most advanced and
progressive systems of refugee protection, in the world.
[50]
[25] However, as against the “
strong
legal framework”
within which refugees are offered
protection in terms of the
Refugees Act, Johnson
points out that in
practice, refugee protection “
has existed uneasily next to
the country’s immigration regime”
with its focus on
immigration control, particularly in the context of undocumented
migrants.
[51]
In his view, the
Immigration Act and
its accompanying regulations
have established a “
restrictive”
immigration
regime that “
facilitates immigration for highly skilled
immigrants but offers few options for low-skilled workers”
.
[52]
As a result “
the lack of legal options under the
Immigration
Act has
led many migrants to lodge asylum claims to temporarily and
imperfectly legalise their sojourn”
.
[53]
This has resulted in an ever increasing number of asylum
applications, many of which are without a legitimate basis, which

stretch the resources and capacity of the Department of Home Affairs
to effectively administer the asylum system as well as the

immigration system.
[54]
According to Johnson this restrictive immigration regime, which is
focused on exclusion, has exacerbated the tension between
the formal
protection offered under the
Refugees Act and
the exclusionary
immigration regime envisaged in the
Immigration Act, as
a result of
which refugee protection is largely “
subsumed by immigration
concerns”
.
[55]
Previously, in terms of the predecessor statute to the
Immigration
Act,
[56
]
foreigners were able to apply for a number of lower-end “
temporary
residence permits”
,
[57]
which included work, business and work-seekers’ permits which
did not require the lodging of onerous financial guarantees.
[58]
In contrast to this the current Act does not provide for work
seekers’ permits, and has made provision for ‘high-end’

immigration by way of new visas such as retirement
[59]
visas (for so-called ‘high net worth’ individuals), and
so-called business visas which allow for the admission of foreigners

who invest capital or establish businesses, in the country.
[60]
[26] Recently, in a further draft Green
Paper on migration, the government has proposed the re-introduction
of a work-seekers’
visa to enable migrants from neighbouring
countries to come to our shores in search of better opportunities,
without the stratagem
of applying for asylum in order to do so.
An overview of the legislative
scheme of the Immigration and Refugee Acts
[27] In order to determine whether a
failed asylum seeker is excluded from applying for the right to
“
sojourn”
in the country by applying for a visa
which will allow him or her to remain temporarily, regard must be had
for the legislative
scheme of the two Acts in question and whether
there are any express or implied contra-indications to such a
construction, therein.
[28] In its preamble, the
Immigration
Act states
that its aim is to provide for the regulation of admission
of “
foreigners”
to, their residence in and their
departure from the Republic and for matters “
connected”
therewith. Foreigners are defined as individuals who are not
citizens.
[61]
The Act has the following objectives: (i) to set in place a
“
new”
system of immigration control which will
ensure that visas and residence permits will be issued as
expeditiously as possible on
the basis of objective, predictable and
“
reasonable”
requirements and criteria
[62]
(ii) to promote economic growth  through “
the
employment of needed foreign labour”
, facilitating foreign
investment and enabling the entry of “
exceptionally skilled
or qualified”
people  thereby increasing “
skilled”
human resources, and to facilitate academic exchanges
[63]
(iii) to ensure that the South African economy will have access “
at
all times to the full measure of needed contributions by
foreigners”
[64]
(sic) and (iv) immigration control will be performed within the
“
highest applicable standards of human rights
protection”
[65]
in such a way that the international obligations of the Republic will
be complied with
[66]
and a human rights based culture of enforcement will be
promoted.
[67]
[29] The types of “
visas”
and permanent residence permits which can be issued to a foreigner in
terms of the Act, are set out in ss 10 – 23 (in respect
of
temporary residence) and ss 25 – 27 (in regard to
permanent residence).  Amongst the 12 types of temporary
residence permits or “
visas”
by means of which a
foreigner may sojourn temporarily in the Republic are visitors’,
[68]
study,
[69]
business,
[70]
relatives’,
[71]
work,
[72]
retirement,
[73]
and so-called exchange
[74]
visas.  As far as work visas are concerned, two types are
provided for ie a general work visa which may be issued to a
foreigner
who complies with certain prescribed requirements
[75]
and a so-called “
critical skills”
visa
[76]
which may be issued to an individual who possesses such skills or
qualifications as may be determined to be “
critical”
for the country, from time to time, by the Minister. Visas may also
be issued to members of the immediate family of such skilled

foreigners, under such circumstances as may be prescribed by the
Director-General.
[77]
[30] A number of the aforesaid visas
are predicated upon some form of financial or human capital
investment in the country, in line
with the aims and objectives set
out in the preamble to the Act.  In this regard, the business
visa
[78]
requires an investment of a prescribed financial or capital
contribution or the employment of a certain number of persons, the

work visa
[79]
envisages the contribution of human capital in the form of critical
skills, amongst others, the retired person visa
[80]
provides for individuals with a prescribed high net worth and with
sufficient pension, annuity, or retirement funding to be allowed
into
the country, the corporate visa
[81]
caters for the situation where corporate entities set up facilities
to employ foreigners in SA, and the exchange visa
[82]
may be issued to foreigners who participate in a programme of
cultural, economic or social exchange, administered by an organ of

state or a learning institution.
[31] As far as permanent residence
permits are concerned the
Immigration Act distinguishes
between those
which may be granted to foreigners on the grounds of “
direct
residence
”
[83]
and those to whom permanent residence may be granted “
on
other grounds
”.
[84]
[32] As regard the former, the Act
provides that the Director-General may issue a permanent residence
permit to any foreigner who
has been the holder of a work visa for 5
years and has received an offer for permanent employment.
[85]
As regards the latter, the Director-General may issue a permanent
residence permit to any foreigner who is of “
good and sound
character
” and who has received an offer for permanent
employment in respect of a position for which no suitably qualified
citizen
or permanent resident is available to fill it;
[86]
or  who possesses extraordinary skills or qualifications;
[87]
or who intends to establish a business in the Republic or to invest a
prescribed financial or capital contribution therein as determined
to
be “
in the national interest”
.
[88]
[33] There are also provisions in the
Act for the issue of either temporary or permanent residence permits,
in certain prescribed
circumstances, to foreigners who are the
spouses of citizens or permanent residents, or relatives of such
persons within the first
degree of kinship.
[89]
[34] The preamble to the
Refugees Act
provides
that whereas South Africa has acceded to the Refugees
Convention, the 1967 Protocol relating to the Status of Refugees and
the
OAU (Refugees) Convention as well as other human rights
instruments, it has assumed certain obligations to receive and treat
refugees
in its territory in accordance with standards and principles
established in international law.  Accordingly, the purpose of

the Act is said to be to give effect to the aforesaid relevant
international legal instruments and the principles and standards

