L.M v Chairperson of the Standing Committee for Refugee Affairs and Others (13142/17) [2020] ZAWCHC 64; [2020] 3 All SA 780 (WCC) (7 July 2020)

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[2020] ZAWCHC 64
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L.M v Chairperson of the Standing Committee for Refugee Affairs and Others (13142/17) [2020] ZAWCHC 64; [2020] 3 All SA 780 (WCC) (7 July 2020)

SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE DIVISION, CAPE TOWN
REPORTABLE
CASE
NO: 13142/17
In
the matter between:
L
M
Applicant
and
THE
CHAIRPERSON OF THE STANDING
COMMITTEE
FOR REFUGEE
AFFAIRS
First
Respondent
THE
REFUGEE DETERMINATION
OFFICER
Second
Respondent
THE
CAPE TOWN REFUGEE
OFFICE
Third
Respondent
THE
DIRECTOR-GENERAL HOME
AFFAIRS
Fourth
Respondent
THE
MINISTER OF HOME
AFFAIRS
Fifth
Respondent
Coram:
P.A.L.Gamble, J
Date
of Hearing: 12 March 2020
Date
of Judgment: 7 July 2020
This
judgment was handed down electronically by email to the parties’
legal representatives.
The
deemed date of hand down is 10h00 on Tuesday 7 July 2020.
JUDGMENT
DELIVERED ON TUESDAY 7 JULY 2020
GAMBLE,
J:
INTRODUCTION
1.
The applicant is a national of the
Democratic Republic of the Congo (“
the
DRC
”) who seeks to review two
decisions which culminated in a refusal to grant her asylum in South
Africa and a subsequent order
for her deportation. To that end the
applicant relies on –
1.1
. A decision by the second respondent on 29
September 2014 to refuse the applicant’s application for
asylum;
1.2
. A decision by the first respondent on 8
June 2016 to uphold the second respondent’s refusal as
aforesaid;
1.3
. The issuing to the applicant of an order
to depart the Republic allegedly taken by the fourth and fifth
respondents on 5 October
2016.
The
applicant further seeks an order remitting her application for asylum
back to the first and/or second respondents for reconsideration.
2.
At
the core of the refusal of the application for asylum, lodged in
terms of s22 of the Refugees Act (“
the
Act
”),
are alleged material inconsistencies in a number of factual averments
made by the applicant over the years regarding her
personal history,
her arrival in the Republic as recorded in various working documents
of the Department of Home Affairs (“
the
Department
”),
as also her affidavits filed in this application. As a consequence of
the inconsistencies in the Departmental
[1]
documents, the asylum application was rejected by the second
respondent (“
the
RSDO
”)
on 29 September 2014 as “
manifestly
unfounded
”
[2]
in terms of s24(3)(b) of the Act.
3.
On 8 June 2016 the first respondent (“
the
SCRA
”) considered the decision of
the RSDO in terms of the internal review procedure contemplated under
s25(1) of the Act and
upheld the RSDO’s decision. Consequently,
on 5 October 2016 the SCRA informed the applicant of the confirmation
of the RSDO’s
decision and she was there and then issued an
order in terms of s8(4) of the Immigration Act to depart the Republic
by 26 October
2016. The applicant did not comply with this order but
rather lodged this application for review on 25 July 2017.
4.
The review is brought under the Promotion
of Administrative Justice Act, 3 of 2000 (“
PAJA
”)
and the notice of motion comprises an application for Part A relief
for an interim interdict pending the final determination
of the
review under Part B thereof. When the matter first came before the
court on 22 August 2017, the parties agreed to an interim
interdict
in terms of the Part A relief and fixed a timetable for the filing of
the Rule 53 record and further affidavits.
5.
After receipt of the Rule 53 record the
applicant filed a supplementary affidavit on 28 February 2018. This
was some 5 months after
the agreed date for the filing thereof and 2
weeks after the agreed date for the hearing of the review. After
various further postponements
the matter was heard by this Court on
12 March 2020. At that hearing the applicant was represented
Ms.A.Christians and the respondents
by Ms.M.Samuels.
6.
The application for review is out of time
and does not comply with the 180 day period prescribed by s7(1) of
PAJA: it was lodged
13 months after the SCRA’s decision had
been made and 9 months after the applicant had been informed thereof.
In neither
the founding nor supplementary affidavits does the
applicant address this issue. It was only in the replying affidavit
that the
relief was sought in response to the point having been taken
by the Department in the answering affidavit. In argument Ms. Samuels

indicated that the Department persisted in its opposition to the
application for an extension of time under s8 of PAJA.
7.
There are two main facts which the
Department places in issue in the answering affidavit. Firstly, it is
said that the applicant
has not established that the DRC is her
country of origin. This allegation is said to be based, inter alia,
on the fact that, in
giving conflicting evidence about certain
geographical localities in the DRC, the applicant does not “
know
her own
country
”.
That contention fell away when the applicant annexed a copy of her
DRC passport to her replying affidavit.
8.
Secondly, it is said that the applicant has
given contradicting versions as to her date of birth and her date of
entry into South
Africa. The consequence hereof is that the
applicant’s age when she entered the Republic is in issue. On
one version she
would have been a minor and entitled to
differentiated treatment for children under the relevant
international instruments. On
the other version she would have been a
major when she arrived. I turn then to consider, firstly, the
allegations made by the applicant
in her affidavits placed before the
Court.
MATERIAL
ALLEGATIONS IN THE FOUNDING AFFIDAVIT
9.
In the founding affidavit the applicant
says that she was born in the province of Katanga in the DRC on […]
1994, but does
not identify the city or town of her birth. The
applicant goes on to say that she does not have a birth certificate
or passport
but was able to obtain from the DRC Embassy in Pretoria a
document dated 9 January 2017 which is entitled “
Birth
Certificate
” and which she says
confirms her personal particulars: it reflects that the applicant was
born on […] 1994 at Lubumbashi
in the DRC. She is said to be
the daughter of A M and B Y – it is not clear which of those
persons was her father and which
her mother.
10.
The applicant goes on to say that she has
some recollection of living “
at
the time
” with her mother in a
city called Kisangani in the midst of “
a
brutal
civil
war (The First Congo War) until 1997 when Mobutu was overthrown and
Kabila took power. I would have been three years old at
the time. I
can barely remember my father and do not know what happened to him
whether (sic) he succumbed to the war or simply
fled of his own
right.”
11.
Then the applicant describes her early
childhood thus.
“
[22]
For almost a decade of sporadic and horrendous violence I was brought
up by my mother. I do remember that when the militant
rebels began
burning houses, when I was just 12 years old, I left the DRC. I was a
child and I know my mother was concerned for
my safety.
[23] I do recall my
mother handing me over to my auntie, also a DRC national, who was my
mother’s sister who took me with
her own child to South Africa
when her husband was killed.”
12.
Then the applicant describes her arrival in
South Africa thus.
“
[24]
In 2007 we travelled to South Africa by road and after a very long
journey we arrived. We settled in Cape Town and I went with
my auntie
to the Refugee Reception Office in Cape Town. I was very scared and
could not understand any English at the time.
[25] They took my
fingerprints and my auntie spoke to them. I am not sure what I
received as my auntie took a document from them
and kept it. I was a
minor and I only understand now that my auntie and the Official (sic)
treated me as an adult in 2007.”
13.
The implication that the applicant and her
aunt attended the Refugee Reception Office in 2007 shortly after
their arrival in Cape
Town is based on a document which the applicant
attaches to the founding affidavit - a copy of an asylum seeker
temporary permit
which was subsequently issued to her by the
Department on 21 May 2014 and was due to expire on 16 September 2014.
That document
(annexure LMM 2 to the founding affidavit) reflects the
applicant’s date of birth as 21 September 1987.
14.
The Department’s file reference
number in respect of the applicant in annexure LMM 2 is given as
“
CTRCOD000091012”.
That
is the same reference number that the Department used in subsequent
documents relating to the applicant’s application
for asylum.
However, the applicant also refers the Court to a recordal in LMM 2
of an “
Alternative File
Number: ctr/008248/07
”
and points out that the suffix “
07
”
suggests that her date of arrival in South Africa was indeed 2007.
15.
As will appear more fully later, the
Department takes issue with the applicant’s alleged age and
date of arrival on the basis
that the contemporaneous notes of the
RSDO (Ms. Zakhali Mosouenyane) relating to her interview with the
applicant on 29 September
2014 for purposes of evaluating her
application in terms of s 22 of the Act, reflect that the applicant
told her that her date
of birth was […] 1987 and that she
arrived in the Republic at “
Beit
Bridge
rail
”
on 29 September 2003, having left her country of origin on 12
September 2003.
16.
In any event, the applicant goes on to say
that she and her aunt resided in the Cape Town suburb of Retreat
where she attended school
eventually reaching matric at the Sibelius
High School in 2012. During that year the school required proof of
her refugee status
and the applicant says she repeatedly attended
upon the Department’s offices in Cape Town to that end where
she was issued
with the aforementioned file reference number
“
CTRCOD000091012”.
Eventually, with the assistance of the
school, says the applicant, she was issued with an asylum seeker
temporary permit in 2012.
Although she no longer has a copy of that
permit, the applicant refers to annexure LMM2 and suggests the 2012
permit was in similar
form.
17.
The applicant states the following in that
regard.
“
[29]
The date of issue of my ‘new’ asylum seeker’s
permit was either the 10
th
of August 2012 or the 8
th
of October 2012, I’m not sure which as the dates on asylum
permit (sic) are stated in both day/month/year and month/day/year

