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[2020] ZAWCHC 22
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City of Cape Town v Balus and Others (21616/19) [2020] ZAWCHC 22 (17 March 2020)
CASE
NO:
21616/19
In
the matter between
THE
CITY OF CAPE
TOWN
Applicant
And
JP
BALUS
First
Respondent
PAPY
SUKAMI
Second Respondent
SYLVIA
NAHMANA
Third Respondent
THE PROTESTORS
OCCUPYING THE SECTIONS OF
LONGMARKET STREET,
BURG STREET, INCLUDING
THE SIDEWALKS, AND
GREENMARKET SQUARE,
AS SHOWN ON ANNEXURE
“A” HERETO
(“THE
AFFECTED
AREA”)
Fourth Respondent
THOSE PERSONS WHO
ASSOCIATED
THEMSELVES WITH THE
AIMS AND CONDUC
T OF THE FOURTH
RESPONDENT AS
WELL
AS THE FIRST TO THIRD RESPONDENTS
Fifth
Respondent
THE NATIONAL
COMMISSIONER OF THE SOUTH
AFRICAN
POLICE SERVICES, WESTERN CAPE
Sixth Respondent
THE PROVINCIAL
COMMISSIONE OF THE
SOUTH AFRICAN POLICE
SERVICES,
WESTERN
CAPE
Seventh Respondent
THE
MINISTER OF HOME AFFAIRS
Eighth
Respondent
JUDGMENT
DELIVERED: 17 MARCH 2020
THULARE
AJ
[1]
This is the return date for a
rule
nisi
issued by this
court on 17 February 2020. The reasons for the
rule
nisi
and the terms
thereof appear in that judgment of the court. The first to fifth
respondents (the respondents) have not availed themselves
of the
opportunity to give reasons why a final order should not be granted.
[2]
The interim order was served on 19 February 2020 as directed by the
court. The Department of Home Affairs (DHA) conducted
verification and other administrative processes in relation to the
Immigration Act and the Refugees Act from 19 February 2020 to
Sunday
23 February 2020. First and Second respondents provided the
lists used to control persons boarding buses provided
by the City of
Cape Town (the City). Only persons on the lists, to whom the
court order was applicable, went through the
process. A total
of seven hundred and eighty one (781) persons went through the
process. Seven hundred and eighty (780)
were foreign nationals
and one (1) child was South African. Three Hundred and Fifty
(350) had asylum seeker permits of which
two hundred and forty two
(242) were valid and hundred and eight (108) had expired. Hundred
and eighty eight (188) had been
granted asylum of which hundred and
sixty six (166) had valid documents and twenty two (22) had expired
documents. The total
of documented foreign nationals was five
hundred and thirty eight (538). Two hundred and thirty six
(236) were undocumented
of which fifty (50) were adults and hundred
and eighty six (186) were children. Six (6) were in possession
of valid study/work
visas some of which were pending further
investigation.
[3]
Department of Home Affairs (DHA) initiated necessary actions
including administrative fines where applicable. Asylum seekers
who indicated their intention to apply for asylum were issued with
visas valid for fourteen (14) days and had to report to the
Cape Town
Refugee Reception Office to lodge their applications. A total
of twenty three (23) indicated their intention to
apply for asylum.
Hundred and fifty six (156) asylum seekers with pending appeals
were referred to the Refugee Appeal Authority.
One undocumented
foreign national from the Democratic Republic of Congo (DRC) was
arrested for fraud after it was found that
he was in possession of a
fraudulent permit. Sixty two (62) asylum seekers appeared
before a magistrate for failure to renew
their permits whilst others
were under investigation. Three (3) of the sixty two (62) did
not pay their administrative fines
and were detained. Some of
the people who appeared on the lists did not report for verification.
The 1
st
,
2
nd
and 3
rd
respondents failed to appear for interviews with DHA officials.
[4]
The City provided transport to the respondents from the affected area
to Salt River Community Hall, the venue provided by the
City. The
City also made available officials to assist the respondents who were
in distress and who sought assistance. Some
respondents who attended
at the venue approached the City’s officials to report their
situations, a total of four hundred
and nineteen (419) individuals
making up two hundred and seventy one (271) family units. Only
eighty five (85) of the two
hundred and seventy one (271) families
indicated that they wished to remain in South Africa but did not wish
to return to their
previous residences as they felt unsafe. They
needed accommodation in a safe place and not in informal settlements.
