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[2018] ZAWCHC 156
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Kalisa v Chairperson of the Refugee Appeal Board and Others (17413/2017) [2018] ZAWCHC 156; 2020 (4) SA 256 (WCC) (19 November 2018)
Republic of South Africa
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 17413/2017
Before: The Hon. Mr Justice Binns-Ward
Hearing: 25 October 2018
Judgment:
19 November 2018
In
the matter between:
ALEXIS
KALISA
Applicant
and
THE
CHAIRPERSON OF THE REFUGEE APPEAL
BOARD
First
Respondent
REFUGEE
STATUS DETERMINATION OFFICER,
PORT
ELIZABETH
Second
Respondent
AKOS ESSEL
N.O.
Third
Respondent
THE
MINISTER OF HOME
AFFAIRS
Fourth
Respondent
THE
DIRECTOR-GENERAL OF THE
DEPARTMENT
OF HOME
AFFAIRS
Fifth
Respondent
JUDGMENT
BINNS-WARD
J:
Introduction
[1]
The applicant was born in Burundi. He left
there as a young child in 1994 when his parents fled with him to
neighbouring Rwanda,
reportedly because of the persecution to which
his father was subjected at the time by reason of his affiliation to
an ethnically
aligned political grouping known as the ‘
Union
pour le Progrès National’
.
It is well known that Burundi is a country with a long history of
violent ethnic hostility between the Hutu and Tutsi elements
of its
population.
[2]
According to the applicant his family lived
a hand to mouth existence in Rwanda, where they were denied any civic
rights and forced
to survive on the margins of society. This
did not, however, prevent him from being politically active in
Rwanda. According
to his evidence in this court he joined or
aligned himself with an opposition political movement there.
[1]
[3]
In 2005, at the age of 18, the applicant
left Rwanda and came to South Africa, where he applied for asylum.
The application
was refused by the refugee status determination
officer at the refugee reception centre at Port Elizabeth in 2007.
The applicant
lodged an appeal against that decision to the Refugee
Appeal Board, as provided in terms of s 26(1) of the Refugees
Act 130
of 1998 (‘the Act’). The Appeal Board gave
the applicant notice of a date in March 2008 upon which his appeal
would be considered, and advised that he might appear before it on
that day to make further representations in support of his
application for asylum. The applicant failed to appear at the
hearing, and it would appear the appeal was dismissed on account
of
his non-appearance without any consideration of the merits of the
matter.
[4]
It was around the time of his appeal to the
Refugee Appeal Board that the applicant relocated from Port Elizabeth
to Cape Town,
where he found fixed employment. On arrival in
Cape Town he reported to Cape Town refugee reception centre for the
purpose
of renewing the asylum seeker permit that had been issued to
him in terms of s 21 of the Act pending the final determination
of his application for asylum.
[5]
Soon after the applicant’s arrival in
Cape Town widespread incidents of xenophobic violence broke out
against foreign nationals
of African origin living locally. He
was one of many such people who took refuge in a facility set up by
the government at
the Youngsfield military base in Wynberg to shelter
targets of the xenophobia. Apparently at the insistence of
officials
of the Department of Home Affairs, the applicant submitted
a fresh application for asylum while he was at Youngsfield.
That
was during 2008.
[6]
After the violence had subsided, and he was
able to go back to work, the applicant continued to report
periodically at the relevant
Cape Town offices of Home Affairs for
the extension of his asylum-seeker’s permit. It was when
he presented there on
18 August 2017 that he was first informed
that his aforementioned appeal to the Refugee Appeal Board had been
unsuccessful
and given a limited period within which to leave the
country. (His 2008 application for asylum had in the meantime
also been
rejected as ‘unfounded’. He lodged an
appeal against that decision in 2013. Upon being given notice
that
the result of that appeal was available for collection the
applicant went to ground, and for a period of 22 months thereafter
neglected
to extend his asylum seeker’s permit.)
[7]
As to be expected, having regard to the
many years that had passed since his arrival in the country, the
applicant had by 2017 established
a life for himself here. Not
only had he been in fixed employment for several years, he had also
met and formed an intimate
relationship with a woman from the
Democratic Republic of the Congo, Ms Jolie Tuyishime, who is
also living here. The
relationship resulted in a child being
born to them in 2015.
[2]
The applicant has testified that he subsequently married his partner
by customary rites; apparently the rites of one or the
other of their
places of origin, no particularity has been provided. They have
since become parents to a second child.
Ms Tuyishime was
granted formal refugee status in South Africa on 23 March 2015.
The certificate issued to her
in this regard reflects her marital
status as single. The information endorsed on the certificate
suggests that she was interviewed
by a refugee reception officer on
10 February 2015.
[8]
The applicant did not leave the country, as
directed. His position became critical when his employers gave
him notice that
they were obliged to dismiss him because he had
become an illegal alien. He then approached the Refugee Law
Clinic at the
University of Cape Town. The Law Clinic assisted
him with the institution of the current proceedings whereby, in the
first
stage, in terms of an order granted by agreement between the
parties,
[3]
he obtained the interim regularisation of his residence status
pending the determination of his application, in a second stage
of
the proceedings, for the judicial review and setting aside of the
rejection of his application for asylum. This judgment
deals
with the review application.
The review
[9]
The review application resorts under s 6
of the Promotion of Administrative Justice Act 3 of 2000 (‘PAJA’).
It was common ground between the parties that there is no impediment,
in terms of s 7 of that Act, to the court entertaining
it.
No point was taken that the applicant might reasonably have been
expected to have become aware of the action and the
reasons for it
earlier than he actually did. If he is successful in obtaining
an order setting aside the impugned decision,
the applicant also
seeks consequential relief of the sort contemplated by
s 8(1)(c)(ii)(aa) of PAJA by way of an order granting
him
asylum. According to the tenor of the provision, that type of
consequential relief – a substitution order - is
available only
in ‘exceptional cases’. The usual remedy is that an
ancillary order is made referring the matter
for determination afresh
by the appropriate administrative functionary.