format on a single document. Irrespective, this was just before or
after my 18
th
birthday.”
18.
If regard be had to other dates on annexure
LMM2, it must be concluded that the date to which the applicant
refers– “
10/8/2012”
–
printed at the left foot of the document is 8 October 2012. This
suggests that the applicant visited the Department’s
offices on
that day.
19.
The applicant goes on to say that, both at
the time of her initial interview in 2007 (as per reference number
ctr/008248/07) and
at the second interview in 2012 (per reference
number CTRCOD000091012), she was incorrectly treated by the
Department as an adult.
As a matter of fact, if the applicant’s
date of birth was as she now alleges (21 September 1994), she would
have been aged
12/13 in 2007, 18 in October 2012 and 20 at the time
of the interview with the RSDO on 29 September 2014. If the date of
birth
recorded on LMM 2 ([…] 1987) is correct she would have
been 19/20 in 2007 and 25 in October 2012 and 27 at the time of the

interview with the RSDO.
20.
In offering an explanation for this anomaly
the applicant says the following.
“
[30]…At
the initial application [i.e. 2007] my age was incorrectly confirmed
by the RSDO
[3]
,
as I was treated as an adult. As my auntie acted as intermediary
during the initial application, the RSDO had an obligation to
at
least attempt to establish my age and my relationship to my aunty.
This should have been done at the outset and I should have
been
afforded appropriate assistance and care of the authorities in terms
of the Children’s Act.
[31] It is most
unfortunate that the RSDO considered me to be an adult when I was in
fact 12 years old at the time of the interview,
which was conducted
as if I was an adult and through my auntie as I did not speak the
local languages. I have no idea as to why
my date of birth was
incorrectly reported as 21 September 1987 as I did not speak to the
Official during the first interview with
the RSDO in 2007.
[32] As a child
applicant and unaccompanied by a parent, I had no appreciation or
understanding of the proceedings during 2007.
At the time of
application (sic) in 2012 when I first spoke to the RSDO, I would
have had to be 25 (as opposed to 18) if my date
of birth was 21
September 1987, yet this was never canvassed.”
21.
Turning to the 29 September 2014 interview
with the RSDO (which resulted in the finding of a “
manifestly
unfounded
” application on the
same day) and which the applicant now seeks to review, the founding
affidavit contains the following
allegations.
“
[33]
[In 2012] I was granted asylum and continued to renew my permit
until, during 2014, I returned to the Refugee Reception Office
and
was interviewed. I told the Official that I do not know what my
auntie had discussed with the official during the initial application

as I was a child and explained that I fled, or rather was sent, to
the Republic due to the ongoing violence.
[34]
I was advised that my application for Refugee Status had been
rejected by the RSDO and that the Standing Committee would review
the
decision…
[35]
Quite literally years past until, during 2016, I received
communication indicating that the Standing Committee (SCRA) upheld

the RSDO’s decision to reject my application as Manifestly
Unfounded…”
22.
In the founding affidavit the following is
said in relation to the applicant’s present inability to return
to the DRC.
“
[40]
As a DRC national I am not able to return and live in my home
country. The political unrest and slaughter of civilians continue,

especially in the Eastern part of the country where I hail from.
[41]
I was forced to flee as a child and sought refuge in the Republic. It
is well documented that my country of nationality is
unsafe and to
remain or return is simply perilous and accordingly most patently a
physical risk to my own person. I submit that
I would be at an even
greater risk as I am no longer familiar with my country, its people,
its language or even my own family -
or at least whatever little
members remain.”
23.
In relation to the Department’s
alleged breach of her rights to administrative justice entrenched
under s33 of the Constitution,
1996 the applicant says the following
in the founding affidavit.
“
[45]
I was a child at the time of the initial application. The Respondents
are obliged to act accordingly in a lawful manner and
ensure
administrative justice ensues in terms of their domestic and
international obligations.
[46]
The entire interview process before the RSDO was flawed and unfair in
that I was excluded from the process as the discussions
were mainly
between the RSDO
[4]
and my aunty. Moreover, I was apparently treated as an adult!
[47]
Furthermore, what would have been expected is the RSDO had to record
my age and that this would be taken into account, especially
during
the SCRA review. I am sure they are even aware of the fact that I was
a minor at time (sic) of application (sic) and I certainly
doubt that
the adjudicators properly considered the facts of my case or apply
(sic) themselves or even review (sic) my file. I
am perturbed how the
SCRA can act unlawfully when they are the oversight body.
[48]
My right to remain in South African (sic) without the right to proper
and final determination cannot be disputed. Such right
exists and has
been breached unlawfully…
[58]
To denounce my application for asylum as manifestly unfounded,
apparently as my ‘claims are made on grounds other than
those
on which such an application can be made’ is simply baseless
and illegitimate when making a decision duly for asylum.
[59]
I have at no stage made any misrepresentations of fact, innocent or
otherwise, and have not had the opportunity to properly
set out the
facts surrounding my arrival in the Republic, save for the written
appeal submitted to SCRA, which they do not have
to consider.”
[5]
24.
The application for refugee status by the
applicant was based on s3 of the Act which reads as follows.
“
3.
Refugee status.
Subject to Chapter 3,
a person qualifies for refugee status for the purposes of this Act if
that person –
(a)
owing to a well-founded fear of
being persecuted by reason of his or her race, tribe, religion,
nationality, political opinion or
membership of a particular social
group, is outside the country of his or her nationality and is unable
or unwilling to avail himself
or herself of the protection of that
country, or, not having a nationality and being outside the country
of his or her former habitual
residence is unable or, owing to such
fear, unwilling to return to it;
(b)
owing to external aggression,
occupation, foreign domination or events seriously disturbing or
disrupting public order in either
part or the whole of his or her
country of origin or nationality, is compelled to leave his or her
place of habitual residence
in order to seek refuge elsewhere; or
(c)
is a dependent of a person
contemplated in paragraph (a) or (b).
”
25.
In
laying claim to refugee status in terms of s3
[6]
of the Act the applicant makes the follow allegation in the founding
affidavit.
“
[62]
It is a fact that the DRC experiences political problems in which
uprisings are a common occurrence and the rule of law is
not strictly
guarded. I was forced to flee as a child due to violence against
innocent civilians, including my immediate family.”
THE
SUPPLEMENTARY RULE 53 RECORD
26.
The Department filed its main Rule 53
record on 13 December 2017 and a supplementary record on 9 February
2018. The latter contained
a number of documents to which the
applicant had not previously had access and two which were already
annexed to the founding affidavit,
all of which she addressed in her
supplementary founding affidavit of 23 February 2018. These include –
26.1
Form
BI – 1590
.
This is the initial
pro
forma
document
entitled “
Eligibility
Determination Form for Asylum Seekers”
which was filled in by an unidentified Departmental official
[7]
on 23 October 2007 and which will be referred to as “
Annexure
LMM 6”;
26.2
Form BI – 1692
,
an “
Asylum Seeker Temporary
Permit
” issued to the applicant
on 23 October 2007 by one Erik Lotriet, an RRO, and which will be
referred to as “
Annexure LMM 7”;
26.3
An RSDO interview record dated 14 August 2008 recorded by one
“
Luyanda”
and
which shall be referred to as “
Annexure
LMM 8”.
26.4
An entry dated 5 April 2011 by Mr. Vuyani Shwane in an unidentified
“
Investigation Diary
”
under file no. “
CTR/008248/
07”
and which shall be referred to as “
Annexure
LMM 9”.
26.5
The two asylum seeker temporary permits already annexed to the
founding affidavit, which the Department identified in the record
and
which are also referred to as annexures LMM 10 and 11.
26.6
The typed notes of the interview conducted by the RSDO (identified as
Ms. Zakhali Mosoeunyane) with the applicant on 29 September
2014
together with the RSDO’s decision of the same day, all of which
is referred to as “
Annexure LMM
12”.
26.7
Included in Annexure LMM 12 is a letter from the SCRA dated 5 October
2016 upholding the RSDO’s decision. The document
reflects that
the decision itself was taken on 8 June 2016.
FACTUAL
ALLEGATIONS MADE IN THE APPLICANT’S SUPPLEMENTARY AFFIDAVIT
27.
The information contained in the
supplementary Rule 53 record is dealt with by the applicant in a
supplementary (founding) affidavit
with reference to the following
documents.
28.
Firstly, the
Form
BI – 1590
is a document completed
in manuscript and even to the untrained eye it is apparent that it
was filled in by more than one person.
Certain of the numerals on the
document are written in what may be called the “Continental
style” – the numeral
one is written as an inverted tick
mark and the numeral 7 has a line drawn across the vertical part of
the numeral. I shall use
that phrase to refer to the handwriting
which fits that description. It is possible that the second style of
hand writing is that
of the RRO and I shall use that acronym to refer
to the other handwriting on the form.
29.
The applicant’s surname is recorded
as “
M
”
while her other (given) names are “
M
L
”. These names all appear to
have been written by the person using the Continental style of
writing.
30.
The applicant’s date of birth is
recorded as “
19
87
– […]
”.
The numerals “87” which I have highlighted are
overwritten in bold as if a marker pen was used and it is impossible