One
person indicated that she wanted to return to Bellville
where she previously stayed. The other hundred and eighty five
(185)
family units indicated that they did not wish to be
accommodated anywhere in Cape Town and wanted to be resettled in
another country.
[5]
The sheriff assisted by the South African Police Services (SAPS) took
steps to enforce the order on 1 March 2020. There
was very
little physical resistance from the respondents. The temporary
structures, tents and other belongings of the respondents
were
removed from the pavements for safe keeping and the affected area was
cleansed. Approximately two hundred (200) persons
moved from
the affected area. Some attempted to gain entry into the St George’s
Cathedral which attempt failed. Some
managed to gain entry into
St Mary’s Cathedral. A charge of trespass was laid by the
church and those respondents were
removed by the SAPS. The
respondents moved to De Villiers Park where they spent the night.
As it was still a transgression
of the by-laws and the interim order
the sheriff still assisted by the SAPS took steps to enforce the
interim order the next day.
The sheriff warned the respondents
that their continued refusal to comply with the interim order and
by-laws could result
in their arrest. The respondents indicated
their willingness to be arrested and moved towards the SAPS station
in Buitekant
Street where they camped.
[6]
The current position is that the remaining respondents on the streets
are camping in Buitekant and Albertus streets in the City.
The
numbers are dwindling but remain fluid in that they increase during
the day but only about eighty five (85) people spend
the night there.
Of those who indicated that they need a safer place to live,
the City indicated to them that it will facilitate
arrangements with
various shelters available. The Portfolio Committee on Home
Affairs, a committee of Parliament of the Republic
of South Africa,
on 10 March 2020 held a briefing by DHA, the City, The Provincial
Joints Committee, the South African Human Rights
Commission (SAHRC)
and the United Nations High Commissioner for Refugees (UNHCR) on the
situation of the refugees in Cape Town
who are demanding to be
resettled to a third country. The papers show that in his oral
and written submissions to that Committee,
the Minister for Home
Affairs emphasized the importance of the City enforcing its by-laws
more vigorously.
[7]
On the evening of 11 March 2020, a day after the briefing of the
Portfolio Committee, a number of respondents approached the
law
enforcement officials of the City and expressed an interest in being
accommodated at shelters the City engaged. These respondents
made
approaches on a clandestine basis as they feared others who do not
want any of the respondents to break rank. Other
respondents
also approached City officials confidentially, indicating that they
had found private accommodation and require assistance
with rental
payments. The City and the SAHRC are attending to that request.
Consul- Generals and other relevant officials
of Angola, Somalia,
Democratic Republic of Congo, Burundi and Zimbabwe informed the
Executive Mayor of the City that nationals
of those countries who are
in South Africa and in distress can be assisted by their embassy if
such assistance is requested. In
the case of Angola attempts
have been made by the relevant officials of that country to speak to
respondents who are nationals
of that country, but those attempts
were met with intransigence.
[8] There is a side issue
between the City and the SAPS. Mr RG Bosman (Bosman), the
Executive Director of Safety and Security
of the City was the
deponent to the supplementary affidavit of the City for purposes of
today’s proceedings and the relief
sought. He said the
following in paragraphs 17 and 18:
“
17.
The Sheriff then attended at the Charge Office of the Central Police
Station to lay a charge, but was persuaded by members of
the SAPS
that it was not his responsibility to do so and it was the City’s
responsibility to approach the Court in terms
of paragraph 6 of the
interim order, to request an order to arrest and detain protestors
who do not comply with the order.
18. I
annex hereto as “RB1”, a copy of the Sheriff’s
return of service indicating this.”
[9] The relevant part of
RB1 reads as follows:
“
NATURE
OF PROCESS: COURT ORDER
On 3
rd
day of
March 2020 at about 14hrs the above matter was handled by N.N.
NTSIBANTU in the following manner:
I was
invited to attend a strategic meeting with stake holders in this
matter during which it was revealed that it was not my responsibility
to lay charges against the protesters as there was no direct
obstruction of the Sheriff by the protesters. It was further
revealed that it is the applicant’s responsibility to go back
to court based on the same Order and request the Court to grant
an
Order to arrest and detain those protestors who do not comply with
the order:
Refer
to paragraph 6 of the Court order under Case number 21616/19 dated 18
March 2020.
”
[10]
The deponent to the affidavit on behalf of the Minister of DHA, Mr
Yusuf Solomoms (Solomons) was advised that it was not necessary
for
DHA to enter into the fray regarding the difference of opinion on the
correct legal position between the City and the SAPS.