[4]
[10]
In addition to the grounds upon which his
applications to the refugee reception officers were made, the
applicant now also relies
in respect of his application for a
substitution order on an entitlement to asylum on the ground that, by
virtue of his marriage
to a person who has acknowledged refugee
status in terms of s 3(a) or (b) of the Act, he is a ‘dependant’
within
the meaning of s 3(c) of the Act. Section 3(c)
provides that ‘
Subject to Chapter
3, a person qualifies for refugee status for the purposes of this Act
if that person - is a dependant of a person
contemplated in paragraph
(a) or (b)
’. The meaning of
the word ‘
dependant
’
is defined in s 1 as ‘
in
relation to an asylum seeker or a refugee, includes
the
spouse
, any unmarried
dependant
(sic)
child or any destitute, aged or infirm
member of the family of such asylum seeker or refugee
’.
[5]
[11]
The application was founded on several
grounds of review. The applicant is entitled to succeed should
any one of them be established.
The question of the appropriate
consequential relief will then arise for determination. The
respondents argue that the applicant’s
application for refugee
status should be remitted for consideration afresh.
[12]
It is undisputed that only one member of
the Board sat for the purpose of considering the applicant’s
appeal. The applicant
contends that on that account the Board
had been non-quorate when it considered his appeal. The
contention is supported by
the judgment of this court (per Davis J)
in
Harerimana v Chairperson, Refugee
Appeal Board and Others
[2013] ZAWCHC
20
;
2014 (5) SA 550
(WCC), especially at paras. 15-20.
[6]
The respondents’ counsel, quite correctly in my view, did
not try to argue that
Harerimana
had been wrongly decided in the relevant respect. The judgment
is binding on me unless I can find that it was clearly wrong.
[13]
The respondent’s counsel did,
however, point out that the Board had been competently constituted
according to its own rules
made in terms of s 14(2) of the Act.
She submitted that in the absence of a direct challenge to the
legality of the
relevant rule, proceedings of the Board carried on in
accordance with it were clothed with apparent legality. She
called
the judgment in
MEC for Health,
Eastern Cape and Another v Kirland Investments (Pty) Ltd
[2014] ZACC 6
;
2014 (3) SA 481
(CC); 2014 (5)
BCLR 547 (CC); at para. 101 in aid of her argument in this regard.
The cited paragraph merely recites
the principle explained in
Oudekraal Estates (Pty) Ltd v City of
Cape Town and Others
[2004] ZASCA 48
;
2004 (6) SA 222
(SCA) ‘
that
our law has always recognised that even an unlawful administrative
act is capable of producing legally valid consequences for
so long as
the unlawful act is not set aside’. The
Oudekraal
principle expressly acknowledges, however, the right of an affected
individual to collaterally challenge an unlawful administrative
decision that is brought prejudicially to bear on him or her. I
do not consider it necessary in the current case to decide
whether
this is a matter in which a collateral challenge by the applicant
would be permissible. In my view the issue can
be resolved
adversely to the respondent’s counsel’s argument by the
application of established principles of statutory
interpretation.
It is well-established in that field that a statutory rule or
regulation cannot be construed or applied in
a manner that would put
it in conflict with the provisions of the governing statute under
which it was purportedly made.
[7]
If upon a proper reading of a statutory rule or regulation it is
identified as clearly contradicting its governing statute,
it is
necessarily exposed as patently void or ineffectual, and it would be
invidious for a court in the discharge of its obligation
to uphold
the law to have to purport to recognize its validity or
effectiveness.
[14]
It follows that the Appeal Board’s
decision to confirm the refusal of the applicant’s application
for asylum falls to
be reviewed and set aside.
[15]
It seems in any event from the record that
the appeal was dismissed solely because the appellant failed to
appear at the hearing.
If it had been necessary, that would
have afforded another ground, by itself, for the Board’s
decision to be set aside; for
it is clear from the considerations
listed in s 26(3) of the Act that the members of the Board are
required to apply their
minds to the merits of any appeal
irrespective of whether or not the appellant is present. They
are empowered in terms of
s 26(3)(e) to request an appellant to
appear before the Board ‘to provide any such other information
as it may deem
necessary’. The Board could only make such
a request if, having considered the information available to it in
regard
to the application (which might include information garnered
by it from third party sources such as the UNHCR representative,
referred
to in s 26(3)(a), or turned up by it in the course of
an investigation of the sort contemplated by s 26(3)(d)), it had
identified a need for other information that the appellant might be
able to provide. The reasons given in the Appeal Board’s
decision, namely ‘
As there were
factual and credibility issues which could not be resolved due to the
appellant’s non-appearance … the
Board cannot establish
whether the criteria for section 3(a) or (b) are met in the
circumstances
’ are opaque to say
the least, especially in the context of the notice of the appeal
hearing that was given to the applicant
not having identified the
nature of those issues.
[16]
There is no doubt in my mind that the
instances of non-compliance with the Act were material in the
circumstances. The intended
purposes of the statute were not
achieved. The purported refusal of the applicant’s appeal
is a decision that must
therefore be set aside.
Remedy
[17]
Section 8(1)(c)(ii)(aa) of PAJA,
which, as mentioned, provides for the exceptional remedy of the
substitution order sought
by the applicant is a codification of a
common law remedy in administrative law. The
considerations that were brought
to bear in determining whether it
was appropriate to grant it have been rehearsed in a number of
authoritative decisions.