to detect what the original numerals endorsed on the document are.
The point is that the year of the applicant’s birth has
been
the subject of either confirmation or alteration.
31.
As already noted above, the applicant’s
place of birth is recorded as “
Kisangani
”
in “
D.R.C
”,
while in the block on the form headed “
Ethnic
Group
” is the word “
Lokele
”.
All of this is in the Continental style.
32.
Further, there is evidence of a
French-speaker having filled in part of the document, also in the
Continental style. Under the box
for the recordal of the applicant’s
religion appear the words “
Christian
Catholique.
” The document records
the “
Language
”
of the applicant as “
Swahili
”
and “
Lingala
”
while the “
Other Languages
”
spoken by the applicant are said to be “
French
”.
The nationalities of the applicant’s parents are recorded in
the appropriate boxes as “
Congolaises
”.
33.
There is a large block on the form entitled
“
Residency During the Last Ten
Years
”. There are 2 entries here
– “
D.R.C
”
is written in the Continental style while “
Beach
Front Mossel Bay
” is written in a
different handwriting – possibly that of the RRO.
34.
In section 2 of the form there is a heading
“
Country Background”
which
appears to be a form of interrogation of the knowledge of the
applicant of here alleged country of origin. For example, next
to the
entry “
Currency
”
appear the words “
Franc
Congolaise
” while opposite
“
Religion
”
are the words “
Christian
Catholoque”.
In respect of
“
Political Parties and Leaders”
the document records “
P.P.R.D.
(Joseph Kabila) M.L.C. Jean Pierre Bemba
”.
All of this is in the Continental style.
35.
Section
3 of the form is entitled “
Applicant’s
Story (Chronologically)”.
The
answers and the narrative are a combination of both styles of
handwriting. In the Continental style it is said that the applicant

left her country of origin on 18 September 2007 and entered the
Republic on 22 September 2007 at “
Mesina
”.
The mode of travel is given as “
Track
”
[8]
36.
In response to the question “
Were
you active in any organisation?”
The following is recorded in the Continental style,
·
“
Name – MLC and PPRD”
·
“
Leader – Bemba and Kabila”,
while the following is
noted in the presumed handwriting of the RRO –
·
“
Activities - mobilising the youth
and organising rallies.”
37.
In response to the question “
Why
are you applying for asylum?”
the
following narrative is furnished in the handwriting of the RRO.
“
There
is continuous wars (sic) in our home country. We are not even sure
which group to support any more. If I stayed I was going
to end up
killed so I fear for my life.”
38.
When asked “
Which
measures did you take to solve your problem?”
the applicant’s reply is recorded thus in the handwriting of
the RRO.
“
Nothing
other than leaving the country.”
39.
Lastly, in regard to this section, when
asked if she wished to return to her home country the applicant
ticked the “
No
”
box and the following reason is written in the handwriting of the
RRO.
“
There
is a strong (sic) war in our country.”
40.
Finally, the form provides for the identity
and address of any interpreter used in the interview process. In the
Continental style
handwriting the name is recorded as “
K
”
and the address is given as “
Muzenberg”
(sic).
41.
In the “
For
Office Use Only
” section of the
document the RRO makes the following preliminary comment in relation
to the application.
“
Applicant
claims she left her country due to continuous wars.”
42.
The applicant deals with the
Form
BI - 1590
as follows in the
supplementary affidavit.
“
6.
This document appears to be the form that was completed when I first
attended at a Refugee Office in 2007.
7.
The most striking thing about the form is that my year of birth looks
as though it was amended. I don’t know why this would
have been
done.
8.
I have a vague memory that I was asked some questions that day.
However, I could not speak any English and so my aunt would translate

the questions and my answers. My aunt, K, is in fact listed as the
interpreter on page 9 of the document.
9.
The questions I remember answering are:
9.1
That my date of birth is 21 September 1994;
9.2
I gave my parents’ names;
9.3
That I wanted to come to South Africa. In truth, I did not really
have a choice about where to go. But, before sending me with
my aunt,
my mother asked me if I would like to leave the DRC with her as it
was extremely unsafe in our country. I agreed to leave
with my aunt.
9.4
That I left my country because there are continuous wars there and
that I was afraid that I would be killed.
10. Having looked at
this document, I can safely say that I did not give the following
answers:
10.1
That I was born in 1987;
10.2
I did not say anything about the political parties or leaders. In
fact, I do not even know who or what MLC and PPRD are;
10.3
As a twelve-year old, I definitely did not say that I mobilized the
youth and organised rallies. We couldn’t even leave
our homes
to go to school or shopping - I don’t know how I would have
been able to do the things mentioned in the form.
11. While I cannot
remember actually signing the form, I do recall having photographs
and fingerprints taken. I may also have signed
the form. The
signature is different to my current one, but it could just have
changed over the years.”
43.
The next document is the
Form
BI – 1692
(annexure LMM 7) which
is a temporary asylum seeker’s permit that was issued to the
applicant under s22 of the Act on the
same day that she saw the ROO,
Erik Lotriet, for the completion of LMM 6. Indeed, the temporary
permit reflects all of the personal
details as recorded in LMM 6 –
the names and date of birth are the same as also the country of
origin. It records the applicant’s
residential address as “
[…]
Mossel Bay 6506
” and it bears the
applicant’s signature which is similar to that on LMM 6.
44.
The date of birth on LMM 6 suggests
strongly that the “
87
”
alteration was made contemporaneously with the completion of the Form
BI – 1590. Indeed, this date of birth is carried
through in all
subsequent documents originating from the Department.
45.
The applicant comments as follows in
respect of the
Form BI – 1692
(Annexure LMM 7).
“
12.
I assume this was the first asylum permit issued to me.
13.
In it, my name is spelled incorrectly, my date of birth is incorrect,
and my address is incorrect. I have never been to Mossel
Bay. At that
time, I lived in Muizenberg with my aunt.”
46.
Turning to
Annexure
LMM 8
, one finds a note scrawled in
barely legible manuscript on 14 August 2008 by a certain Luyanda as
part of the “
RSDO Interview
Record”
posing 3 questions and
the recorded answers.
“
1.
Why did you leave DRC?
The
rebels wanted to kill me and my brother.
[9]
2.
Why did they want to kill you?
They were fighting and
there were continuous wars in my country. My father and mother both
died because of the continuous fighting
in DRC. I thought that I will
end (sic) dead also.
3.
Are you willing to go back?
If
things are fine I will.
The
document bears the applicant’s signature at the foot thereof.
47.
This is how the applicant deals with
Annexure LMM 8 in the supplementary affidavit.
“
14.
I recall going back to the refugee office about a year after we first
arrived in South Africa - I assume this document contains
the notes
from that day.
15.
At that stage, I could speak a little bit of English and I tried my
best to answer the questions in English.
16.
However, seeing the document, there are a few things that are wrong.
17.
I did not say the rebels wanted to kill my brother and me - I did not
have a brother before I left the DRC. (Years later, I
heard from
somebody else who came to South Africa that my mother is still alive
and that she has a son.)
18.
What I said was that the rebels wanted to kill me and my mother.
After I told my advocate this, she looked closely at the document
and
pointed out that it does actually look as though the ‘m’
was changed to a ‘b’. I don’t know why
this would
have been done.
19.
The reason I said that was because my father was killed in our house
right in front of me. It is a miracle that they did not
also kill my
mother and me. Instead, they just took some of our possessions and
left. But the violence continued in our neighbourhood.
Our
neighbour’s house was even set on fire. The reason I believe
they were rebels is because they were in uniform and had
long
weapons.
20.
I never told the refugee officer any of this because I was not asked
detailed questions. In fact, I only told my advocate this
information
because I was asked specific questions about how my father died and
how I knew they were rebels and not robbers.
21.
I also did not say that my mother was dead. I know I said I did not
have any parents with me in South Africa. I may also have
said that I
don’t know if my mother is still alive, but I can’t
remember if I said it on this day or on a later occasion.
22.
Although I said I will go back to the DRC if things are fine, I did
not really know how I would get there or where I would go.
I just
meant that, at that time, I wouldn’t mind going back if there
is peace.”
48.
I turn next to
Annexure
LMM 9
which is an entry dated 5 April
2011 made by Mr. Vuyani Shwane in the Department’s
“
Investigation Diary
”
that reads as follows.
“
The
client came alone and she claims that her mother passed away in 2008.
She is now living with her mother’s friend. On the
file the
date of birth was changed so that she can make an application. She
told me that is not the date of birth, her date of
birth is the
[…]-1995. The child is now 16 yrs old which means she is still
a minor. She must be captured and her date of
birth be changed
accordingly. I have explained to her that she needs to go to the
social workers to apply for guardianship. The
condition on her permit
must be ‘unaccompanied minor’ ”.
49.
The applicant’s comments in regard to
this document are the following.
“
23.
I remember going to Home Affairs in 2011 and speaking to a man -
presumably Mr. Shwane.
24.
The reason I went was because I had left my aunt’s care and my
school needed papers from me. I went to Home Affairs on
a few
different occasions because they said they couldn’t help me
without any papers. I could not trace my aunt but, luckily,
my
primary school could give me a copy of my asylum permit which they
had on record.
25.
I assume the notes on this page were made on the day I went back with
a copy of that permit.
26.
I also did not say my mother died in 2008. At that stage, I had not
heard anything from or about my mother since I arrived.
This could be
the time when I said I do not know if my mother is still alive.
27.
I was not living with a friend of my mother. I was living with the
mother of my school friend.
28.
Mr. Shwane notes that my date of birth was changed so that I can make
an application on my own. I did not tell him that.
29.
I note that he also records my year of birth incorrectly.
30.
In any event, he specifically states that my date of birth must be
changed and that the condition of my permit be changed to