applicable to refugees, and to provide for the reception into South
Africa of asylum seekers, and to regulate applications for
and the
recognition of refugee status, and to provide for matters connected
therewith.  The Act makes a distinction between
two types of
persons: 1) “
refugees”,
being persons who have
been granted asylum in terms of the Act after having made application
therefor according to certain prescribed
requirements and conditions
and 2) “
asylum seekers”
being persons who seek
recognition as refugees ie who are making application for such
status.
[90]
[35] In order to apply for asylum, an
application must be made in person to a Refugee Reception
Officer,
[91]
and pending the outcome thereof the Officer must issue to the
applicant an “
asylum seeker permit”
which will
allow the applicant to sojourn in the Republic temporarily, subject
to any conditions which may imposed, which may not
be in conflict
with the Constitution or international law.
[92]
Once application has been made for asylum, no legal proceedings may
be instituted against the asylum seeker in respect of
his/her
unlawful entry into or presence in the Republic, until the outcome
thereof, and until the applicant has had an opportunity
to exhaust
his or her rights of review or appeal.
[93]
[36] A Refugee Status Determination
Officer must consider the application and may either grant asylum or
reject the application
as being “
manifestly
unfounded,
abusive or fraudulent”
[94]
or simply as being “
unfounded
”.
[95]
Depending on the reason for rejection, the applicant either has a
right to review such decision,
[96]
or alternatively, may lodge an appeal with the Refugees Appeal
Board.
[97]
[37] In the event that an asylum seeker
is successful and obtains refugee status, he/she is entitled to a
formal written recognition
thereof
[98]
and will enjoy “
full legal protection”
which
includes the rights set out in Chapter 2 of the Constitution and the
right to remain in the country.
[99]
The Act also provides that a person’s refugee status may be
withdrawn if he/she was recognised as a refugee erroneously
as a
result of an application which was materially incorrect or false, or
which was made fraudulently or in a misleading manner,
or where such
person ceases to qualify for refugee status in terms of the
Act.
[100]
In this regard the Act provides that a person ceases to qualify for
refugee status if he or she voluntarily re-avails himself
of the
protection of the country of his nationality or re-acquires such
nationality (if he previously lost it), or if he voluntarily

re-establishes himself in the country which he left, or acquires the
nationality of some other country and enjoys its protection.
[101]
In addition, a person is also liable to have his refugee status
withdrawn if he can no longer continue to refuse to avail
himself of
the protection of the country of his nationality because the
circumstances in connection with which he has been recognised
as a
refugee, have ceased to exist.
[102]
An evaluation
[38] As pointed out above, the
respondents contend that save for one instance of “
cross-pollination”
(sic), the two statutes in question are hermetically sealed off from
one another and, as a result, asylum seekers and refugees
fall to be
dealt with in terms of the
Refugees Act exclusively
, and all other
foreigners, including immigrants and migrants, are to be dealt with
under and in terms of the
Immigration Act.  In
regard to the
averred single instance of “
cross-pollination”,
the respondents make reference to
s 27(c)
of the
Refugees Act
which
provides that a refugee is entitled to apply for an
“
immigration permit”
in terms of the
Immigration
Act
[103
]
after 5 years’ continuous residence in the Republic, from the
date on which he or she was granted asylum, if the Standing
Committee
on Refugee Affairs
[104]
certifies that he or she will remain a refugee indefinitely.
Respondents contend that the reference to an immigration permit
in
terms of the
Immigration Act, must
mean the permanent residence
permit which may be issued to a refugee who is of “
good and
sound character”
in terms of
s 27(d)
of the
Immigration Act.  As
it stands, however, the current wording of
s 27(c)
of the
Refugees Act is
such that it could be read to
include not only a permanent residence permit (in terms of
s 27(d)
of
the
Immigration Act), but
also any one or more of the temporary
residence permits or “
visas”
as they are currently
known, provided for therein.  Although I cannot see why a
refugee who has been resident in the country
for 5 years and who is
entitled to obtain a permanent residence permit would ever want to
obtain temporary status in terms of a
visa under the
Immigration Act,
there
may, nonetheless, be situations where a refugee may want to
rather elect to obtain temporary status under one or other visa, for

some reason, rather than to apply to obtain permanent residence. And
there may be instances where a refugee cannot apply for a
permanent
residence permit because he does not comply with the prescribed
requirements therefor, but is eligible to meet the requirements

necessary to apply for a temporary permit ie a visa.
[39] In terms of the provisions of the
Refugees Amendment Act 33 of 2008
[105]
(which will come into effect on a date to be proclaimed),
s 27(c)
of the
Refugees Act will
be amended to provide, expressly, that a
refugee will be entitled to permanent residence in terms of
s 27(d)
of the
Immigration Act (ie
by way of a permanent residence permit as
referred to in this sub-section of the
Immigration Act), after
5
years of continuous residence in the Republic from the date on which
he was granted asylum (if the relevant functionary
[106]
after considering all the relevant factors and within a reasonable
period of time, certifies that he or she will remain a refugee

indefinitely).  In the circumstances, the respondents are
probably correct in their reading of the current wording of the

relevant corresponding provisions of the two Acts and the meaning
which should be ascribed thereto.
[107]
But it is not necessary for me to make a finding on this, and nothing
that I have said herein should be construed as if I have
done so.
[40] Applicants contend that the fact
that refugees may be entitled to apply for a permanent residence
permit in terms of the
Immigration Act after
5 years’
continuous residence in the Republic, in the circumstances outlined
in the relevant provision in the
Refugees Act, does
not necessarily
mean that asylum seekers, who have not yet obtained refugee status,
may not seek to apply for temporary residence
permits ie visas, or
even permanent residence permits, in terms of the
Immigration Act. On
the other hand, respondents contend that the fact that the
legislature saw fit, in the
Refugees Act, to
only provide for
refugees to have a right to apply for a permit in terms of the
Immigration Act, is
a clear indication that the legislature intended
that asylum seekers were not to have such a right.
[41] There are two comments that can be
made in response to this. Firstly, the fact that the legislature may
not have expressly
granted such a right to asylum seekers, does not
in itself necessarily mean that the legislature deliberately intended
to exclude
them from having such a right. Our courts have found, in
numerous instances before, that although the legislature may not have
expressly catered for a certain eventuality or situation, it is
nonetheless implicitly covered by the legislative provisions in