The
deponent to the affidavit on behalf of the SAPS, Mr Melville Cloete
(Cloete) disputed that members of the SAPS discouraged
the sheriff
from laying a charge as alleged by Bosman and indicated that Bosman
did not have visible involvement in the matter.
According to
Cloete, the sheriff was given the assurance that the SAPS would
assist him if necessary, as provided for in
paragraph 3 of the order.
In the event that any crimes were committed in the presence of the
SAPS, then the SAPS would take action.
The SAPS’s view
was that the sheriff was able to execute the order and the fact that
people may have been in breach
of the order triggered the civil
contempt remedy provided for in paragraph 6 of the order and the City
remained at liberty to implement
its by-laws. The SAPS did not
get involved in orders of civil contempt and that was a matter
between the City and the persons
who were not adhering to the order.
[11]
The City seeks a final order in terms of paragraph 1 of the
rule
nisi
, which related
to the 1
st
to 5
th
respondents only. In the absence of opposition, no costs order
is sought against those respondents. The City does not
seek
relief against the SAPS and DHA. The City prays that together with
the final order, the court should extend the relief set
out in
paragraph 6 of the interim order, should the enforcement of the order
remain problematic. Paragraph 6 of the interim
order reads as
follows:
“
6.
That in the event of non-compliance with any provision(s) of this
order, the applicant is granted leave to approach this Court
on the
same papers, duly supplemented, for an order of civil contempt and/or
any further and appropriate relief that may be necessary.”
[12]
South Africa has a law specifically enacted with the purpose to give
effect within the Republic to the relevant international
legal
instruments, principles and standards relating to refugees, to
provide for the reception of asylum seekers, to regulate application
for and recognition of refugee status, to provide for the rights and
obligations flowing from such status and to provide for matters
connected therewith [Preamble to the Refugees Act, 1998 (Act No 130
of 1998) (the Act)]. In terms of the Act, asylum means
refugee
status recognized in terms of the Act, asylum seeker means a person
who is seeking recognition as a refugee in the Republic
and a refugee
means a person who has been granted asylum in terms of the Act.
[13]
It was in recognition of the country’s responsibilities to
refugee and asylum seekers in particular and migrants in general
that
this court, as part of the relief granted to the City, included
amongst others terms set out in paragraphs 2 and 4 of the
rule
nisi.
This court,
through those terms, was exercising its judicial oversight over the
State and ensured that the State respected, protected,
promoted and
fulfilled the rights of the respondents as enshrined in the Bill of
Rights [Chapter2 section 7 of the Constitution
of the Republic of
South Africa (Act No. 108 of 1996) (the Constitution)]. The
papers show that the City and DHA complied
with that part of the
order.
[14]
According to the report of the Acting Director-General in DHA the
majority of the respondents possess lawful permits to be
in the
country either as asylum seekers, refugees or those who have
indicated their intention to apply for asylum. They are
protected in terms of international and domestic refugee laws and
protocols. According to the Senior State Attorney, Western
Cape, S Karjiker the alleged failure to make a decision regarding
permanent resident permits, judicial reviews and refusal of asylum
seeker status, disputed deportations, declaration of undesirability,
prohibited persons, refusal of entry to prohibited persons,
disputes
of identification, birth certificates, marriage certificates,
adoptions, constitutional challenges to immigration and
refugee legal
framework and civil claims arising out of alleged assaults at Refugee
offices are matters related to Refugees and
migrants in general which
DHA has to deal with and the State Attorney get involved in
litigation.
[15]
For this workload, there is only 1 Chief Director, 2 Legal Directors
in Litigation and Legislative Drafting and only five legal
advisors
at national level in Pretoria. These five legal advisors
service 13 State Attorneys Offices in the whole country
and have to
attend to court matters, attend consultations with counsel, provide
instructions to State Attorneys, court orders that
need compliance
and receive on average fifty (50) to sixty (60) new court
applications per week plus summonses served directly
at their
offices. Because of the backlogs, attorneys and foreign
nationals are capitalizing on the inordinate delays and
some
practitioners are cashing in on cost orders against DHA [Report of
the State Attorney to the Western Cape Provincial Efficiency
Enhancement Committee of the Judiciary of the Republic of South
Africa, 4 March 2020]. It should be borne in mind that matters
of refugees also relate to Government Policy, State Security and DHA
policies and the Judiciary is uncomfortable with increasing
judicial
applications for substitution, where the courts are requested to
substitute the decision of the Executive. In my
view, Adv.