‘unaccompanied minor’. As will be seen from all the
subsequent documents, this was never done.
31.
I did not get an asylum permit after this interview with Mr. Shwane.
I was told that I must come back when I am 18 years old.
32.
On Mr. Shwane’s advice, I did try to get the assistance of a
Social Worker. I went to see a Social Worker in Wynberg on
two
occasions, I think. But they told me they cannot help me without any
documents and background information. The Social Worker
also told me
to follow Home Affairs’ advice and go back when I am 18 years
old. After that, I just gave up and tried to focus
on school.”
50.
In addition to the comments offered in the
founding affidavit, the applicant says the following in the
supplementary affidavit in
relation to
Annexures
LMM 10 and 11.
“
33.
It is clear from this document that the person issuing the document
did not follow Mr. Shwane’s instructions.
34.
I pointed out the mistakes in my name and address every time I went
to renew my permit.
35.
I remember at one stage, I went to the refugee office every day for a
week trying to get my information fixed. The reason I
did this was
that my school was worried that the Department of Education would
have a problem if their information did not match
the information on
my permit. (This could have been at the time I tried to get a permit
before I was 18 years old - it is difficult
for me to remember the
exact sequences all these years later.) At first I was told they will
fix it when I come back again. But
when I went to renew my permit, I
was told that it was a long and complicated process.”
51.
The notes recorded during
the
RSDO interview
on 29 September 2014
(Annexure LMM 12) are a critical part of the Department’s case
and will thus be dealt with in some detail.
I will leave the part of
LMM 12 which records the RSDO’s decision to refuse asylum for
consideration when I deal with the
Department’s answering
affidavit. It would appear as if the notes were recorded by Ms.
Mosoeunyane directly onto a computer
as there are no separate
manuscript notes or annotations on the interview record other than
the signatures of herself, the applicant
and an interpreter
identified only as “
Erick”
at the end thereof
.
52.
The applicant’s personal details are
recorded in identical terms to the Form BI – 1590 and include
her date and place
of birth as “
[…]/1987
’
and “
Kisangani
”.
Notwithstanding the aforesaid signature of “
Erick
”
at the end of the document the notes record that no interpreter was
requested for the interview.
53.
As the alleged “
Reason
for leaving Country of Origin
”
the RSDO recorded the following.
“
She
said she was born in Kisangani and grew up in the same area until she
was age 8. She said her parents passed on when she was
still young
and she was raised by her aunty. She said she left Kisangani when her
aunty moved and they went to Kinshasa. She said
she did not stay long
there because the intention was to get to RSA. She said nothing
happened to her back there to threaten her
life but they left because
they were coming to RSA. She said she has been in RSA for 9 years now
and her aunty 1.
”
54.
When
shown an image of the flag of the DRC on the computer screen, it
appears that the applicant identified the correct depiction.
The
document goes on to record the applicant’s “
Story
(Chronologically)
”
as follows:
[10]
“
left
the country and she is staying with her pastor who is taking care of
her.
SHE
CLAIMED THAT SHE WAS THE ONLY CHILD OF HER PARENTS. SHE SAID WHEN SHE
FIRST CAME TO THE OFFICE SHE CAME WITH HER AUNTY AND SHE
DOES NOT
KNOW ANY INFORMATION THAT WAS PROVIDED ON HER APPLICATION. sHE SAID
HER AUNTY ALREADY HAD A STATUS. SHE SAID WHEN HER
AUNTY LEFT SHE WAS
NO LONGER STAYING WITH HER AUNTY BECAUSE SHE WAS ABUSING HER. SHE
SAID SHE WAS TAKEN AWAY FROM HER BY SOCIAL
PAPERS. (WORKERS
[11]
)
When did you leave
your country of origin?: 12/09/2003
Port of Entry into
RSA: Beit Bridge rail
When did you enter the
RSA: 29/09/2003”
55.
Under the heading “
Asylum
Details
” the following
questions and answers appear.
“
Why
are you applying for Asylum?: She said she is applying because she
wanted to study.
Which measures did you
take to solve your problem?: To leave the country.
Do you wish to return
to your home country?: NO
If no, please give
reasons: She said she has no family back there.
What would happen to
you if you are returned to your country?: She doesn’t know.
Are you presently
employed in South Africa or conducting business/study: NO
Current
Source of Income: None.
”
56.
The applicant deals with the
RSDO
Interview notes
as follows.
“
36.
In this document, again, my date of birth is incorrectly reflected as
21/09/1987.
37.
I notice that my reasons for leaving are incomplete on the first page
of this document.
38.
Again, I did not say both my parents passed on. This may have been
the time I said I didn’t know if my mother was still
alive. I
can’t remember if it was before or after that that I heard my
mother was still alive and had a young son. But I
definitely didn’t
say that she had passed.
39.
Although there was no direct threat on my life - as in, nobody had
yet tried to kill me - my mother and I both were afraid that
it would
happen. As my aunt could not afford to take us both out of the DRC,
my mother allowed me to go and she stayed behind.
40.
There are also a few errors on the third page of this document:
40.1.
I did not come to South Africa in 2003 and I did not say that I did.
We arrived in 2007.
40.2.
I also did not say that I was taken by social workers. After I left
my aunt’s care, my school tried to get social workers
to assist
me. Before anyone came to help, my friend’s mother offered to
take me in.
40.3.
I also note that the reason for seeking asylum is that I wanted to
study. This is not true. The interviewer asked me why I
came back to
the refugee office after such a long time. I said I came back for new
papers because I needed papers to study. I don’t
know if she
meant why did I come back in 2011 or 2014. Either way, the answer
would be the same.
40.4.
On the fourth page, I think I did say that I have no family in the
DRC. The truth is, I have no idea if my mother is still
alive and,
even if she is, I have no idea where she is. I honestly do not know
what I would do or what would happen to me if I
returned to the DRC.”
57.
Lastly, the applicant makes the following
concluding remarks in her supplementary affidavit.
“
41.
I think it is now even more clear than before that the Respondents
made grave errors - in judgment and in law - when they considered
my
application for asylum.
42.
I cannot go back to the DRC as I have been in this country for over
10 years, since I was a child.
43.
I have heard in the news that the situation in the DRC is getting
even worse these days.
44.
I would literally be left on the street and be in even more danger
now.”
THE
ANSWERING AFFIDAVIT
58.
The answering affidavit unfortunately does
not assist the Court much. It is made by Ms. Mosoeunyane, the RSDO
who dealt with the
applicant’s application for asylum on 29
September 2014. As such she is the
de
facto
Second Respondent yet she
purports to depose to the affidavit both on her own behalf (although
she is not cited as a party in her
personal capacity) and on behalf
of the second respondent.
59.
Although the deponent claims to be duly
authorized to depose to the affidavit on behalf of the second to
fifth respondents (and,
importantly, not the first respondent), there
is no legal nor factual basis laid down for this allegation. It is
thus difficult,
in the absence of a resolution or confirmatory
affidavits, to understand how a relatively low level functionary in
the Department
can speak on behalf of the Director General, let alone
the Minister of Home Affairs, who is not a functionary in the
Department
but a member of the National Executive.
60.
It is notable, too, that in some instances
Ms. Mosoeunyane refers to herself in the affidavit,
qua
RSDO,
in the third person. For example,
in para 85 she says “
The Applicant
failed to inform the RSDO in
2014
of her true age”,
while in para
97 she says “
In 2014, the
Applicant was interviewed by the RSDO. The Applicant fails to mention
her alleged aunt to the RSDO as is evident from
the record.”
It is not clear why the evidence is presented in this manner in
circumstances where the deponent to the affidavit was personally
able
to admit or deny the allegations made by the applicant and to assert
primary facts of which she was personally aware, having
conducted an
interview with the applicant.
61.
As far as the first respondent (the SCRA)
is concerned, although she does not claim to depose to the answering
affidavit on its
behalf, the RSDO offers the following explanation in
the introductory part of her affidavit.
“
2.
The facts contained herein are both true and correct and falls (sic)
within my personal knowledge except where the contrary appears
from
the context. Where I depose to facts which are not within my personal
knowledge, I have ascertained these facts from documents
in my
possession or under my control or to which I have access and from
persons in the employ of the First Respondent and who do
have
personal knowledge of such facts.
”
62.
Nowhere in the affidavit does the deponent
identify any persons to whom she has spoken and/or from whom she has
established any
primary facts, nor does she said that, where she
deposes to hearsay evidence, she relies on the truth thereof, or that
she reasonably
believes such evidence to be true. Furthermore, the
affidavit is not supported by any confirmatory affidavits from any of
the Departmental
functionaries who dealt with the applicant’s
application for asylum over the years (e.g. Messer’s Lotriet,
Luyanda
or Shwane) and no explanation is offered for the failure (or
perhaps the inability) to procure such evidence. Lastly, “
the
persons in the employ of the First Respondent and who do have
personal knowledge of such facts,”
are
not identified either nor is there any attempt to procure
confirmatory affidavits from such persons
.
In the result, the answering affidavit
is riddled with inadmissible hearsay evidence which is in any event
of little evidential
value.
DECISION
OF THE SCRA TO CONFIRM THE RSDO’S DECISION
63.
The decision of the SCRA, which is the
basis of the first ground of review in this matter, is not dealt with
at all in the answering
affidavit. Other than making vague and
generalized statements such as -
“
140.
The Applicant failed to allege and proof (sic) that SCRA (sic) acted
lawfully…
183. The Applicant was
invited to make representations to the SCRA prior to their decision;
184.
The Applicant failed to make representations to the SCRA,
”
there
are no allegations to be found in the answering affidavit suggesting,
for instance,
(i)
when the SCRA met,
(ii)
who the members thereof were,
(iii)
what matter/documentation was before it for
consideration, and/or
(iv)
what the reasons were for upholding the
RSDO’s decision.
64.
In the result there is no opposition,
whether in form or substance, by the SCRA to the application to
review its decision taken
under s25 of the Act to confirm the finding
of the RSDO taken under s24(3)(b) thereof. The absence of such
opposition is material
in light of the specific requirements in
s25(2) as to how such a review by the SCRA of an RSDO’s
decision under s24(3)(b)
is to be conducted.
“
25.
Review by Standing Committee
(1)
The Standing Committee must review
any decision taken by a Refugee Status Determination Officer in terms
of section 24(3)(b).
(2)
Before reaching a decision, the
Standing Committee may -
(a)
invite
the UNHCR
[12]
representative to make oral or written representations;
(b)
request the attendance of any person
who is in a position to provide it with information relevant to the
matter being dealt with;
(c)
of its own accord make such further
enquiry and investigation into the matter being dealt with as it may
deem appropriate; and
(d)
request the applicant to appear
before it and to provide such other information as it may deem
necessary.”
65.
One
would have thus expected the SCRA to have taken the Court into its
confidence, to have produced any relevant working documents
or
papers, explained the procedure it followed and furnished the reasons
for its decision. In the absence thereof, and subject
only to
considerations regarding the failure to lodge the review timeously in
terms of s7, the Court is entitled to invoke the
presumption in
s5(3)
[13]
of PAJA and presume
that the decision of the SCRA was taken for no good reason.
[14]
The consequence of such a conclusion is that the applicant would be
entitled to the review of the SCRA’s decision.
ALLEGATIONS
IN THE FOUNDING AFFIDAVIT REGARDING THE DECISION OF THE RSDO TO
REFUSE ASYLUM
66.
In the founding affidavit the applicant
makes the following allegations specifically in relation to the
decision of the RSDO. I
reproduce the text precisely as it appears in
the affidavit replete with grammatical and syntactical errors
“
55.
The second part of this application seeks to review the decision by
the RSDO and its review by SCRA and request the above Honourable