question. It is always a matter of interpretation, having regard to
the overall purpose of the statutory provisions, and their
context.
Secondly, there are indications from certain proposed amendments to
the
Refugees Act which
are scheduled to come into effect in the
future, of what the legislature’s intentions are in regard to
this issue.
[42] Currently, the provisions of
s 27
of the
Refugees Act (which
fall under Chapter 5 of the Act, and which
is presently entitled “
The Rights and Obligations of
Refugees”)
, do not make provision for any express, specific
rights for asylum seekers and the provisions of this Chapter (of
which s 27 is
one), all only refer to the protection and rights of
refugees, and not of asylum seekers.  However, in terms of
certain proposed
amendments in terms of the
Refugees Amendment Act 33
of 2008
, the heading of Chapter 5 will be amended to refer to the
rights and obligations, not only of refugees, but also of asylum
seekers,
and a new section ie
s 27(A)
will be inserted into the
Refugees Act which
will specifically deal with rights of protection
for asylum seekers.  To this end, the proposed amendment will
provide that
as in the case of refugees, an asylum seeker will be
entitled to formal written recognition of his status, pending the
outcome
of his application for asylum
[108]
and will have the right to remain in the Republic pending the
finalisation of such application,
[109]
the right not to be unlawfully arrested or detained,
[110]
and the protection of the rights set out in the Constitution, insofar
as such rights may apply to an asylum seeker.
[111]
[43] Can it be said then that, in the
light of the current wording of the
Refugees Act (and
in the light of
the proposed future amendments thereto as outlined above), asylum
seekers are necessarily precluded from seeking
to rely on the
provisions of the
Immigration Act, and
may not apply for temporary
residence rights by way of a visa in terms of the
Immigration Act?
[44
] In my view, the answer to this
question lies in a holistic, contextual interpretation of both Acts
in the light of the language
of their legislative scheme and the
legislative purpose they are directed at ie the objectives they seek
to achieve, viewed through
the prism of the Constitution.  As I
see it, they should be read and evaluated in a complementary fashion,
and should not
be treated as separate and distinct legislative
regimes, insulated save for where the point where they expressly
intersect by way
of provisions which cross-refer to one another, such
as s 27 of both Acts.
[45] In my view, the best place to
start the exercise is with the provisions of the
Immigration Act.
It
is a far wider and more encompassing statute than the
Refugees
Act, which
pertinently seeks to deal with refugees and asylum seekers
only.  In contrast to this, the
Immigration Act provides
for the
regulation of the admission of all “
persons”
to,
their residence in and their departure from the Republic and to this
end, the Act distinguishes between citizens
[112]
and “
foreigners”,
who are defined as individuals
who are not citizens.   As such, on an ordinary reading
therefore, the group of persons
covered by the Act encompasses all
manner of foreigners including visitors, and those seeking temporary
or permanent residence
because they are migrants in search of better
opportunities and, in my view, for the reasons set out hereinafter,
would also include
persons such as failed asylum seekers in search of
refugee status, save where they are expressly excluded, or save where
a contrary
intention clearly appears from the text. Applicants
rightly point out that if it was intended to exclude asylum seekers
or refugees
from the provisions of the
Immigration Act, the
legislature could have expressly provided for them to be excluded in
the definition of a ‘foreigner’, or in regard
to their
eligibility to apply for temporary residence rights by way of the
various visas referred to, but it has not done so.
[46] Respondents point out that
foreigners seeking to enter the country legally are ordinarily
[113]
required in terms of the
Immigration Act to
make application for the
appropriate visa which may be applicable to them (and which will
grant them temporary rights of sojourn),
from outside of the country
ie before they arrive at a port of entry.  In this regard the
Act provides
[114]
that any foreigner who enters the Republic is required to produce on
demand a valid “
port of entry”
visa to an
immigration officer.  To this end, amongst others, the study,
business, medical treatment, relative, work, retirement
and exchange
programme visas previously referred to are deemed
[115]
to be valid port of entry visas.  Respondents point out that
asylum seekers on the other hand are expressly dealt with in
terms of
certain provisions of the
Refugees Act which
require that any person
seeking asylum must do so by applying in person at a Refugee
Reception Office,
[116]
at which point the Refugee Reception Officer is obliged, pending the
outcome of the application for asylum, to issue to the applicant
an
asylum seeker permit in the prescribed form in terms of the
Refugees
Act,
[117
]
which will allow him or her to sojourn in the Republic temporarily.
Consequently, respondents submit it was clearly intended
by the
legislature to make a distinction between asylum seekers who obtain
temporary residence rights in the country by way of
a permit in terms
of the
Refugees Act once
they are inside the country, and other
foreigners, who must generally obtain such rights by applying for
visas before they enter
the country, and from outside it, in terms of
the
Immigration Act. Consequently
there is a distinct difference
between the various permits which these two disparate groups of
persons require to obtain in order
to lawfully enter and remain in
the country and respondents contend thus that the entry and sojourn
of asylum seekers in South
Africa is regulated solely by the
Refugees
Act.
>
[47] Respondents have, however, failed
to have regard for
ss 10(A)(2)(x)
and
23
of the
Immigration
Act.  These
provisions provide that a foreigner who, at a port
of entry claims to be an asylum seeker, may be issued by the
Director-General
with an “
asylum transit”
visa,
which is deemed to be a valid port of entry visa and which will grant
such asylum seeker the right to enter the country and
the right to
travel to the nearest Refugee Reception Office in order to apply for
asylum, within a period of 5 days. So, on the
face of it, the first
permit which an asylum seeker may obtain on entering the country, and
which affords him the right to enter
and to remain in the country
temporarily, is a permit or visa in terms of the
Immigration Act and
not the
Refugees Act.  The
asylum seeker permit referred to in
the
Refugees Act
[118
]
is only issued once the asylum seeker has duly reported to the
Refugee Reception Officer under the protection of an asylum transit

visa granted in terms of the
Immigration Act, and
lodges an
application for asylum.  Thus, when an asylum seeker and
potential refugee comes into the country, he does so in
terms of the
Immigration Act.  A
nd, on my reading of the two statutes, the
same position holds when he is required to leave the Republic.
In this regard,
s 23(2)
of the
Immigration Act provides
that in
the event that the asylum transit visa granted to an asylum seeker
expires before the holder thereof  reports at a
Refugee
Reception Office in order to apply for asylum in terms of the
Refugees Act, he/she
shall become an illegal foreigner and shall be
dealt with in accordance with the
Immigration Act.  Similarly
, a
failed asylum seeker ie an asylum seeker whose application for asylum
has either been rejected by a Refugee Status Determination