The most salient of these were quite
recently reviewed at appeal court level in
Gauteng
Gambling Board v Silverstar Development Ltd and Others
[2005] ZASCA 19;
2005 (4) SA 67
(SCA), at para 28-29, and
extensively re-examined, in the context of their impact on the
doctrine of the separation of powers,
by the Constitutional Court in
Trencon Construction (Pty) Limited v
Industrial Development Corporation of South Africa Limited and
Another
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
2016 (10) BCLR 1199
(CC), at para 34-55.
[18]
PAJA requires the presence of two
characteristics before a substitution order is made: (i) the
existence of circumstances making
the matter an ‘exceptional
case’ (i.e. exceptional circumstances) and (ii) that it
would be just and equitable
in the context of such exceptional
circumstances for an order of that sort to follow.
[8]
The judgment in
Trencon Construction
acknowledged that
in applying s 8(1)(c)(ii)(aa) of PAJA, the courts had
essentially been applying the common law approach
to the making of
substitution orders.
[9]
[19]
In
Gauteng
Gambling Board
the appeal court
referred to the remarks of Hefer AP in
Commissioner,
Competition Commission v General Council of the Bar of South Africa
and Others
2002 (6) SA 606
(SCA), at
para. 14, that the notion that ‘
the
Court is slow to assume a discretion which has by statute been
entrusted to another tribunal or functionary” does not
tell the
whole story. For, in order to give full effect to the right which
everyone has to lawful, reasonable and procedurally
fair
administrative action, considerations of fairness also enter the
picture. There will accordingly be no remittal to the administrative
authority in cases where such a step will operate procedurally
unfairly to both parties. As Holmes JA observed in Livestock and
Meat
Industries Control Board v Garda
1961 (1) SA 342
(A) at 349G
“
. . . the Court has a
discretion, to be exercised judicially upon a consideration of the
facts of each case, and . . . although
the matter will be sent back
if there is no reason for not doing so, in essence it is a question
of fairness to both sides.”
’
and endorsed the statement in Baxter,
Administrative Law
at
684 that ‘
The mere fact that a court considers itself as
qualified to take the decision as the administrator does not of
itself justify usurping
that administrator’s powers . . .;
sometimes, however, fairness to the applicant may demand that the
Court should take such
a view.
’ The court concluded
‘
All that can be said is that considerations of fairness may
in a given case require the court to make the decision itself
provided
it is able to do so.
’
[20]
The conclusion stated in
Gauteng
Gambling Board
seemed to posit that
considerations of fairness (or justness and equity to use the
language employed in s 8(1)(c)(ii)(aa)
of PAJA) might justify a
substitutive order, provided the court was in as good a position as
the administrative functionary to
make the decision. An obvious
example falling within that category would be a case in which the
result was a foregone conclusion
(cf. the cases referred to in
Johannesburg City Council v
Administrator, Transvaal and Another
1969 (2) SA 72
(T) at 75
fin
-
76) and it would be unfair in the peculiar circumstances of the given
case to subject the applicant to the delay and inconvenience
entailed
in a remittal to obtain that result from the administrator.
Another, apparently independent,
[10]
category was ‘[w]
here the tribunal
or functionary has exhibited bias or incompetence to such a degree
that it would be unfair to require the applicant
to submit to the
same jurisdiction again
’; see
Johannesburg City Council
supra, at 76. The Supreme Court of Appeal’s (pre-PAJA)
judgment in
Erf One Six Seven Orchards
CC v Greater Johannesburg Metropolitan Council: Johannesburg
Administration and Another
[1998] ZASCA
91
;
1999 (1) SA 104
(SCA) refers to both the aforementioned
categories as examples of an apparently open-ended range of ‘
special
circumstances
’ that could give a
court sufficient reason not to remit the matter to the relevant
functionary.
[11]
[21]
I
think it was recognised, however, that that left the actual import of
the relevant test somewhat amorphous. In particular,
it was not
clear whether any one of the recognised criteria for a substitution
order would suffice, or whether any of them rated
as a prerequisite
in combination with one or more of the others. In particular,
it was not clear how considerations of fairness
in cases affected by
unconscionable delay or woeful incompetence could, without more,
empower courts to make substitutive orders
if they were not qualified
institutionally or by the evidence adduced in the given case to make
the type of administrative decision
in issue in the matter.
Hence the expressly stated project undertaken in the Constitutional
Court’s judgment in
Trencon
Construction
to endeavour ‘
to
clarify the test for exceptional circumstances where a substitution
order is sought
’.
[12]
Whether the endeavour was successful has been
questioned by some commentators; see R. Cachalia,
Clarifying the Exceptional Circumstances
Test in
Trencon
:
An Opportunity Missed
,
[2018] Constitutional Court Review 115 and L. Kohn,
The
Test for 'Exceptional Circumstances' Where an Order of Substitution
is Sought: An Analysis of
Trencon
Against the Backdrop of the Separation of Power
id., at
91.
[22]
Trencon Construction
unambiguously reiterated that ‘[r]
emittal
is still almost always the prudent and proper course
’.
[13]
The Constitutional Court seems to have considered that the perceived
need for clarity in the application of s 8(1)(c)(ii)(aa)
of PAJA
arose from uncertainty from a consideration of various post-PAJA
judgments as to whether the various factors relied on
in the common
law based jurisprudence to justify the exceptional remedy of a
substitutive order in review matters afforded discrete
bases for such
orders, or whether an accumulation of them was required.
[14]
Khampepe J, writing for a unanimous court, provided the
following guidance in this regard:
To my mind, given the doctrine of separation of powers,
in conducting this enquiry there are certain factors that should
inevitably
hold greater weight. The first is whether a court is
in as good a position as the administrator to make the decision.
The second is whether the decision of an administrator is a foregone
conclusion. These two factors must be considered cumulatively.
Thereafter, a court should still consider other relevant factors.