Court in terms of section 8 of PAJA to set it aside as unlawful for
the reasons set out in section 6 of PAJA as the conduct was
in clear
violation of the Act and Regulations.
56.
It is thus requested that such conduct on the part of the RSDO and
the decision to refuse my application for asylum be set aside
and
remitted back to the RSDO afresh for adjudication to ensure that my
right to proper adjudication can expected.
57.
At the very least, the decision of the RSDO be reviewed afresh by the
SCRA in terms of section 25 of the Act.
58.
To denounce my application for asylum as manifestly unfounded,
apparently as my ‘claims [were] made on grounds other than

those on which such a (sic) application can be made’ is simply
baseless and illegitimate when making a decision duly for
asylum.
59.
I have at no stage made any misrepresentations of fact, innocent or
otherwise, and have not had the opportunity to properly
set out the
facts surrounding my arrival in the Republic, save for the written
appeal submitted to SCRA, which they do not have
to consider.
60.
To date between (sic) the application of the law by the RSDO and SCRA
have (sic) equally been deficient in terms of the Act.
Moreover, the
Act makes it abundantly clear that the manner in which the Act is
applied must be I have not received a lawful review
by SCRA
notwithstanding the fact that my interview by the RSDO was in breach
of my rights initially as a child and subsequently
to administrative
justice in the manner this interview was conducted.”
It
would be fair to say then that, despite shoddy drafting, the founding
affidavit lays down a direct challenge to the basis upon
which the
RSDO came to her conclusion.
THE
REPLY IN THE ANSWERING AFFIDAVIT TO THE FOUNDING AFFIDAVIT
67.
The reply to these allegations by the RSDO
in the answering affidavit are as follows.
“
AD
PARAGRAPH 55
161.
The contents of this paragraph are denied.
162. The Applicant is
seeking relief as set out in paragraphs 6-12 in Part B of the Notice
of Motion.
AD PARAGRAPH 56
163. The contents of
this paragraph are denied.
164. The Applicant is
seeking relief as set out in paragraphs 6-12 or Part B of the Notice
of Motion.
AD PARAGRAPH 57
165. The contents of
this paragraph are denied.
166. The Applicant’s
claim for asylum has been dealt with according to prescribed rules
and regulations of the Refugees Act.
167. The Applicant
failed to establish that the RSDO’s decision was not in
accordance with section 25 of the Refugees Act.
AD PARAGRAPH 58
168. The contents of
this paragraph are denied.
169. The Applicant’s
claim for asylum has been dealt with according to prescribed rules
and regulations of the Refugees Act.
170. The Applicant
failed to establish that her claim for asylum was not manifestly
unfounded.
171. The basis of the
Applicant’s claim is that her application should have been
dealt with as an unaccompanied minor.
172.
On the Applicants own version, the asylum seeker application was not
made as an UAM.
[15]
173. The Applicant was
with her ‘alleged auntie’ when she made an application
for asylum seeker in
2007
.
174. The Applicant
failed to disclose all relevant information about her age to the RSDO
in
2014
.
175. It is important
to note that the Applicant was well versed in English in
2014
,
especially in light of the fact that she attended school in Cape Town
(on her own version).
AD PARAGRAPH 59
176. The contents of
this paragraph are denied.
177. It is very clear
that the Applicant made misrepresentations throughout the asylum
seeker process.
178. She inflated her
age in
2007
as is evident in the investigating diary of
2011.
179. The Applicant
failed to disclose all relevant information regarding her age to the
RRO and the RSDO.
180. The Applicant
failed to inform the RSDO that she met with the RRO in
2011
.
181. From
2007 to
2014
, the applicant had an opportunity to disclose all relevant
information pertinent to her claim for asylum to the RRO and the RSDO

in respect of her age.
182. The Applicant
failed to do so.
183. The Applicant was
invited to make representations to the SCRA prior to their decision.
184. The Applicant
failed to make representations to the SCRA.
AD PARAGRAPH 60
185. The contents of
this paragraph are denied.
186. The Applicant’s
claim for asylum has been dealt with according to prescribe rules and
regulations of the Refugees Act.
187. The Applicant
failed to establish how the RSDO and the SCRA acted ‘deficiently’
in terms of the Refugees Act.
188. The Applicant
failed to disclose all relevant information regarding her age to the
RRO and the RSDO.
189. The Applicant
failed to establish how her rights were breached.
190. The Applicant’s
claim for asylum was dealt with based on information provided by the
Applicant.
191. It is incumbent
on the Applicant to disclose all relevant information about her
asylum claim to the RRO and the RSDO.”
68.
The response, as can be seen, is largely
made up of rote allegations and does not engage at any meaningful
level with the issues
in the case other than in relation to the
Applicant’s age. It is, at its best, a repetition of
meaningless mantras which
do not constitute acceptable reasons. Given
that the deponent to the affidavit was the very person who made that
decision, she
was in the best position to do so and was duty bound to
inform the court and the applicant of her reasons.
69.
It will to be noted that the decision dated
29 September 2014, which was made on the same day that the applicant
was interviewed
by Ms. Mosoeunyane and immediately handed to the
applicant, is included in the supplementary Rule 53 record as part of
Annexure
LMM12. This notwithstanding, the RSDO makes no reference in
the answering affidavit to the reasons contained therein nor does she