Officer
[119]
or by the Standing Committee on Refugee Affairs on review
[120]
or on appeal by the Refugees Appeal Board,
[121]
as well as any asylum seeker whose asylum seeker permit has been
withdrawn,
[122]
and any refugee whose refugee status has been withdrawn
[123]
in terms of the
Refugees Act, becomes
liable to be arrested and
detained, and to be dealt with as a prohibited person under the
Immigration Act.
[124
]
So, when having to exit the country under compulsion, the mechanisms
and legislative provisions generally applicable to such
persons are
those in terms of the
Immigration Act and
not the
Refugees Act.
[125
]
The
Refugees Amendment Act 33 of 2008
and the Refugees Amendment Act
12 of 2011, will provide, when they come into operation, for the
introduction of a new sub-section
to section 24
[126]
of the Act, which will stipulate that an asylum seeker whose
application for asylum has been rejected must
[127]
be dealt with in terms of the
Immigration Act; and
after certain
proposed amendments to
s 36
, it will also continue to provide
[128]
that a person whose refugee status is withdrawn, must be dealt with
in terms of the
Immigration Act unless
he or she has lodged an
appeal.
[48] In the circumstances, at the two
extreme ends of the spectrum of movement of an asylum seeker or
refugee into and out of the
country there are clearly provisions in
the
Immigration Act which
are applicable, and which regulate their
right to be in the country.
[49] I can find nothing in either Act
(read together as they stand as well as in the light of the envisaged
amendents I have referred
to), which would, in my view make it
inherently inimical or offensive to their legislative scheme, for a
failed asylum seeker to
apply for temporary residence and work rights
under the
Immigration Act.  I
am mindful of the provisions of
s
22(2)
of the
Refugees Act which
state that upon the issue of an
asylum seeker permit, any permit which was issued to the applicant in
terms of the
Immigration Act, becomes
null and void (and which,
notwithstanding, the section also requires must be returned to the
Director-General for “
cancellation”)
.  This
is clearly an indication that the legislature did not intend for a
foreigner who holds temporary residence rights in
terms of the
Immigration Act to
hang on to such rights and status in the event
that he seeks to be dealt with as a refugee, and it may be argued
that this constitutes
an indication that a foreigner who is a
temporary resident, cannot also be an asylum seeker, at the same
time. To my mind, however,
this does not necessarily mean that a
failed asylum seeker ie one whose application for asylum has been
rejected or withdrawn,
or a failed refugee ie a refugee whose status
has been withdrawn, cannot subsequent thereto, make application for
temporary residence
rights in terms of the
Immigration Act, and
there
is no express provision in either Act barring such a course of
action.
[50] There are, in fact, further
indications in the
Immigration Act that
favour the construction that
a failed asylum seeker may apply for residency rights in terms of the
Immigration Act.  In
this regard,
s 32(1)
provides that any
illegal foreigner shall depart unless authorised by the
Director-General to remain in the Republic “
pending his or
her application for a status”
and ‘status’ is
defined to mean status under and in terms of the
Immigration Act.  As
I read this provision, a failed asylum seeker or refugee who reverts
to be dealt with under the
Immigration Act as
an illegal foreigner
when he loses his status under the
Refugees Act, can
thus expressly
be authorised to remain in the country in terms of the
Immigration
Act, pending
the outcome of an application he might wish to lodge for
a visa.
[51] I am mindful that the definition
of an “
illegal foreigner”
, in terms of the
Immigration Act means
a foreigner who is in the Republic in
contravention of such Act.  However, inasmuch as the
Refugees
Act provides
that persons who have lost their status as asylum
seekers or refugees, as pointed out above, fall to be dealt with
under the
Immigration Act, in
the absence of any status being
afforded to them in terms of such Act they constitute illegal
foreigners in terms thereof and thus
to my mind the provisions of the
Immigration Act, including
s 32
, are applicable to failed asylum
seekers and ex-refugees, who may be granted permission by the
Director-General to remain in the
Republic pending their application
for a status under and in terms of the
Immigration Act, be
it
temporary or permanent.
[52] The respondents also pointed out
that in terms of
s 9(4)(a)
and (b) of the
Immigration Act, a
foreigner who is not the holder of a permanent residence permit,
[129]
in terms of the
Immigration Act, may
only enter the Republic if he
has a valid passport and has been issued with a valid visa in terms
of the Act.  Their submission
was that, in the circumstances, a
failed asylum seeker or refugee will not be able to comply with these
provisions, as in numerous
instances he or she will not have a valid
passport and would not have been issued with a valid visa prior to
entering the country.
There are two ripostes to this
submission.  In the first place, and as I have previously
pointed out, one of the visas referred
to in the
Immigration Act in
terms of which a foreigner may be granted leave to enter and to
remain in the country, is an asylum transit visa.
[130]
This is a visa which is issued and obtained at a port of entry, and
not from outside the country. In the second place, it
may be pointed
out that all of the applicants in this matter are in possession, on
the face of it, of valid passports.  There
may be instances
where asylum seekers or refugees are not in possession of a passport
and an issue may arise as to whether they
may be entitled to apply
for status under and in terms of the
Immigration Act, but
this is not
something upon which I need to pronounce upon or determine in this
matter and I expressly refrain from doing so.
Thirdly, the
provisions of
s 9(4)
of the
Immigration Act are
, in my view,
only applicable at the moment of
entry
of a foreigner into the
Republic.  An asylum seeker who accordingly enters the Republic
with a valid passport and is who issued
with a valid visa in terms of
s 23
of the
Immigration Act in
order to apply for asylum in
terms of the
Refugees Act, thus
complies with these provisions.
If such person later becomes a failed asylum seeker or failed
refugee, in my view, the provisions
of
s 9(4)
do not serve to
bar him or her from seeking to obtain temporary or permanent
residence status in terms of the
Immigration Act thereafter
, as these
provisions no longer regulate the asylum seeker’s status at
that point in time.
[53] It must also be pointed out that
s
9(4)(b)
does not explicitly state that the visa must be issued
outside the country, only that a foreigner may enter the country if
he has
been
issued
with a valid visa, and s 10(3) of the Act
simply provides that if a visa is issued outside the Republic, it is
deemed to be of
force and effect only after admission. Thus, there is
some ambiguity present as to whether or not all visas need
necessarily to
be obtained from outside the country, if one reads s
9(4) and 10(3) together. It may be a requirement of the Regulations
that visas
must be obtained from outside the country, and before
entry, but this is not a requirement expressly in terms of the Act.
In addition
it must be noted that a visitor’s visa ie a visa
which is ordinarily obtained outside of the country for the purpose
of visiting
and residing with someone therein, is not one of the
visas listed as a “
port of entry visa”
in terms of
s 10A of the Act, although it is referred to in s 10(2)
thereof.  In the circumstances, any foreigner
who enters the
Republic for the purposes of applying for asylum and who is issued
with a valid “
asylum transit
” visa in terms of the
Immigration Act,
[131
]
and who later becomes a failed asylum seeker, is, to my mind, a
foreigner who has complied with the provisions of
ss 9(4)
and
10A
of the
Immigration Act; and
provided he or she otherwise complies
with the requirements of s 11 of the Act (in regard to the
necessary financial or other
guarantees required in respect of his or
her departure), there is no reason why he or she cannot apply for a
visitor’s visa
in terms thereof, from inside the country.
[54]
S 11(6)
of the
Immigration Act
provides
that a visitor’s visa may be issued to a foreigner who
is the spouse of a citizen or permanent resident.
[132]
I cannot see any reason why, in logic or fairness, a person such as
the second applicant who is the spouse of a temporary
resident and
who, it is not disputed, is living with her husband and four children
in this country, should not similarly be entitled
to apply for a
visitor’s visa in terms of
s 11.
[133]
Regulation 11(4)(a) of the Immigration Regulations provides that a
visitor’s visa may be issued to the spouse or dependant
child
of the holder of a work visa which has been issued in terms of s 19
of the Act, in certain circumstances. The issue I have
to deal with
is whether or not there is any bar, in principle and in law, why a
failed asylum seeker such as the second applicant
cannot make
application to be issued with such a visa.  Such an application
may well be approved by the relevant authorities.
It is only in
the event that it were to be rejected for wont of compliance with one
or other condition as may be prescribed in
terms of the aforesaid
sections or the Regulations, that the legality or constitutionality
of the terms of such legislation or
Regulations becomes an issue. It
will be evident from the cases referred to herein that the courts
have not hesitated, in appropriate
circumstances, to strike down
provisions of the Immigration Regulations or of the Act, where these
have been found to be unconstitutional.
This is however not an
issue which arises in this matter, nor is it a decision which I am
called upon to make. All that second
applicant asks for is that she
be permitted to make application for a visitor’s visa, and for
it to be duly considered.
[55] As the applicants also point out,
the Act provides that the Minister may, for good cause, waive any
prescribed requirement,
[134]
and there was no suggestion by the respondents that any of the
requirements necessary to obtain either a visitor’s visa (in