These may include delay, bias or the incompetence of an
administrator. The ultimate consideration is whether a
substitution order is just and equitable. This will involve
a
consideration of fairness to all implicated parties. It is
prudent to emphasise that the exceptional circumstances enquiry
requires an examination of each matter on a case-by-case basis that
accounts for all relevant facts and circumstances.
(Footnote
omitted.)
[15]
It is clear from the Constitutional Court’s approach on the
peculiar facts of the
Trencon Construction
case that, in the
process of reaching its decision to overrule the appeal court’s
decision to reverse the substitutive relief
granted at first
instance, it applied the two first mentioned factors in the order in
which they were stated in para. 47 of
the judgment, as primarily
qualifying factors for substitutive relief, and had regard to the
other factors in weighing up whether
it was just and equitable in the
circumstances for such relief to have been granted by the first
instance court.
[23]
Having
concluded that the first instance court had been (i) in as good
a position as the responsible functionary to make the
decision
[16]
and (ii) that the nature of the right decision was a foregone
conclusion, the Court had regard to the adverse impact of the
delay
in remitting the issue would have on administrative efficiency and
the public purse in concluding that it was just and equitable
for a
substitutive order to be have been made. The Court did not
expressly state its findings in support of the ‘exceptional
circumstances’ requirement, but it may be inferred that those
were founded in the cumulative effect of the factual considerations
traversed in its holistic assessment of the evidence.
[17]
Thus, although the first two factors have the greatest weight in any
assessment of the appropriateness of substitutive relief,
a court
does not reach the stage of having to considering their incidence
before it has concluded that the matter in question is
an
‘exceptional case’ within the meaning of s 8.
Although the Constitutional Court’s judgment in
Trencon
Construction
did not expressly hold as
much, I think it there is an implicit recognition in its reasoning
that a two-leg test is involved.
[24]
The Constitutional Court characterised the
power of determining the appropriate consequential remedy in terms of
s 8 of PAJA
as entailing the exercise of judicial discretion in
the true or strict sense.
[18]
That characterisation plainly applies in respect of the decision
whether to grant the remedial order; in other words the
decision
whether making a substitution order would be just and equitable in
the circumstances. On my reading of the judgment
it is not
clear, however, whether the same holds for the necessarily
associated, and usually antecedent, decision whether ‘exceptional
circumstances’ within the meaning of s 8(1)(c)(ii)(aa) of
PAJA have been established; in other words, to the decision
that an
‘exceptional case’ has been demonstrated. Indeed,
the Court’s own approach to the latter question
seems to me on
an analysis of its reasoning to have involved weighing ‘a
number of disparate and incommensurable features’
in the sort
of exercise identified in
Knox D'Arcy
Ltd and Others v Jamieson and Others
[1996] ZASCA 58
;
1996 (4) SA 348
(A), at 361H-I, as consistent with the exercise of a
wide or loose discretion.
[25]
The arguable lack of clarity in this
respect flows from the absence of a clear distinction in the
reasoning concerning what might
qualify as an exceptional case and
how a court, having identified a case as exceptional in the relevant
sense, would then determine
whether a substitution order would afford
a just and equitable remedy. In
Trencon
Construction
, the Constitutional
Court’s reasoning first identified why the case was one in
which a substitution order might be made and
then reasoned why,
exceptionally, such an order was indicated in the matter. The
order in which the exercises were undertaken
is understandable in the
appellate context of the adjudication of the case. One can
nevertheless apply the principles enunciated
in the judgment
approaching the case the other way round, which, I would venture, is
how a court of first instance would often
undertake the required
analysis. What is clear from the statutory provision itself,
however, is that decisions have to be
made on both legs of the test
before a court makes a substitution order.
[26]
Regardless of the nature of the discretion
involved in making these decisions, I fail to see how the court’s
discretion could
properly be exercised in favour of making a
substitutive decision if the court does not have an adequate basis on
the material
before it in the particular case, or by virtue of its
institutional competency, to be satisfied that the substitutive order
it
might consider making would comply with the constitutional
requirements applicable to the impugned decision that it would
replace,
viz. one that would be lawful, reasonable and procedurally
fair.
[19]
It is difficult to conceive how it could do that if it were
not, or had not been placed by the evidence, in as good a position
as
the administrator to make the decision.
[27]
That begs the question of what it should do
in a case where it is not in such a position, but it is evident that
the designated
decision maker is biased or incompetent and it would
for that reason be unreasonable and unfair to just remit the
decision.
I venture that it is in such cases that the
open-ended potential of the purpose-specific remedies that a court is
empowered
by s 8 of PAJA to craft comes into play; for, as
recognised in
Trencon Construction
,
it is the courts’ constitutional responsibility to provide
effective ‘constitutionally mandated’ relief against
instances of the infringement of persons’ constitutional
rights. The facts of a particular case may well demand
constructively
imaginative thinking from a court in devising an
effective remedy of a sort not specifically identified in s 8.
[20]
[21]
The facts in
Trencon Construction
did not require that, and nor do the facts of the current case.
[28]
There are two aspects to the current matter
concerning the applicant’s asylum claim that have not enjoyed
the attention of
the responsible authorities. Both of them call
for further investigation, the outcome of which will bear on the
result.
[29]
Firstly, the applicant’s position in
Rwanda was not considered because he appears to have relied in his
application for asylum
on the situation in Burundi. It is not
clear that he disclosed that he had lived in Rwanda for many years
before coming to
this country. In the current proceedings, the
applicant expatiated on his position in respect of the conditions
under which
he and his family lived in Rwanda, and his alleged
inability to return there, only in his replying papers. As the
respondents’
counsel pointed out, the matter may be of some
significance because of s 4(1)(d) of the Act, which provides:
A person does not qualify for refugee status for the
purposes of this Act if there is reason to believe that he or she-
(d) enjoys the protection of any other country in which
he or she has taken residence.