confirm them under oath. Most importantly, there is no allegation in
the answering affidavit by the RSDO as to how she understood
the
phrase “
manifestly unfounded
”,
how she purported to apply it to the facts before her and what the
factual basis was for her finding in this regard against
the
applicant.
THE
REPLY IN THE ANSWERING AFFIDAVIT REGARDING THE RSDO’S DECISION
70.
When one has regard to the supplementary
affidavit and the Department’s response thereto, the position
is slightly different.
In paragraphs 56 and 57 above I reproduced the
relevant allegations made by the applicant in the supplementary
affidavit in response
to the RSDO’s decision made available in
the supplementary Rule 53 record. I shall now set out the reply of
the RSDO to these
allegations to the extent relevant.
“
AD
PARAGRAPH 38
244.
The content of this paragraph is denied. The Respondents have serious
credibility concerns in this regard. The Applicant is
changing her
statement as she goes along. The Applicant must provide this
Honourable Court with reasons for the information given
to the RSDO.
AD
PARAGRAPH 39
245.
The content of this paragraph is denied. The Respondents note that
the life of the Applicant was not in danger when she left
her country
of origin but that she had a subjective fear that she could be killed
if she stayed in her country. On the applicant’s
own version,
she did not leave the DRC as an unaccompanied minor nor did she enter
the RSA as an unaccompanied minor.
AD
PARAGRAPH 40.1
246.
The Respondents note the content of this paragraph. On the
Applicant’s own version she states that ‘they’

arrived in 2007.
AD
PARAGRAPH 40.2
247.
The content of this paragraph is denied. The Respondents has (sic)
serious credibility concerns in this regard. The Applicant
failed to
allege and proof (sic) the names and particulars of her aunt and her
friend’s mother.
AD
PARAGRAPH 40.3
248.
The content of this paragraph is denied. It is the Applicant who
provided this information to the RSDO. The Applicant must
allege and
proof (sic) the source of information.
AD
PARAGRAPH 40.4
249.
The content of this paragraph is denied. The Applicant states that
she does not know where her mother is and yet she knows
that she is
still alive and that she had a son.
AD
PARAGRAPH 41
250.
The content of this paragraph is denied. The Applicant failed to
allege and proof (sic) that the Respondents came to the wrong

decision.
AD
PARAGRAPH 42
251.
The content of this paragraph is denied. The relevance (sic) this
paragraph is not clear. The Applicant failed to allege and
proof
(sic) her age at the time when she entered the RSA.
AD
PARAGRAPH 43
252.
The content of this paragraph is denied. The paragraph contains
irrelevant matter.
AD
PARAGRAPH 44
253.
The content of this paragraph is denied.”
71.
These portions of the answering affidavit
suggest that the primary concern of the RSDO in refusing the asylum
application was the
applicant’s lack of credibility. She had
allegedly given conflicting information regarding her date and place
of birth, her
date of entry into the Republic and whether she entered
as an unaccompanied minor. Yet when the applicant makes allegations
which
seek to bring her within the ambit of s3 of the Act by
referring to current turmoil and internal unrest in the DRC in
paragraph
43 of her supplementary affidavit, the RSDO’s
response in para 252 of the answering affidavit is dismissive,
alleging a lack
of relevance in relation to such allegations.
THE
RSDO’s DECISION AS INCORPORATED IN ANNEXURE LMM 12
72.
As I have already pointed out, there is no
attempt by either the RSDO or the Department in the answering
affidavit to adduce any
substantive reasons for the refusal of asylum
nor any endorsement of the RSDO’s decision to refuse asylum.
That notwithstanding,
it is necessary to deal with the RSDO’s
decision of 29 September 2014 for the sake of completeness, given
that it does form
part of the Rule 53 record.
73.
At the outset the RSDO articulates the
applicant’s grounds for asylum as follows.
“
Claim
You claim to have left
your country because you have no family and you came here with your
aunty who was taken (sic) care of you.
You said you last saw your
aunty in 2009 and what you know is she is no longer in the country.
Furthermore, you claimed that you
are not willing to go back to your
country because you have no family back there. Lastly, you indicated
that you left your country
in 2003 and arrived in RSA on (sic) the
same year using land transport.”
74.
Then the RSDO recites the provisions of s3
of the Act and goes on to explain the burden of proof which the
applicant bears.
“
Burden
of Proof
The UNHCR Handbook on
Procedures and Criteria for Determining Refugee Status, at paragraph
196, page 47, affirms the assertion that
‘it is a general legal
principle that the burden of proof lies on the person submitting a
claim.’
The standard of proof
is reasonable (sic) possibility of persecution and must be considered
in light of all circumstances i.e. past
persecution and forward
looking appraisal of risk (reasonable possibility of persecution).”
75.
The RSDO then deals with the veracity of
the applicant’s allegations as follows.
“
Credibility
During the second
interview with the Refugee Status Determination Officer [RSDO]
credibility concerns were discovered and you were
inconsistent both
on your application form and the second interview. During the
interview, you were given the opportunity to clearify
(sic)
discrepancies that were brought to your attention and you failed to
do so.”
76.
Finally, the RSDO articulates her reasons
for refusing asylum thus.
“
Reason
for Decision
During the interview,
you mentioned that you left your country when you were very young and
you came here with your aunt, who had
her own status. You said your
parents passed on when you were very young and your aunty took you
with her because you had no one
as you were the only child. There
were some discrepancies between your oral and written testimony and
when asked about them you
said you have no idea what was written on
your BI 1590. You said your anty (sic) whom you came with is no
longer in RSA, and you
last saw her n (sic) 2009.
Your claims are made
on grounds other than those on which such an application may be made
under the Refugees Act. This means an
application that is clearly not
related to the criteria for the granting of refugee status laid down
in the 1951 Convention, the
1969 OAU Convention and our own
Refugees
Act, 1998
. It is therefore on this basis that your application be
rejected as Manifestly Unfounded in terms of the Refugees Act 130 of
1998
and other related legal instruments. With your second claim of
family disputes, we cannot grant Asylum (sic) because your
application
for Asylum (sic) is made on grounds other than those on
which an application may be made under the Act.”
EVALUATING
THE RSDO’S REASONS
77.
There
can be little doubt that the Department’s records reflect
inconsistency in the applicant’s version as to her date
of
birth. It ranges from 1987 to 1994 and even 1995. The Department’s
records also reflect a suggestion (which is denied)
that the
applicant intentionally changed her date of birth so as to place
herself in a position where she could might be afforded
the
protection contemplated under s32
[16]
of the Act as a child in need of care. The suggestion that a
Departmental official sanctioned the alteration of so important an

event as the applicant’s date of birth so as to afford her
legal entitlement to a status which she was otherwise not entitled,

beggars belief, but that is indeed what Mr. Shwane’s entry in
2008 amounts to.
78.
In any event, by the time the applicant was
interviewed on 29 September 2014 she was (on her own version) a major
and so any considerations
of protection under the Child Care Act were
irrelevant by the time the RSDO’s decision was made. Hence her
date of birth
was not material to the substance of the application at
that stage. This does not of course mean that a false statement as to
the
applicant’s date of birth is irrelevant for other
considerations under s24(3) of the Act. However, it is not clear just
how
the RSDO sought to draw a negative conclusion which militated
against the granting of asylum from the inconsistencies in the
applicant’s
date of birth alone.
79.
There are no inconsistencies in the
Department’s records as to the applicant’s alleged place
of birth. In the Form BI
-1590 she is said to have been born in
Kisangani. This is the same place mentioned to the RSDO in the
interview of 29 September
2014 where it was recorded that the
applicant spent the first 8 years of her life there, whereafter, it
is said, she moved to Kinshasa
with her aunt. Not long thereafter,
according to the RSDO, the applicant said she travelled to South
Africa.
80.
In
argument, Ms. Samuels utilized the Google Maps app on her cellphone
and invited the Court to do likewise when considering the
matter. She
observed that the distance between Kisangani (which is in the
north east of the DRC) and the capital, Kinshasa
(which is in the
south west) is more than 2300km. Counsel also noted that in the
founding affidavit the applicant alleged that
she was born in the
province of Katanga, which she noted was in the south east of the
country more than 1500 km from the capital
and about 1400km due south
of Kisangani, whereas the copy of her birth certificate (annexed to
the founding affidavit) and the
copy of her passport (annexed to the
replying affidavit) both reflect the applicant’s place of birth
as Lubumbashi. This,
said Ms. Samuels (thanks to Google) was also in
the south west of the country.
[17]
81.
While
there is certainly some uncertainty on the papers before the Court as
to just where the applicant first saw the light of day,
there was no
dispute on the evidence available to the RSDO: all of the
documentation suggested Kisangani
[18]
and there was no reference to either Lubumbashi or Katanga, the
province in which it is located. The RSDO accordingly had no reason