the case of the second applicant) or a so-called critical skills visa
(in the case of third and fourth applicants) could not be
so waived
by the Minister if he or she deemed it appropriate.
[56] In
S v Makwanyane and Ano
[135]
the Constitutional Court recognised the importance of dignity as a
foundational value of the Constitution and held that the
constitutional
rights to life and dignity were the most important of
all human rights, and the source of all other personal rights
enshrined in
the Bill of Rights.
[136]
In a number of judgments both the Constitutional Court and the
Supreme Court of Appeal have struck down provisions of immigration

legislation which conflicted with the right to dignity.
[57] In
Lawyers for Human Rights v
Minister of Home Affairs
[137]
the Constitutional Court held that where the Constitution provides
that a constitutional right is available to “
everyone”
it should be given its ordinary meaning ie it should be understood to
apply to all persons, both citizens as well as foreigners,
including
those who may be physically in the country but have not been granted
formal permission to enter and remain.
[138]
Consequently whereas the Constitution provides that only citizens
have the right to enter, remain and reside in South Africa
and the
right to a passport,
[139]
all persons in the country have the right to have their dignity
respected.  The Court warned that “
the very fabric of
our society and the values embodied in our Constitution could be
demeaned if the freedom and dignity of illegal
foreigners are
violated in the process of preserving our national integrity”
.
[140]
[58] In
Minister of Home Affairs and
Ors v Watchenuka and Ano
,
[141]
Nugent JA pointed out that:
“
Human dignity has no
nationality.  It is inherent in all people – citizens and
non-citizens alike – simply because
they are human.  And
whilst that person happens to be in this country – for whatever
reason – it must be respected,
and is protected by s 10 of
the Bill of Rights”
.
[142]
[59] Consequently, and notwithstanding
that the right to enter and to remain in the Republic, and the right
to choose a specific
trade, occupation or profession are rights which
are reserved to citizens in terms of the Bill of Rights,
[143]
the Supreme Court of Appeal held in
Watchenuka
that where a
foreigner may be destitute and has sought to exercise his right to
apply for asylum, a general prohibition on him being
able to
work
[144]
constitutes an unjustifiable limitation of his right to dignity.
[60] In
Dawood and Ano v Minister of
Home Affairs and Ors; Shalabi and Ano v Minister of Home Affairs and
Ors; Thomas and Ano v Minister
of Home Affairs and Ors
,
[145]
the Constitutional Court was concerned with the circumstances in
which foreign spouses of South African residents were required
to
make application for the issue of permanent residence permits
(referred to at that time as “
immigration permits”)
in terms of the Aliens Control Act 96 of 1991.  The Act provided
that an application for such a permit had to be made in the
country
of which the applicant held a valid passport, or in which he or she
normally lived, and could thus not be made from within
South Africa.
[61] The effect of the provisions in
question was that a South African citizen who was married to a
foreigner was forced to choose
between going abroad with his or her
partner, whilst their application for permanent residence was being
considered, or to remain
behind in the country, on their own.
The Court pointed out that marriage and family were social
institutions of “
vital importance”
.
[146]
The institution of marriage gave rise to moral and legal obligations
on both spouses including a reciprocal duty of support and

cohabitation and joint responsibility for supporting and raising
children born of the marriage.
[147]
Article 23 of the International Covenant on Civil and Political
Rights (to which South Africa has acceded) provides that
the family
is the “
natural and fundamental group unit of society”
and is entitled to protection by the State
[148]
and the African Charter on Human and Peoples Rights (to which South
Africa has also acceded), provides similarly that the family,
as the
“
natural unit and basis of society”
shall be
protected by the State.
[149]
The Court held that although the Constitution contained no express
provision protecting the right to family life or the right
of spouses
to cohabit, their right to dignity was infringed in the case of any
legislation that significantly impaired their ability
to honour their
marital obligations to one another.
[150]
In the circumstances, the Court held that the relevant provisions of
the Aliens Control Act which compelled applicants for
permanent
residence permits to be out of the country at the time of their
application violated their rights of dignity.
[62] In
Booysen and Ors v Minister
of Home Affairs and Ano
[151]
the Constitutional Court similarly found that a provision in the
Aliens Control Act
[152]
which stipulated that an application for a work permit could only be
made by a foreign national who was married to a local South
African,
whilst he or she was out of the Republic, similarly constituted a
violation of such foreign national’s right to
dignity, as the
effect thereof was to impair the ability of the spouses to honour
their marital obligations to one another, because
it effectively
prevented the foreign spouse from working and from fulfilling his or
her duty of support.
[63] I can see no reason in principle
or law, why the decisions in
Dawood
and
Booysen
are not
of application in this matter.  Second applicant contends that
the refusal by the Department of Home Affairs to even
permit her to
apply for a visitor’s visa in order for her to remain with her
spouse, who has been granted the right to work
and to remain lawfully
in the country until 2020 in terms of a general work visa, will have
the effect of impairing their marital
relationship and the duties of
support and cohabitation which they owe to one another as spouses.
It also impacts upon the
family unit and the duty which they both
have to jointly rear their children. As I previously pointed out the
Act provides that
a foreign spouse of a citizen or permanent resident
may, provided the prescribed requirements are complied with, apply
for a visitor’s
visa.  I can see no rational reason why,
in law or fairness, the foreign spouse of a foreign temporary
resident (ie a foreign
national who is lawfully in this country
together with his family in terms of a visa, and who has the right to
work and to reside
in the country temporarily), should not similarly
be entitled to at least apply for the temporary right to sojourn with
her spouse
until the expiry of his visa. To my mind, it could not
have been intended by the legislature that such an anomalous and
unjust
distinction should be made between the two such foreigners,
who are both married to persons lawfully entitled to be in the
country.
In my view, to exclude persons such as the second applicant
in such circumstances would be contrary to the spirit, purport and
object of the Bill of Rights and the refusal by the Department to
even entertain an application from second applicant in this regard