There is no record that the applicant disclosed his extended period
of residence in Rwanda to the responsible authorities when
applying
for asylum. They should be entitled to consider the effect of
his residence there for 10 years, and make a determination
whether it
afforded him adequate protection in the circumstances in which he had
been rendered a refugee from Burundi.
[30]
Secondly, and this is an issue that -
dependent on its determination - could even render the first
mentioned aspect irrelevant,
the relevant authorities have not had
the opportunity to consider whether the applicant is not in any event
entitled to refugee
status in terms of s 3(c) of the Act by
virtue of his reported marriage to a person who has been granted
asylum. As
noted, the details concerning the formalisation of
this union are sketchy on the papers.
[31]
Both of these aspects are matters that the
relevant authorities, and not the court, are better equipped to
investigate and determine.
They are also matters that, owing to
their location in the area of responsibility of the executive arm of
government, should be
dealt with there and not by the court. In
short they are matters that the court is not in as good a position as
the responsible
functionary to decide, and also on which the right
decision is not a foregone conclusion.
[32]
The applicant’s counsel placed
considerable stress, however, in a somewhat impassioned argument in
support of substitutive
relief, on the prejudicial consequences on
the applicant of the extraordinary delay in notifying him of the
outcome of his appeal.
He pointed out, justifiably, that a
decision at this point that could result in the separation of the
applicant from the children
that have been born to him in this
country would be inhumane. He referred to various judgments in
which the prejudicial effects
of delay have weighed heavily in
comparable matters in persuading the court to make substitution
orders conferring refugee status
on persons who had successfully
challenged the refusal of their asylum applications on review.
Indeed, as the applicant’s
counsel reminded me, I made such an
order myself in
Tshiyombo v Members of
the Refugee Appeal Board and Others
[2015] ZAWCHC 170
;
[2016] 2 All SA 278
; (WCC);
2016 (4) SA 469
(WCC).
[33]
It is unacceptable delays in the
administrative decision-making process and the poor reflection they
have on the competence of the
responsible administrator, coupled with
the resultant prejudice suffered by the applicant, that tend to call
into question the
fairness of holding a review applicant to the usual
remedy of remittal.
[22]
These are considerations that can make a case ‘exceptional’
in the relevant sense. As stressed earlier,
however, finding
that the case is ‘exceptional’ satisfies only one leg of
the test for substitutive relief.
[34]
In
Tshiyombo
,
a substitution order was just and equitable because not only was the
case ‘exceptional’, for the reasons explained
at
paras. 43-44, but also because it was considered that the court
was in as good a position as the administrator to make
the decision
and that the outcome of the asylum application in that case was a
foregone conclusion on the uncontroverted evidence
(see para. 46).
In the context of those findings it was considered that it would only
be fair in the given factual context
to make a substitution order.
I believe that the approach to making a substitution order in
Tshiyombo
was entirely consistent with that propounded in
Trencon
Construction
.
[35]
In
Radjabu v
Chairperson of the Standing Committee for Refugee Affairs and Others
[2014] ZAWCHC 134
;
[2015] 1 All SA 100
(WCC), however, in declining
to make such an order, despite a similar argument advanced on behalf
of the applicant in that case,
I pointed out that ‘[i]
ssues
such as the prejudice occasioned by delay (cf.
Ruyobeza
v Minister of Home Affairs
2003
(5) SA 51
(C),
2003 (8) BCLR 920
, at 65C-H (SALR)) cannot justify the
granting of asylum in circumstances in which it is not sufficiently
clear that an applicant
qualifies for refugee status in terms of s 3
of the Refugees Act. In
Tantoush
[
[23]
]
¸
for example, the substitution order sought was granted for a number
of reasons; demonstrated bias by the decision-maker
and prejudicial
uncertainty occasioned by delay were mentioned in the judgment.
But, ‘most importantly’, as the
learned judge
[Murphy J]
noted, he was able on the evidence
before him to determine that the applicant had ‘a well-founded
fear of persecution’
by reason of his political opinions, and
therefore also able to determine that the applicant qualified for
refugee status in terms
of s 3(a) of the Act
’.
[36]
The approach taken in
Radjabu
accorded with the articulation of relevant principle by Plasket J
in
Intertrade Two
,
discussed above,
[24]
which, in essence, has since been affirmed in the Constitutional
Court’s judgment in
Trencon
Construction
. The fact that the
delay in the final determination of the applicant’s application
for asylum might be charged with
the potential for unpalatable
outcomes should he not be granted refugee status is no basis, by
itself, for deciding that he qualifies
for such status. If the
court cannot be sufficiently satisfied on the evidence it has before
it that he does so qualify in
terms of the Act, it cannot make a
substitution order that it could be assured was lawful, and thus
conformable with the standard
to which administrative decisions are
bound by s 33(1) of the Constitution.
[37]
An additional complicating factor in the
current matter, as it was in
Radjabu
,
is that the reliability of the applicant’s evidence concerning
his personal history is demonstrably questionable in certain
respects. He will have the opportunity to clarify these matters
if his application is remitted. His counsel offered
to make him
available for questioning by the court at the hearing, but, as I
indicated at the time, I consider that interviewing
the applicant
would have been wholly inappropriate. It would entail the court
in becoming a supernumerary administrator.
The court’s
ability to make a substitution order in judicial review cases should
appear from the material in the papers;
it should not have to assume
the administrator’s powers of enquiry to ascertain on a basis
dehors
the
evidence in the review application whether it might properly make an
exceptional order.