(in September 2014) to find a lack of credibility on the part of the
applicant as regards her alleged place of birth.
82.
As will be seen from the extracts from the
RSDO’s decision quoted above, she expressed “
credibility
concerns
” arising from the Form
BI -1590 form on the one hand and the interview that she held with
the applicant. The decision is,
however, sorely lacking in any detail
in this regard. The applicant was at least entitled to know what
aspects of her case were
untrue and which were attributable to
possible misunderstanding given her age at the time the Form BI –
1590 was completed
and the complications arising from language and
interpretation in regard thereto.
83.
As I attempted to demonstrate earlier in
this judgment, the Form BI – 1590 was partially completed by a
person other than
the RRO and who was probably a French language
speaker – perhaps the interpreter-aunt referred to as “K”
in the
document. Yet the RSDO seems to have paid little regard to the
fact that such inaccuracies as may have arisen 7 years later when
the
applicant was a major (and who then spoke English), as a consequence
of ignorance or misunderstanding on the part of the aunt.
And, the
reference to “
Mossel Bay
”
could notionally have been an incorrect recordal of “
Muizenberg
”
on account of phonetic similarity and a foreign accent. The Court is
driven to speculation because we just do not know:
the RSDO has not
said anything more than that “
There
were some discrepancies between your oral and written testimony and
when asked about them you said you have no idea what was
written on
your BI 1590.”
THE
APPROACH TO ASSESSING REASONS PROVIDED BY THE RSDO
84.
In
the recent judgment in
Gavric
[19]
the Constitutional Court dealt with the functions and duties of an
RSDO in determining applications for asylum. I intend to quote

extensively from the judgment of Theron J because it defines the
approach, particularly with respect to the adequacy of reasons,
which
is mandated in circumstances such as the present case.
“
[67]
Asylum seekers are entitled to administrative action that is lawful,
reasonable and procedurally fair. A decision on an asylum
application
constitutes administrative action. Counsel for the applicant and
respondents were agreed that the rejection of an application
for
refugee status must be accompanied by adequate reasons which, at the
least, satisfy the requirement of rationality.
[68]
In
Koyabe
[20]
this Court set out the factors to be taken into account when
determining the adequacy of reasons:
‘
[T]he
factual context of the administrative action, the nature and
complexity of the action, the nature of the proceedings leading
up to
the action and the nature of the functionary taking the action.
Depending on the circumstances, the reasons need not always
be ‘full
written reasons’; the ‘briefest pro forma reasons may
suffice’. Whether brief or lengthy, reasons
must, if they are
read in their factual context, be intelligible and informative. They
must be informative in the sense that they
convey why the
decision-maker thinks (or collectively think) that the administrative
action is justified.’
[69]
The Supreme Court of Appeal in
Phambili
[21]
explained the value of giving reasons as enabling an aggrieved person
to understand why the decision went against her and decide
whether or
not to challenge the decision. It is clear from
Phambili
that the reasons should consist of more than mere conclusions, and
should refer to the relevant facts and law, as well as the reasoning

processes leading to those conclusions. In this matter the RSDO
provided mere conclusions, not reasons. The RSDO failed to consider
a
fundamental question, namely, is the alleged crime political in
nature.
[22]
[70]
It must be noted, as the amicus has mentioned, that many of the
applicants for asylum who deal with RSDO’s are unrepresented,

vulnerable and lacking in the necessary language and legal skills to
have a meaningful engagement with them and ensure that the
RSDOs’
adhere to their duties. It is therefore imperative that the RSDO’s
fulfill their functions properly. This is
especially the case given
the catastrophic consequences that can result if an application for
asylum is wrongly rejected. An RSDO’s
failure to properly
exercise her powers can have devastating consequences for the
applicant concerned.
[71]
Having regard to the context in which RSDO’s make decisions and
the potential consequences thereof for the applicant,
they are
required to adhere to the principles of administrative justice. In
this matter the reasoning of the RSDO fell short of
the required
standard in that, at the very least, the RSDO ought to have provided
some reasoning for her conclusions.
Procedural
Unfairness
[72]…
[73]
Section 24(1) of the [Refugees] Act provides that an RSDO may, when
considering an asylum application, request further information
from
an applicant, the Refugee Reception Officer or the United Nations
High Commissioner for Refugees (UNHCR) representative. The

Handbook
[23]
recognises that it may be necessary for the RSDO to assist the
applicant in obtaining relevant information in order to properly

determine the application. This is premised on the factual reality
that persons fleeing their country often arrive with the barest

necessities and often cannot afford legal representation.
[74]
Regulation 12
[24]
provides:
‘
(1)
With exception of cases decided under section 35(1) of the Act,
eligibility determination will be made on a case-by-case basis,

taking into account the specific facts of the case and conditions in
the country of feared persecution or harm. In making a determination

of eligibility, the [RSDO] may –
(a)
request information or clarification
from the applicant or Refugee Reception Officer;
(b)
consult with and invite a UNHCR
representative to provide information and, with the permission of the
asylum seeker, provide the
UNHCR representative with any information
requested by the UNHCR, pursuant to sub-sections 24(b) and (c) of the
Act;
(c)
consider country conditions
information from reputable sources; and
(d)
refer any question of law to the
Standing Committee pursuant to section 24 (3) (d) of the Act.’…
[79]
It is… necessary to state that a person can only be said to
have a full and meaningful opportunity to make representations
if the
person knows the substance of the case against her. This is so
because the person affected usually cannot make worthwhile

representations without knowing what factors may weigh against her
interests. This is in accordance with the maximum
audi
alteram partem
…which is a
fundamental principle of administrative justice and a component of
the right to just administrative action contained
in section 33 of
the Constitution.
[80]
In order to give effect to the right to a fair hearing an interested
party must be placed in a position to present and controvert
evidence
in a meaningful way. In
Foulds
,
[25]
Streicher J held that a decision maker was under an obligation to
disclose adverse information and adverse policy considerations,
and
give an affected person an opportunity to respond thereto. If an
administrator is minded to reject the explanations of the
interested
party, she should at least inform the party why she is so minded, and
afford that party the opportunity to overcome
her doubts.
[81]….
On the basis of the paucity of the reasons provided by the RSDO [in
this matter] and the procedural unfairness, the
decision of the RSDO
was invalid and must be set aside.”
(Internal
references omitted)
85.
From a procedural point of view, I am of
the view that in this matter the RSDO failed to measure up to the
standard required by
the Constitutional Court. She did not meet the
test suggested above in
Foulds
and articulate her difficulties with the application in order that
the applicant could be given a fair chance to satisfy the RSDO,
nor
did she take the trouble to establish just why it was that the
applicant claimed the right to be in the Republic and under
what
circumstances she purported to flee her country of origin. This is
critical in determining under what category of refugee
as
contemplated in s3 of the Act an applicant resorts.
86.
Further, from a substantive point of view,
I regret to say that the reasons set out by the RSDO are neither
intelligible nor informative
and certainly do not convey to the
ordinary reader thereof why she thought that her refusal of the
application for asylum was justified.
Central to that decision was
the criterion of “
manifestly
unfounded
” under s24(3)(b) of the
Act.
“
MANIFESTLY
UNFOUNDED
”?
87.
What then is meant by “
manifestly
unfounded”
, being the basis upon
which the RSDO rejected the application for amnesty? During the
course of preparing this judgment counsel
were requested to assist
the Court with any authorities relevant to the phrase, given that
neither side had attempted to do so
in their original heads or during
argument.
88.
Ms.
Samuels filed a short supplementary note and referred the Court to
the UNHCR
Handbook
,
the UNHCR’s
Position
on Manifestly Unfounded Applications for Asylum
[26]
,
Gavric’s
case and the judgment in this Division of Holderness AJ in
O.N
.
[27]
.
89.
Ms.
Christians did likewise and, in addition to the 1992 UNHCR Position
Paper, referred the court to a number of Canadian decisions
dealing
with the point,
Rahaman
[28]
,
Ahmad
[29]
and
Liang
[30]
.
Counsel also referred to the decision of the House of Lords in
Yogathas
and Thangarasa
[31]
.
90.
Neither the
Handbook
nor
Gavric
offer any assistance regarding understanding the phrase because it is
not dealt with in either. In
O.N.
the Court assumed, on the basis of the decision taken by the RSDO,
that the application for asylum had been rejected as “
manifestly
unfounded”
but this was not the
express wording employed by the RSDO in that decision. After
referring to the definition in s1 of the Act
the court looked at the
facts of the case and found that a case for asylum was “
well
founded, and has (sic) the result that [the applicant] is a refugee
as defined in section 3(a) of the Act.”
The
decision unfortunately entails no analysis of the phrase and is of
little assistance in determining what the Legislature intended
it to
mean.
91.
Some assistance can be found in both the
Position Paper and the decision of the House of Lords. As appears
from the Refworld website
referred to above, the Position Paper is
the UNHCR’s response to the issue involving manifestly
unfounded asylum applications
which was adopted at meeting held in
London on 30 November – 1 December 1992 by Ministers of Member
States of the European
Union (“EU”) responsible for
immigration. The purpose of the meeting was to discuss the
harmonisation of procedures
to be adopted by Member States in dealing
with an ever-increasing number of asylum applications with which the
EU was being confronted
at the time.  The Position Paper
commences with the following introduction.
“
UNHCR
has long taken the position that national procedures for
determination of refugee status may usefully provide for dealing
in
an accelerated procedure with manifestly unfounded applications for
refugee status or asylum. These procedures should, however,
include
certain procedural safeguards regardless of whether the claim is
presented at the border or within the territory. These
guarantees
should also be applied to pre-admission/screening procedures at the
border. Furthermore, these guarantees should be
respected in
procedures dealing with first country of asylum cases.
92.
The Position Paper then furnishes
definitions of “
Manifestly
Unfounded or Abusive Applications”
as
follows under distinct headings.
“
(i)
Clearly Fraudulent Applications
The Office has stated
that the notion of ‘clearly fraudulent’ could reasonably
cover situations where the applicant
deliberately attempts to deceive
the authorities determining refugee status. The mere fact of having
made false statements to the
authorities does not, however,
necessarily exclude a well-founded fear of persecution and vitiate
the need for asylum, thus making
the claim ‘clearly
fraudulent’. Only if the applicant makes what appear to be
false allegations of a material or substantive
nature relevant for
the determination of his or her status could the claim be considered
‘clearly fraudulent’.
As to the use of
forged or counterfeit documents, it is not the use of such documents
which raises the presumption of an abuse of
the application, but the
applicant’s insistence that the documents are genuine. It
should be borne in mind in this regard
that asylum-seekers who have
been compelled to use forged travel documents will often insist on
the genuineness until the time
they are admitted into the country and
their application examined.
Applications suspected
of being filed to forestall an expulsion order should only be
considered as manifestly unfounded if the applicant
has had ample
opportunity to apply for asylum previously and has not given a valid
explanation for the delay.
Where applicants have
already had their claim for asylum rejected in another country upon
examination of the substance of their
claim, UNHCR agrees that such
applications could appropriately be considered in the procedure for
manifestly unfounded applications.
However, this should only be the
case where the examination of the substance is in conformity with
UNHCR eligibility standards
and procedures comprise adequate
procedural guarantees. In such cases, rejection in a previous
procedure raises a rebuttable presumption
that there is no substance
to the claim.
(ii) Applications
not Related to the Granting of Refugee Status
The Office has on a
number of occasions stressed that a claim should not be rejected as
manifestly unfounded even if it does not
fall under the 1951
Convention definition, if it is also evident that the applicant is in
need of protection for other reasons
and thus may qualify for the
granting of asylum.
When an assessment of
credibility is necessary to establish the subjective element of the
applicant’s claim the situation
is different. Issues of
credibility are so complex that they may be more appropriately dealt
with under the normal procedure.”
93.
The
speech of Lord Hope of Craighead in
Yogathas
and Thangarasa
[32]
provides
an understanding of the genesis of the Position Paper. The Learned
Law Lord explained how the entry of the United Kingdom
and other
parties into the EU created problems for the interpretation of
domestic statutes against the background of the European
Convention
for the Protection of Human Rights and Fundamental Freedoms (“
ECHR
”)
within the jurisdiction of the European Court for Human Rights. There
were particular concerns where asylum had been refused
in one Member
State and a refugee then applied for asylum in another. How then were
countries within the EU required to consider
asylum in respect of
persons who had come from a Member State and might be required to be
returned to such State in the event of
asylum being refused?
94.
As I understand it, the decision at the
London meeting of Member States in November/December 1992 to adhere
to the UNHCR recommendations
in the Position Paper led to the
adoption later that month in Edinburgh of the so-called “
1992
Resolution
” by the European
Council. Lord Hope explains further.
“
26.
By the end of the 1980’s the Member States of the European
Union were faced with a rising number of applications for asylum.
The
burden of dealing with these applications, many of which turned out
after examination to be unfounded, was causing increasing
concern to
the national authorities. Among other problems was the fact that the
large number of applications which were unfounded
was delaying the
recognition of refugees who were in genuine need of protection…
27. The creation of an
internal market in which people could move freely within between
member states created a further problem.
It led to a concern that
asylum seekers might seek to abuse the system by lodging applications
for asylum in two or more member
states…
28…
29. The 1992
Resolution… was one of the products of an ad hoc
intergovernmental programme on asylum policy which had been