constitutes an unjustifiable violation of her right to dignity as
well as that of her spouse.
[64] As far as the second and third
applicants are concerned, they seek an order that the second
respondent be directed to consider
their appeals against their
refusal of an application for a critical skills visa, in the light of
this judgment and that they should
make a decision in the appeal
within 2 weeks from date of the order that issues. As I have pointed
out above, amongst the principal
aims and objectives of the
Immigration Act, according
to its preamble, is to promote economic
growth through the employment of “
needed foreign labour”
and to enable the entry of “
exceptionally skilled or
qualified people”
thereby increasing our “
skilled
human resources”
.
[153]
In the light of these stated aims and objectives, one would have
imagined that foreigners who have exceptional or rare skills
of which
there is a shortage in this country, would be given every incentive
and assistance to apply for permission to work in
this country. Once
again, I can discern no reason why, in the light of the legislative
scheme of the two Acts in question and the
aims and objectives of the
Immigration Act in
particular, a failed asylum seeker should not be
entitled to apply for temporary work rights by way of an application
for a critical
skills visa
[154]
in terms of the
Immigration Act, if
he or she is possessed of such
skills and otherwise meets the prescribed requirements. In fact, to
recognize that skilled foreigners
may apply for a ‘critical
skills’ visa in such circumstances, would further the aims and
objectives of the Act. There
was no suggestion that either third or
fourth applicant were not
bona fide
in their applications for
a ‘critical skills’ visa, nor was it suggested that
second applicant was not motivated by
a genuine need and desire to
live with her husband and children, and to care and support them.
[65] One can postulate a number of
other situations where failed asylum seekers or refugees should have
the right to apply for temporary
residence by way of the appropriate
visa in terms of the
Immigration Act. So
, for example, why can the
wealthy politician from a neigbouring country who flees his homeland,
obtains an asylum seeker permit
and eventually refugee status, but
before he can apply for permanent residence has such status withdrawn
by the Department of Home
Affairs because the underlying
circumstances which gave rise to his having to flee his country no
longer exist, not apply for a
retirement visa, if he qualifies for
it?  And what about the prominent academic who comes to the
country on the basis of a
work visa and cannot return to his country
of origin because a civil war has broken out, and he thus applies for
an asylum seeker
permit, but does not obtain refugee status because
hostilities have ceased by that time. Why can he not apply for a
study visa?
[65] I understand that there are
foreigners who abuse the immigration system and who try to circumvent
it by applying for asylum
in terms of the
Refugees Act at
the moment
of entry into the country, thereby obtaining an asylum seeker’s
permit as of right, and who then play the system
and gain a foothold
in the country for a number of years until their application
ultimately fails, at which point they seek to
obtain temporary
residence rights in the country by applying for a visa in terms of
the
Immigration Act, with
the aim of ultimately obtaining permanent
residence. This is a matter of serious concern as such persons
effectively seek to enter
this country via the proverbial ‘back-door’
and thereby become an administrative, financial and legal burden to
the
state, and deplete its resources, which are severely stretched as
it is, and barely able to cover its own citizens’ needs.
But,
to my mind, this is an issue which can and should be dealt with by
means of proper and timeous enforcement of the law and
due attention
to asylum seeker claims, and the fashioning of a legislative remedy
if needs be, and is not something that should
serve to prevent
legitimate failed asylum seekers who can make a valuable contribution
to the country and its economy, from being
able to make application
to remain in the country, temporarily in terms of the
Immigration
Act.
Conclusion
[66] In
Pharmaceutical Manufacturers
Association of SA and Ano: In re Ex parte President of the Republic
of South Africa and Ors
[155]
the Constitutional Court held that it was a requirement of the rule
of law and the principle of legality which is an incident of
it, that
the exercise of public power by functionaries of the State should not
be arbitrary and their decisions should be rationally
connected to
the purpose for which the power was given, otherwise such decisions
and any actions taken pursuant thereto would be
similarly be
arbitrary and unconstitutional.
[67] In my view, in stating in
Directive 21 that, because
s 27(c)
of the
Refugees Act, read
together
with the provisions of
s 27(d)
of the
Immigration Act provides
that a
refugee with 5 years continuous residence in the country may be
entitled to apply for a permanent residence permit, it “
therefore
follows
” that the holder of an asylum seeker permit who has
not been certified as a refugee may not apply for a temporary
residence
permit in terms of the
Immigration Act, second
respondent
acted arbitrarily and irrationally. He jumped to a conclusion that is
not borne out by a proper interpretation of the
provisions in the
context of the two Acts as a whole, for the reasons I have set out
above.
[67] In the circumstances the
provisions of Directive 21 are arbitrary and liable to be set aside
on that ground alone as well as
on the grounds that they are
inconsistent with the Constitution, on the basis that they offend
against second applicant’s
rights to dignity in terms of s 10
of the Constitution.
[68] The parties were
ad idem
that
in the event the Court were to declare that the provisions of
Directive 21 were unconstitutional, the applicants would fall
to be
dealt with in terms of the dispensation which applied prior to the
issue of the said Directive.  This dispensation was
regulated by
the provisions of Circular 10 of 2008.  In terms of paragraph 2
of said Circular, asylum seekers in possession
of an asylum seeker
permit,
[156]
were allowed to apply for any one of the visas contemplated in the
Immigration Act. This
dispensation was one that was in effect for 8
years, since the issue of the Circular, and for some 13 years since
the
Dabone
Order.
[69] The parties were further in
agreement that in the event that the provisions of Directive 21 were
found to be unconstitutional
and were to be struck down, it would not
be necessary for the Court to deal with the provisions of paragraph 3
of the Notice of
Motion, in terms of which the applicants sought an
order directing the respondents to comply with the
Dabone
Order.
I may point out that it was in any event common cause that in
essence, Circular 10 constituted an incorporation of the material