[38]
In the circumstances I propose to give
directions that the applicant’s application for asylum be
reconsidered afresh by the
relevant authorities. Having regard
to the passage of time since the submission of his previous
applications and the intervening
events that need to be taken into
account in considering whether he is entitled to refugee status in
terms of the Act, it is desirable
that the application process should
recommence from the beginning. Apart from the applicant’s
altered circumstances,
it is also necessary for the responsible
authorities, if they are to give proper weight to the principle of
non-refoulement
incorporated in s 2 of the Act, to have regard to the effect of
current circumstances in both Burundi and Rwanda insofar as
they
would affect the applicant. (Even if he did not qualify as a
refugee when he submitted his previous applications, it
has to be
considered whether he might not since have become a
sur
place
refugee.
[25]
)
[39]
The applicant’s legal representatives
expressed concern about the further delay and attendant prejudice to
which a remittal
order would expose the applicant. Having
regard to the unfortunately large number of judgments in which the
courts have been
constrained to lament the inefficiencies in the
Department of Home Affairs’ administration of the
Refugees Act,
their
concern is justified. The respondents have undertaken on
affidavit to ensure that the processing of the applicant’s
fresh application for asylum will be processed without delay. A
timetable for this purpose has been offered. It was
framed in
accordance with the indications I gave at the hearing as to the time
within which I anticipated being ready to deliver
judgment. In
the event that has taken longer than I had hoped because of my
workload. The timetable suggested by the
Department will
therefore necessarily have to be adjusted for the purposes of the
directions to be incorporated in the remittal
order.
[40]
The applicant’s counsel also
expressed concerns about the ability of the applicant to access an
office of the Department of
Home Affairs in Cape Town where his
application might be accepted and processed. The issue of the
ready accessibility, or
lack thereof, of offices where asylum seekers
may submit their applications is a controversial matter in the public
domain.
It has also been the subject of litigation, in respect
of which counsel pointed out questions of non-compliance by the
Department
with various court orders have arisen.
[41]
As to the first of these concerns, the
Department has undertaken, in an affidavit made by Mr Zanecebo Menze
of the Legal Services
Unit of the Department of Home Affairs that was
submitted in response to a request by the court during the hearing,
that the applicant’s
application will be received and processed
at an address in Cape Town of which the applicant’s attorneys
will be advised
in writing. It was pointed out in this regard
that the applicant has, without any problem, been afforded local
access to
the necessary facilities since the interim order made on 17
November 2017 in the first stage of these proceedings for the
periodic
extension of his asylum seeker permit.
[42]
As to the concern about non-compliance, the
applicant, who is legally represented by the UCT Refugees Rights
Clinic, will no doubt
be appropriately assisted to obtain the
indicated remedies in the event of pertinent non-compliance with any
order granted in his
favour. It is sincerely to be hoped that
will not become necessary. Officialdom must be aware of the
growing trend
by the judiciary in judgments related to contempt of
court orders to hold delinquent public servants personally
responsible.
Sundry interlocutory matters
[43]
The respondents contended that the
applicant’s replying papers should be struck out in whole as an
abuse of process; alternatively,
they objected to portions thereof
and contended that they should be struck out for various reasons,
namely that they introduced
new matter, included irrelevant,
scandalous and vexatious averments and included inadmissible hearsay
evidence. While there
was validity in some of the objections,
the determination of all of them in the respondents’ favour
ex
hypothesi
would have made no difference
to the determination of the substantive case, and I therefore do not
intend to burden this judgment
with a detailed consideration and
determination of the application to strike out. In the given
circumstances the only practical
effect of such an exercise would be
its bearing on costs. The costs order to be made in the
principal case will, in my view,
adequately address the unfortunate
nuisance value features of the matter.
[44]
I do think, however, that it might usefully
be mentioned that it is not good drafting practice in motion matters
to include extensive
argument and reference to case law, including
the attachment of copies of judgments, in affidavits. The
essence of an affidavit
should be the recital of factual evidence.
Any explanation by the deponent of the legal context or
significance of his or
her evidence should be kept succinct, mindful
of the role of legal argument when the matter is heard. It is
also ordinarily
not appropriate to indiscriminately attach an entire
rule 53
administrative record to an affidavit. The body of an
affidavit should pertinently identify the materiality and relevance
of every bit of documentary evidence that the deponent sees fit to
attach as annexures; the reader should not be expected to undertake
an unguided and possibly unprofitable perusal of the documentary
attachments to an affidavit.
Costs
[45]
The applicant has obtained substantial
success in the review application. However, the greater part of
the hearing was given
over to argument on whether a substitution
order should be made, an issue on which the respondents have been
successful.
In the circumstances I consider that fairness would
be served were the applicant to be awarded two thirds of his costs of
suit,
such costs to exclude the costs associated with the inclusion
of annexures AK 30 and AK36 to his replying papers. No orders
as to costs will be made in respect of the respondents’
applications to strike out and to cross-examine the applicant, or
the
applicant’s application in terms of
rule 6(5)(e).
Orders
[46]
The following orders are made:
1.
The
purported decision of the Refugee Appeal Board, dated 3 April
2008, to uphold the decision of the second respondent rejecting
the
applicant’s application for asylum is reviewed and set aside.
2.