Bongo and the Portfolio Committee on Home Affairs owe Legal Services
Unit of DHA in Pretoria a visit to fully appraise
themselves in order
to support the Minister of DHA and the Director-General.
[16]
The suggestion that South Africa is xenophobic is simplistic
sensationalism that attempts to draw attention away from the true
issues behind the sit-in protest. It would have been
understandable if the issues that the respondents raised were related
to the challenges experienced by foreign nationals seeking asylum in
the Republic. The demands of the respondents are far
removed
from the experiences of an average refugee, asylum seeker or foreign
national in the Republic. In my view, an inductive
study of the
papers illuminated the true issues, and the following is the picture
that emerged.
[17]
The respondents’ demand is to move from their ordinary places
of residence in the Republic to another area where they
will be
provided with accommodation by the government of the Republic, or be
taken out of the Republic at State expense and be
moved to Canada or
another country in Europe. The respondents, in essence, seek to
be moved to another area or country in
order to improve their
standard of living. They regard their ordinary places of
residence within the Republic from which
they moved in order to start
a sit-in protest as insufficient. These demands which the
respondents advance to justify their
continued occupation of the
streets of the City unlawfully, have got nothing to do with the
country’s responsibilities to
give effect to the international
legal instruments, principles and standards or our own national
prescripts to regulate matters
connected with refugees, asylum
seekers and migrants.
[18]
The respondents are not forced by circumstances not to return to
their ordinary places of residence in the Republic. They
chose
not to return and elected to move. They are drawn to housing or
another country because of the prospect of and a desire to
escape the
social and economic situation in their ordinary places of residence
in the Republic. They have experienced the
life of an ordinary
South African in their ordinary places of residence and it does not
tickle their fancy. An informal settlement
in South Africa, its
struggles and challenges is not for them. They demand a better
life than that experienced by the majority
of South Africans,
Africans in particular and Blacks in general with sprinklings of
White.
[19]
There are no attacks on foreign nationals anywhere in the Republic of
South Africa currently. There are no potentially
deadly
consequences and it is not dangerous for the respondents to return
back to their ordinary places of residence within the
Republic. The
respondents are simply refusing to go back to their ordinary places
of residence, are refusing access to the
country’s social
services and to be integrated into the South African Society. Their
plight is self-created. It
is not humanitarian and is purely
economic. It is a demand for one or more steps away from the
poverty line and up the social
ladder. In the White styrofoam
cup of coffee which represents the economy and the Black majority
life in South Africa, they
do not want to be the general content
inside or at the bottom. They want to bubble to the top.
[20]
The quest for the economic freedom of the respondents is not only
general in the sense that they have a greater choice to determine
their destination which offered better conditions than their ordinary
places of residence within the Republic. It is also
specific.
The papers showed that Balus, the first respondent and his wife Aline
Bukuru, are founders of an organization called
Women and Children at
Concern (WCC). The conduct of the two and their supporters was
not only in furtherance of a dishonest
manipulation of uninformed
refugees, asylum seekers and migrants who believe that support for
WCC would translate into a resettlement
from South Africa to Europe
as a first prize and formal housing at State expense within the
Republic as a consolation prize.
[21]
The papers reveal a violent trail by the two and their hangers-on
towards other organisations and personalities involved with
refugee,
asylum seeker and migrant communities in the country. The
pursuit of a greedy iron-fisted dictatorship in matters
involving
refugees, asylum seekers and migrants, and the muscling out of other
organisations perceived to be a potential threat
of competition as
the legitimate authority as well as the occupation of the funding
space stands out. Officials of the State
including the City,
the police, Non-Governmental Organisations, the Human Rights
Commission and the United Nations High Commission
for Refugees have
not been spared the verbal and in some instances physical attacks or
threats in pursuit of these economic goals.
It is Balus and Bukuru’s
way, or no way. It is the WCC and no other in the refugee,
asylum seeker and migrant environment.
[22]
In my view, the promotion of Women and Children at Concern (WCC) and
their personal development as a leading authority on refugee,
asylum
seeking and migration at all costs as well as the influence of
financial resources drove Balus, Sukami and Bukuru’s
agenda.