provisions of the
Dabone
Order.
[70] In the circumstances, it would
not, in my view, be proper for me to express any view in regard to
the
Dabone
order, nor would it be proper for me to make an
order directing the respondents to comply with it, and that is a
matter which must
be left for another day, if it ever arises.
As I have indicated, the respondents allege that the
Dabone
order is wrong, has been superseded by subsequent regulations which
were enacted and offends against the principle of the separation
of
powers. Although I have some difficulty understanding some of their
arguments in this regard, for the reasons I have already
given it is
not necessary, nor would it be appropriate, for me to consider these
submissions and to pronounce on them.
[71] In the result, and
for the reasons set out above, I make the following Order:
(i) Immigration
Directive 21 of 2015, which was issued by the Director-General of the
Department of Home Affairs on 3 February 2016,
is declared to be
inconsistent with the Constitution of the Republic of South Africa
1996 and invalid, and is set aside.
(ii) Second
respondent is directed to permit the second applicant to submit an
application for a visitor’s visa in terms of
s 11(b)(iv)
of the
Immigration Act, no. 13 of 2002
, within 15 days from date of this
Order.
(iii) Second respondent is
directed to consider third applicant’s appeal against the
refusal of his application for a critical
skills visa, as rejected by
him on 4 January 2016, in the light of this judgment and to make
a decision in the appeal within
15 days of the date of this Order.
(iv) Second
respondent is directed to consider fourth applicant’s appeal
against the refusal of his application for a critical
skills visa, as
rejected by him on 6 October 2015, in the light of this judgment and
to make a decision in the appeal within 15
days of the date of this
Order.
(v) Second
respondent shall be liable for applicants’ costs of suit,
including the costs of two counsel where so employed.
SHER
AJ
Appearances
:
For
the applicants:
Mr A Katz SC (assisted by
Mr A Brink)
Instructed
by:
Kassel Sklaar Cohen Attorneys, Cape
Town
For
the respondents:
Mr W Mokhari SC (assisted
by Messrs A Nacerodien and M Nyathi)
Instructed
by:
The State Attorney, Cape Town
[1]
Nishimura Ekiu v The United States
[1892] USSC 26
;
142
US 651
(1892) at 659 cited with approval in
Minister
of Home Affairs and Ors v Watchenuka and Ano
2004
(4) SA 326
(SCA) at para [29];
R
(European Roma Rights Centre) v Immigration Officer at Prague
Airport (United Nations High Commissioner for Refugees Intervening)
[2004] UK HL 55
paras [11] and [19];
Vilvarajah v UK
[1991]
EHRR 248
at para [102].
[2]
Per Lord Hope in
R
(on the application of ST (Eritrea)) (FC) (Appellant) v Secretary of
State for the Home Department
[2012]
UK SC 12
at para
[32]
;
European Roma
Rights
n 1 at para [19].
[3]
Article 33.
[4]
Note 1, c
ited with approval in
R
(on the Application of ST (Eritrea)
n1
at para 29.
[5]
The Rights of Refugees Under International Law
(2005) at 278.
[6]
In its 2015 Global Report for Africa.
[7]
Id.
[8]
2015 (1) SA 151
(SCA) at para [44].
[9]
App No 30696/09 (ECtHR, Grand Chamber 21 January
2011).
[10]
Para 216. See also
Medvedyev
v France
App No 3394/03 (ECtHR, Grand
Chamber 29 March 2010) at para 81.
[11]
Act 130 of 11998.
[12]
I
n terms of s 10(2)(i) read together with
s 19(2)
of the
Immigration Act, no. 13 of 2002
, which provides
that a general work visa may be issued by the Director-General to a
foreigner.
[13]
Immigration Regulations 2014.
[14]
In terms of
s 26
of the
Refugees Act.
>
[15]
In terms of
s 19
of the
Immigration Act.
>
[16]
In terms of
s 8
of the
Immigration Act.
>
[17]
[2000] ZACC 8
;
2000 (3) SA 936
(CC).
[18]
Per Wallis JA in
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012
(4) SA 593
(SCA) at para [18], 603F-G.
[19]
Id.
[20]
Per Schreiner JA in
Jaga
v Dönges NO and Ano; Bhana v Dönges NO and Ano
1950
(4) SA 653
(A) at 662G-663H, referred to with approval in
Du
Toit v Minister for Safety and Security and Ano
2009 (6) SA 128
(CC) at para [37].
[21]
Per Sachs J in
SA
Police Service v Public Servants Association
2007 (3) SA 521
(CC) at para [20], 529C-D.
[22]
Which was previously referred to as the primary
or golden rule of statutory interpretation and which, as was pointed
out by Wallis
JA in
Natal Joint
Municipal Pension Fund
n19 (at para
[22]), led to a “
studied
literalism”
as it “
denied
resort to matters beyond the ordinary grammatical meaning of the
words used
”.
[23]
Id
at para [23].
[24]
National Credit Regulator v Opperman and Ors
2013 (2) SA 1
(CC) at para [99].
[25]
Id
at para
[100].
[26]
Per Moseneke J (as he then was) in
City
of Cape Town and Ano v Robertson and Ano
[2004] ZACC 21
;
2005
(2) SA 323
(CC) at para
[52]
, 348A. This is of course not to deny
that a court can employ techniques of reading-down, or reading-in,
or severance in order
to render a provision constitutionally
compliant.
[27]
Id
at footnote
[62], 348F referring to
Stafford v
Special Investigating Unit
1999 (2) SA
130
(E) at 140C-F.
[28]
Investigating Directorate; Serious Economic
Offences and Ors v Hyundai Motor Distributors (Pty) Ltd and Ors In
re: Hyundai Motor
Distributors (Pty) Ltd and Ors v Smit NO and Ors
[2000] ZACC 12
;
2001 (1) SA 545
(CC) at para
[21]
,
558E.
[29]
In terms of s 39(2) of the Constitution.
[30]
Makate v Vodacom (Pty) Ltd
[2016]
ZACC 13
at para
[88]
;
Fraser v ABSA
Bank Ltd
[2006] ZACC 24
;
2007 (3) SA 484
(CC) at para
[43]
.
[31]
SATAWU and Ors v Moloto and Ano NNO
2012
(6) SA 249
(CC) at para [44].
[32]
Department of Land Affairs and Ors v
Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007
(6) SA 199
(CC) at para
[53]
.
[33]
Rutenberg v Magistrate, Wynberg & Ano
1997 (4) SA 735
(C) at 754B-C;
Road
Accident Fund v Smith
1999 (1) SA 92
(SCA) at 102C-D;
Principal Immigration
Officer v Bhula
1931 AD 323
, at 337.
[34]
Expressed by the maxim “
interpretatio quae parit absurdam
non est admittenda
” see Du Plessis
The
Re-interpretation of Statutes
at p162;
Barnard v Regspersoon
van Aminie
2001 (3) SA 973
(SCA) at para [27].
[35]
Per Wallis JA in
Natal
Joint Municipal Pension Fund
n19 at
para [26].
[36]
Presented at a SAMP/LHR/HSRC Workshop on Regional
Integration, Poverty and South Africa’s Proposed Migration
Policy, Pretoria
on 23 April 2013.
[37]
Id
at 53-54
.
The oldest of this
generation of refugee control-orientated laws was Tanzania’s
Refugee Control Act of 1966, which was followed
in 1968 by
Botswana’s Refugee (Control and Recognition) Act, in 1970 by
Zambia’s Refugee (Control) Act and by the
Refugee Control
Order (1978) in Swaziland.
[38]
Id.
The laws of some of these countries
permitted all manner of arbitrary treatment of refugees such as
allowing for the confiscation
and slaughter of their animals and the
impounding of their vehicles, without compensation.
[39]
Id
p 54.
[40]
The first of these being Zimbabwe’s
Refugees Act of 1983 and Lesotho’s Refugees Act of the same
year, which was followed
in 1989 by the Refugee Act of Malawi and
the Refugee Status Act of Angola in 1990, and the Refugee Act of
Mozambique in 1991,
the Tanzanian
Refugees Act of 1998
and the
Namibia Refugees (Recognition and Control) Act of 1999.
[41]
And the 1967 Protocol.
[42]
Act 96 of 1991.
[43]
In terms of s 41 of Act 96 of 1991.
[44]
In terms of s 29.
[45]
Id
at p 53.
[46]
“
Failed Asylum Seekers in South Africa:
Policy and Practice”
in AHMR,
Vol 1 No 2 May-August 2015.
[47]
Id
p 4.
[48]
Id
pp 4 –
5.
[49]
These rights were largely achieved by judicial
intervention and were not initially granted in legislative
enactments.
[50]
Id
p 1.
[51]
Id
p 2.
[52]
Id.
[53]
Id.
[54]
Id
.
[55]
Id
at p 6.
[56]
The Aliens Control Act 96 of 1991.
[57]
As they were then known, now referred to as
“
visas”
in terms of the current Act.
[58]
Save in the case of applications for a visitor’s,
business or medical permit – ss 26(3)(a) and (4)(a) of
Act
96 of 1991.
[59]
S 10(2)(j) rtw s 20 of Act 13 of 2002.
[60]
S 10(2)(e) rtw s 15.
[61]
S1.
[62]
Para (a) of the preamble.
[63]
Id
para (d).
[64]
Id
para (h).
[65]
Id
para (l).
[66]
Id
para (o).
[67]
Id
para (n).
[68]
S 10(2)(b) rtw s 11.
[69]
S 10(2)(c) rtw s 13.
[70]
S 10(2)(e) rtw s 15.
[71]
S 10(2)(h) rtw s 18.
[72]
S 10(2)(i) rtw ss 19 and 21.
[73]
S 10(2)(j) rtw s 20.
[74]
S 10(2)(k) rtw s 22.
[75]
S 19(2).
[76]
S 19(4).
[77]
Id
.
[78]
S 15(1)(a) and (c)(ii).
[79]
S 19.
[80]
S 20(1)(a) and (b).
[81]
S 21(1).
[82]
S 22.
[83]
In terms of s 26.
[84]
In terms of s 27.
[85]
S 26(a).
[86]
S 27(a)(i).
[87]
S 27(b).
[88]
S 27(c)(i).
[89]
See ss 11(6) (visitors’), 18 (relatives’),
and 20(1)(a) (retirement) visas and ss 26(b) and 27(a)(iii) and
27(g) in
respect of permanent residence permits.
[90]
“
Asylum”
is defined as
the grant of refugee status in terms of the Act, s 1.
[91]
In terms of s 21(1).
[92]
S 22(1).
[93]
S 21(4).
[94]
S 24(3)(b).
[95]
S 24(3)(c).
[96]
Before the Standing Committee for Refugee Affairs
in terms of s 25, where the basis for the rejection was that
the application
was “
manifestly
unfounded, abusive or fraudulent
”.
[97]
In terms of s 26(1), if the basis for the
rejection is simply that the application was “
unfounded”
.
[98]
In terms of s 27(a).
[99]
S 27(b).
[100]
S 36(1) rtw s 5(1) and s 5(3).
[101]
S 5(1)(a) – (d).
[102]
S 5(1)(e).
[103]
The wording at present refers to the Aliens
Control Act of 1991, but after amendment by the
Refugees Amendment
Act 33 of 2008
which will be put into operation by Proclamation,
this Act has been substituted by a reference to the
Immigration Act.
>
[104]
Which will be amended to read “
the
Minister”
in terms of a further
amendment to the
Refugees Act, by
means of the Refugees Amendment
Act 12 of 2011, which will come into force and effect simultaneously
with the coming into operation
of the
Refugees Amendment Act 33 of
2008
.
[105]
Which was assented to on 21 November 2008.
[106]
S 27A(c)
of the
Refugees Amendment Act 33 of 2008
was to provide that this was to be the Director-General, but in
terms of the further proposed amendment in terms of the Refugees