Pursuant
to the order made in paragraph 1 above, the matter of whether
the applicant is entitled to recognition as a refugee
in terms of the
Refugees Act 130 of 1998 (‘the Act’) is remitted to the
responsible authorities for determination afresh
in accordance with
the following procedural directions:
a)
Pending
the final determination by the responsible authorities in terms of
the Act of the applicant’s application for asylum
in accordance
with the directions given in this order, the third respondent, or her
successor from time to time as manager of the
Cape Town Temporary
Refugee Facility or any substitute for such facility, shall extend
the validity of the permit issued to the
applicant in terms of s 22
of the Act in accordance with paragraph 4 of the order of this Court
made in this matter by the
Honourable Mr Justice Le Grange on
17 November 2017.
b)
The
applicant is directed to appear in person before the Refugee Status
Determination Officer at the Cape Town Refugee Reception
Office on
Wednesday, 28 November 2018, at 10h00, or on such alternative
later date and time as might in writing be advised
by the
respondents’ attorney of record to the applicant’s
attorney of record by no later than 12h00 on Thursday, 22 November
2018, in order to submit a fresh application for asylum. Any
alternative later date that might be determined, as permitted
in
terms of this sub-paragraph, shall not be later than Friday,
14 December 2018.
c)
The
applicant is directed to procure that Ms Jolie Tuyishime
accompanies him when he attends on the Refugee Status Determination
Officer in compliance with sub-paragraph (b) above.
d)
The
Department of Home Affairs, represented for this purpose by
Mr Zanecebo Menze of the Legal Services Unit, is directed to
make the necessary arrangements to ensure that the applicant and
Ms Jolie Tuyishime will be able to obtain access to the Cape
Town Refugee Reception Office for the purpose of compliance with
sub-paragraph (b) above, and to ensure that the applicant’s
attorneys of record are advised in writing of such arrangements by
the respondents’ attorneys of record by no later than
12h00 on
Thursday, 22 November 2018.
e)
The
respondents’ attorneys of record are directed to ensure that a
copy of this order is provided to the aforementioned Mr
Menze by
15h00 on 19 November 2018 (today) by email and thereafter
forthwith to furnish the applicants’ attorneys of
record with
written confirmation that they have done so, and that they have
pertinently directed Mr Menze’s attention to
the obligations
imposed on him in terms of this order.
f)
The
aforementioned Refugee Status Determination Officer shall for the
purposes of compliance with this order discharge the functions
of a
refugee reception officer in terms of s 22 of the Act to the
extent necessary in respect of the receipt of the application
and
thereafter determine the application in terms of s 24 of the Act
as if he or she had received the application from a refugee
reception
officer in the ordinary course.
g)
The
aforementioned Refugee Status Determination Officer shall determine
the applicant’s application for asylum by no later
than
Thursday, 31 January 2019, or such later date as might for
sufficient reason be agreed to in writing by the applicant’s
attorneys of record, or, failing such agreement, determined by the
presiding Judge in chambers on application to be made in writing
through the Judge’s registrar on or before 31 January 2019.
h)
The
aforementioned Refugee Status Determination Officer is directed, as
soon as he or she has determined the application, to forthwith
notify
the applicant and the applicant’s attorneys of record in
writing that the decision is available for collection from
the Cape
Town Refugee Reception Office and to provide a copy of the decision
to the said attorneys by email.
i)
In
the event that the decision is not collected from Refugee Reception
Office, the applicant shall be deemed to have obtained knowledge
of
the determination of his application for asylum within 10 days of his
attorneys of record having been given notice thereof as
provided in
sub-paragraph (h) above.
j)
The
aforementioned Refugee Status Determination Officer is directed,
should he or she reject the applicant’s application for
asylum
as ‘manifestly unfounded, abusive or fraudulent’, to
comply punctiliously with the provisions of s 24(4)
of the Act,
and also to (i) provide the applicant’s attorneys of
record with a copy of the reasons provided for in terms
of s 24(4)(a)
of the Act and (ii) provide the Standing Committee with a copy of
this order and to draw to its pertinent attention
the provisions of
sub-paragraph (k) below.
k)
In
the event of the application being referred to the Standing
Committee, it shall inform the Refugee Status Determination Officer
and the applicant’s attorneys of record of its decision within
15 days of the application being referred to it; alternatively
within
such extended time as might for sufficient reason be agreed to by the
applicant’s attorneys in writing, or, failing
such agreement,
granted on written application to the presiding Judge in chambers
before the expiry of the said period of 15 days.
l)
In
the event of the applicant’s application for asylum being
rejected as ‘unfounded’, he shall lodge any appeal
he
might wish to bring in terms of s 26 of the Act within 30
calendar days of his receipt or deemed knowledge of the decision,
whichever is earlier, as provided in the regulations made under the
Act.
m)
It is directed that any appeal brought by the
applicant in terms of s 26 of the Act shall be considered and
determined by the
Refugee Appeal Board constituted in a manner
compliant with the construction of the relevant provisions of the Act
enunciated in
the judgment of this Court in case no.
10972/2013
(
Harerimana v Chairperson of the Refugee Appeal Board and Others
[2013] ZAWCHC 209
;
2014 (5) SA 550
(WCC)).
3.
The
respondent’s attorneys of record are directed to serve a copy
of this order on the Director-General of the Department
of Home
Affairs and a copy of the judgment and order on the chairperson for
the time being of the Refugee Appeal Board, and to
file an affidavit
at the office of the Registrar of this Court by no later than
30 November 2018, with a copy thereof to be
provided to the
applicant’s attorneys of record, confirming that compliance has
been made with this direction.
4.
Subject
to paragraph 5 below, the fourth respondent is directed to pay two
thirds of the applicant’s costs of suit, such costs
to exclude
the costs associated with or arising from the inclusion of annexures
AK 30 and AK36 in his replying papers.
5.
No
orders as to costs are made in respect of the respondents’
applications to strike out and to cross-examine the applicant
or the
applicant’s application in terms of rule 6(5)(e).
A.G. BINNS-WARD
Judge
of the High Court
APPEARANCES
Applicant’s counsel:
David Simonsz
Applicant’s attorneys:
UCT Refugee Rights Clinic
Cape Town
Respondents’ counsel:
Mushahida Adikhari
Respondents’ attorneys:
The State Attorney
Cape Town
[1]
In these proceedings the applicant
testified in reply to having ‘supported’ the Liberal
Party in Rwanda. In
an appeal submitted to the Refugee Appeal
Board in 2013, he made an affidavit that he had been active member
of that party.