They did not hesitate to and do not see anything wrong with
disturbing the academic development of school-going children
who were
removed from schools to be used as pawns placed as the vanguard in
their economic war. Whenever confronted, they
retreated to the
rear guard, and ensured that women and children are at the forefront
in order to gain sympathy. The women
and children are used as
shields. This is also what happened during the law enforcement
operation of the State on 30 October
2019 in Cape Town. Images
of women and children being removed by the law enforcement agencies
of a State painfully twisted
the bones of humanity, looked inhumane
and created a negative image about the country. It is not
surprising that there was
a national outcry and the Central Methodist
Church’s conscience was pricked to action and opened its doors
to the respondents
on sight of the images.
[23]
The humility of South Africa and its peoples was clearly confused
with stupidity. The diligent attention to detail in analysis
for
proper decision-making was interpreted as not being decisive or not
having a backbone. The consensus-seeking approach
which
sometimes included tolerance for those who brought what sounded like
a thesis of lunacy to the table was deemed as cowardice.
The
ability of the State to properly identify a refugee, asylum seeker
and migrant who, once lawfully within our borders
mutated into an
autocratic and authoritarian economic migrant who violently and
unlawfully pursued his or her own selfish way,
and to adequately
respond thereto was being tested by the respondents. The
respondents refused to subject themselves to the
country’s laws
and procedures. Their conduct had the potential to undermine
the legitimate concerns of refugees, asylum
seekers and migrants in
this country. Migration in Africa as a concept should not be
left to militant ill-disciplined street
fighters.
[24]
The economic migrants occupying the City streets in my view can be
broken down into three groups. The first are those
who are in
fact in distress and remain within the group simply for security
reasons as they fear violent criminals who appear in
borrowed robes
of leadership if they were to accept the help of the City. The
second are those who want to return and can
be integrated back into
their ordinary places of residence, but fear the violent criminals
who rule by force. The third are
those who advance an economic
cause including by violent and/or unlawful means, which include the
unlawful contravention of the
by-laws and the threats to other
respondents and role players.
[25]
Bosman was in a position to issue or cause an instruction to be
issued to the Municipal Police of the City to arrest the respondents
if he believed that arrest was a competent avenue to deal with the
respondents who contravened by-laws. By now the City cannot
claim ignorance that where there is a breach of its by-laws it has
both the criminal remedy as well as the civil remedy. The
City
can also not claim that it is not aware of the power of its own law
enforcement officers to arrest if it elects enforcement
of its
by-laws through the Criminal Procedure. In my view, the City appears
comfortable in being a Judiciary-led Metropolitan City
of Cape Town.
It styles itself as a cousin to the South African Judicial
Education Institute whose programme is led by the
Judiciary. The
City’s officials no longer took decisions without “seeking
clarity from the courts”. The impression
that I am left with is
that the City in this matter, consciously elected to be led from the
courtrooms of the Western Cape Division
of the High Courts of South
Africa, and not to govern from the City Council Chambers.
[26]
The SAPS held a different view to that of the City but that was not
enough to bar the City to execute its functions in terms
of the
by-laws as the City understood them and elected. The opinion of
the SAPS was irrelevant for the determination and
execution of the
powers of the City. What is clear to me is that the SAPS
understood the City to have elected to enforce
the by-laws through a
civil remedy and simply held the City to that election and committed
to support the City to see its elected
route through. The SAPS
was not eager to conflate the remedies at the whim of the City. The
Constitutional roles of
the SAPS and the City are not the same and it
is natural in our democratic system of checks and balances that
advancement of constitutional
roles may lead to tension, which is
healthy in a democracy. What our Constitution frowns upon is
that tension to be allowed
to flare into open conflict amongst
functionaries of the State [section 40(1) of the Constitution]. It
is not the responsibility
of the SAPS to enforce the by-laws. They
play a secondary and supportive role. It is the primary
responsibility of
the City to enforce its by-laws when they are
contravened and if it so elects. It is not the function of the courts
to offer legal
advice, to argue what the law is or to substitute the
Executive.
[27] I am unable to see
any harm to the SAPS if clause 6 of the
rule nisi
is
confirmed.
For these reasons I make
the following order:
1. Clause 1 and 6 of the
rule nisi
is made final.
2. No cost order is made.
3. The applicant is to
make the terms of this order available in Lingala, Swahili and French
and to serve the order in the same
terms as set out in clause 5 of
the Rule Nisi.
__________________
D.M.
THULARE
Acting
Judge of the High Court