Amendment Act 12 of 2011, this will be amended to refer to the
Minister.
[107]
In
Watchenuka v
Minister of Home Affairs
n1 at para
[3], Nugent JA accepted
obiter
that once an asylum seeker had obtained refugee status he or she was
was entitled, after 5 years as a refugee, to apply for permanent

residence. This implicitly is a reference to permanent residence in
terms of
s 27(d)
of the
Immigration Act.
>
[108]
S 27A(a).
[109]
S 27A(b).
[110]
S 27A(c).
[111]
S 27A(d).
[112]
Who are persons defined as such in terms of the
South African Citizenship Act, Act 88 of 1995.
[113]
There are important exceptions which are dealt
with later in regard to visitors and asylum transit visas.
[114]
In s 10A(1).
[115]
By virtue of
s 10A(2)(a)(i)-(ix) rtw s 10(2).
[116]
In terms of
s 21(a)
of the
Refugees Act.
>
[117]
S 22(1).
[118]
S
22(1).
[119]
In terms of
s 24(3)
of the
Refugees Act.
>
[120]
In terms of
s 25(3)
of the
Refugees Act.
>
[121]
In terms of
s 26(2).
[122]
In terms of
s 22(6).
[123]
In terms of
s 36(2).
[124]
Although the current wording of
s 36(2)(
and (3)
speaks of the Aliens Control Act, in terms of the
Refugees Amendment
Act 33 of 2008
, this will be amended to refer to the
Immigration
Act.
>
[125]
The only provision in the
Refugees Act which
authorises the removal of a refugee from the country, is
ss 28(1)
and (2), which allows for the removal of a refugee by order of the
Minister, on the grounds of national security or public order.
[126]
To wit,
s 24(5).
[127]
Unless he or she lodges an appeal.
[128]
In
s 36(2).
[129]
As contemplated i
n terms of
s 25.
[130]
In terms of
s 23(1).
[131]
In terms of
s 23(1)
rtw with
s 10A(2)(x).
[132]
Provided such a person does not qualify for any
of the visas contemplated in
ss 13
–
22
and for so long as a
“
good faith spousal relationship”
exists.
[133]
The applicants contend that such an application
is competent in terms of
s 11(1)(b)(iv)
which provides that a
visitor’s visa may be issued by the Director-General for a
period up to 3 (three) years to a foreigner
who has sufficient
available financial resources as may be prescribed and who is
engaged in the Republic in “
any
other prescribed activity”
.
[134]
S 31(2)(c).
[135]
[1995] ZACC 3
;
1995 (3) SA 391
(CC).
[136]
At para [144].
[137]
[2004] ZACC 12
;
2004 (4) SA 125
(CC).
[138]
At paras [26] – [27]. In
Kiliko
v Minister of Home Affairs and Ors
2006(4) SA 114 (C) at paras [27]-[28] the court confirmed that
foreigners are entitled to all the fundamental rights entrenched
in
the Bill of Rights, save for those specifically reserved for
citizens.
[139]
In terms of ss 21(3) and (4) of the Constitution.
[140]
At para [20], 137D.
[141]
2004 (4) SA 326
(SCA).
[142]
At para [25], 339B-C.
[143]
Ss 21 and 22.
[144]
In terms of Regulation 7(1)(a) of the then
Refugee Regulations.
[145]
[2000] ZACC 8
;
2000 (3) SA 936
(CC).
[146]
At para [30].
[147]
At para [31].
[148]
Art 23(1).
[149]
Art 18(1).
[150]
At paras [36] – [37].
[151]
[2001] ZACC 20
;
2001 (4) SA 485
(CC).
[152]
S 26(2)(a) of Act 96 of 1991.
[153]
Para (d) of the preamble.
[154]
In terms of s 19(4).
[155]
[2000] ZACC 1
;
2000 (2) SA 674
(CC) at para
[85]
;
South
African Broadcasting Corporation Society Ltd and Ors v Democratic
Alliance and Ors
2016 (2) SA 522
(SCA) at
para [59].
[156]
In terms of
s 22
of the
Refugees Act.