[2]
The child’s unabridged birth
certificate reflects that he was registered under his mother’s
surname, with no details
provided as to the identity of his father.
[3]
The Department of Home Affairs had
initially opposed the granting of interim relief, but revised their
position after the Constitutional
Court’s judgment in
Saidi
and Others v Minister of Home Affairs and Others
[2018] ZACC 9
;
2018 (7) BCLR 856
(CC);
2018 (4) SA 333
(CC), which
was delivered on 24 April 2018.
[4]
As contemplated by s 8(1)(c)(i) of PAJA.
[5]
The definition of ‘
dependant
’
in s 1 of the Act has been amended, in terms of legislation
that has not yet been brought into operation, to attach
a meaning
that would exclude the applicant from its ambit because he had not
been included in Ms Tuyishime’s application.
(See s 1(b)
of the Refugees Amendment Act 11 of 2017.) The amending
legislation, which also introduces a definition
of the word
‘
marriage
’
might, had it been brought into operation, also have borne on
whether his marriage by the customary rites of a foreign
country
qualified as a marriage for the purposes of the Act. (See
s 1
of the
Refugees Amendment Act 33 of 2008
and the substituted
definition of the word ‘
marriage
’
inserted in terms thereof in
s 1(d)
of Act 11 of 2017.)
Whether the newly introduced definition of ‘marriage’
would exclude the applicant from
qualifying as his partner’s
‘
spouse
’
within the meaning of that (undefined) word in the Act is a moot
point; cf. e.g.
Daniels
v Campbell NO and Others
2004 (5) SA 331 (CC).
[6]
See also
Bolanga
v Refugee Status Determination Officer and Others
[2015] ZAKZDHC 13 (24 February 2015) at paras. 15-16, and
Mwamba v
Chairperson of the Refugee Appeal Board and Others
[2017] ZAWCHC 16
(28 February 2017) at para. 61.
[7]
Cf. the observation in Joubert
et
al
(eds), LAWSA vol. 25(1) (First reissue)
at para. 293, ‘…
superordinate
and subordinate legislation
in pari
materia
cannot really “be in
conflict” because if they are inconsistent, the latter must as
a rule yield to the former
’. See
also
Harerimana
supra,
at para. 20.
[8]
In
Trencon Construction
supra, at para. 35, the position was expressed as follows: ‘
In
effect, even where there are exceptional circumstances, a court must
be satisfied that it would be just and equitable to grant
an order
of substitution
’.
[9]
Trencon Construction
at
para. 41.
[10]
See
Trencon
Construction
supra, at paras. 38-39.
[11]
Erf One Six Seven Orchards
at 109C-G (SALR).
[12]
Trencon Construction
supra, at para. 32.
[13]
At para. 42.
[14]
Trencon Construction
supra,
at para. 46, with reference to the judgments mentioned in
footnote 43.
[15]
At para. 47.
[16]
I agree with the opinion expressed by Kohn in her paper
(cited in para. [21]
above) that the
identification of this factor as a point of departure is consistent
with the view expressed by Plasket J
in
Intertrade
Two (Pty) Ltd v MEC for Roads and Public Works, Eastern Cape, and
Another
[2007]
ZAECHC 149
,
2007 (6) SA 442
(Ck),
[2008] 1 All SA 142
(Ck) at para.
43 that ‘‘[t]
he
availability of proper and adequate information and the
institutional competence of the court to take the decision for the
administrative decision-maker are necessary prerequisites that must
be present, apart from “exceptional circumstances”,
before a court can legitimately assume an administrative
decision-making function
’.
Plasket J regarded satisfaction of the identified
pre-requisites as ‘
a
minimum requirement of rational decision-making, a fundamental
requirement of the rule of law
’.
[17]
Trencon Construction
supra, at paras. 57-81.
[18]
Id. at paras. 90-92.
[19]
A decision that would comply with the standards
prescribed in s 33(1) of the Constitution.
[20]
Kohn op. cit. has postulated that
‘…
in
seeking to accommodate the separation-of-powers concerns within the
test, Khampepe J has arguably made it harder for litigants
to meet
the case for substitution in certain instances, namely where the
separation-of-powers requirements cannot be met but
the facts, which
evidence for example glaring incompetence or bias, nonetheless cry
out for substitution
’.
The postulate, even if correct, should not mislead anyone into
believing that The Constitutional Court’s
approach has made it
harder for PAJA litigants to obtain appropriate effective relief.
It must not be overlooked that s 8
provides for any order that
might be just and equitable in those circumstances and does not
consider that substitution is not
the only alternative to remittal.
If the Constitutional Court has made the requirements for
substitutive relief more stringent
by identifying the factors that
must carry greater weight in a similar way to the ‘prerequisites’
identified in
Intertrade
Two
supra (at note
16), loc. cit., that has only served as confirmation of Plasket J’s
compelling exposition of the requirements
of lawful decision-making.
[21]
An example of such a specially
crafted remedy is the order made by the Constitutional Court in
Allpay Consolidated
Investment Holdings (Pty) Ltd and Others v Chief Executive Officer
of the South African Social Security Agency
and Others (No 2)
[2014] ZACC 12
;
2014 (4) SA 179
(CC); and 2014 (6) BCLR 641
(CC).
[22]
In the current case the applicant’s own conduct
in failing to attend at the hearing of his appeal in 2007 probably
contributed
to some degree towards the unsatisfactory position in
which he finds himself. His initially advanced claim not to
have
received notice of it was exposed as fallacious when the
respondents produced a document bearing his signature in
acknowledgment
of receipt of such notice.
[23]
Tantoush v Refugee Appeal Board
and Others
[2007]
ZAGPHC 191; 2008 (1) SA 232 (T).
[24]
At note 1616.
[25]
Cf.
Radjabu
supra, at para. 37.