established in 1986…
30. In paragraph 1 (a)
of the main text, under the heading ‘Manifestly unfounded
applications’, the 1992 Resolution
declared:
‘
An
application for asylum shall be regarded as manifestly unfounded
because it clearly raises no substantive issue under the Geneva

Convention and the New York Protocol for one of the following
reasons:
·
there is clearly no substance to the
applicant’s claim to fear persecution in his own country…;
·
the claim is based on deliberate
deception or is an abuse of asylum procedures…’
31…
‘
Manifestly
unfounded’
32. The use of the
expression ‘manifestly unfounded’ in this context appears
to have its origin in the work of the ad
hoc intergovernmental
program which was endorsed by the 1992 Resolution. It was, of course,
already familiar in the context of
human rights, as article 35.3 of
the ECHR provides that applications to the European Court of Human
Rights which are manifestly
ill-founded may be declared inadmissible.
It is clear from the way in which the expression was used in the 1992
Resolution that
it was intended to describe those applications which,
because they were clearly without substance, were suitable for
treatment
by means of an accelerated procedure without compromising
the obligations of Member States under the Geneva Convention.”
95.
T
he
Canadian decisions referred to by Ms. Christians are also of some
assistance. The applicable statutory provision in that country
[33]
includes the phrase “
manifestly
unfounded
”
and proceeds on the basis that such a claim for asylum is “
clearly
fraudulent”.
The
judgment in
Liang
provides a useful summary of the Canadian approach.
“
[15]
The Applicant argues that the manifestly unfounded finding is not
reasonable as it is premised on a series of other conclusions
reached
by the RPD
[34]
that are not reasonable and do not go to the core of his claim for
protection. In particular, the Applicant raises issue with a
number
of negative credibility findings made by the RPD, as well as the
conclusion that the tendered summons is a fraudulent document.
[16]
The consequences of a ‘manifestly unfounded’
determination are significant as they deny the Applicant an
opportunity
to appeal the RPD decision and deny an automatic stay of
removal. As such, a finding that the claim is manifestly unfounded is
subject to a full consideration of all the evidence (
Rahaman
v Canada (Minister of Citizenship and Immigration)
.
In particular, as
Rahaman
explains, a manifestly unfounded determination cannot be made simply
because a board member does not consider elements of the claimant’s

narrative evidence to be credible.
[17]
This case is similar to the recent decision of
Yuan
v Minister of Citizenship and Immigration
2018 FC 755
where Justice Strickland found the RDP’s finding
that the claim was manifestly unfounded was not reasonable, and
summarized
her reasoning at paragraph 44 as follows:
And
while
Warsame
and
Nanyongo
could be taken to suggest that it was open to the RPD to base its
manifestly unfounded finding of its cumulative credibility findings,

I confess that I have some concern that, at least in this case, these
add up to the claim been clearly fraudulent, as opposed to
having no
credible basis. In any event, here the RPD did not base its
manifestly unfounded finding on the basis of its cumulative
negative
credibility findings.
[18]
Similarly, here the RPD does not appear to have reached the
manifestly unfounded determination based upon cumulative negative

credibility findings, but instead based upon finding the tendered
summons was fraudulent.”
96.
Finally,
in
Ahmad
the Federal Court, relying on
Yuan
[35]
,
found (at paragraph 30) that the threshold for finding that a claim
was manifestly unfounded was high.
97.
In summary then the international
authorities referred to all appear to adhere to the principle that a
finding that an application
is manifestly unfounded is intended to
apply only to the clearest of cases and is intended to be used as a
mechanism to swiftly
weed out fraudulent or bogus claims where an
applicant would otherwise be unable to bring herself within the ambit
of the definition
of a refugee as contemplated under the original
international instrument, the Geneva Convention Relating to the
Status of Refugees
of 1951. Importantly, the approach has been to
avoid deciding issues of credibility (save where fraud is obvious)
when determining
whether a claim is manifestly unfounded.
98.
In the considering the South African
domestic statute, one finds that the Legislature was mindful of the
requirement in the Position
Paper that asylum applications which are
rejected as “
Manifestly Unfounded
”
should be subjected to procedural safeguards such as internal review,
hence the automatic right afforded to an unsuccessful
applicant under
s25 of the Act. However, our Act does not, like the Position Paper,
treat a “
Manifestly Unfounded
”
application as being synonymous with abusive or fraudulent
applications. Nor is it entirely comparable with the Canadian
statute
which expressly defines the phrase in the context of a fraudulent or
abusive application.
99.
Rather s24(3)(b) grants the RSDO the power
to refuse an application in each of the 3 specified categories
referred to in the subsection,
and each category will have to be
assessed with reference to its own particular facts. As an aid to
assist the RSDO in coming to
the relevant conclusion, the Act
provides distinct definitions for each of “
manifestly
unfounded”, “abusive”
or
“
fraudulent
”
asylum applications.
100.
So, one finds in s1 an “
abusive
application for asylum
” is
defined as
“
an
application for asylum made –
(a)
with the purpose of defeating or
evading criminal or civil proceedings or the consequences thereof; or
(b)
after the refusal of one or more
prior applications without any substantial change having occurred in
the applicant’s personal
circumstances or in the situation in
his or her country of origin;
101.
Similarly, a “
fraudulent
application for asylum
” is
defined in s1 as “
an application
for asylum based without reasonable cause on facts, information,
documents or representations which the applicant
knows to be false
and which facts, information, documents or representations are
intended to materially affect the outcome of the
application”.
Consideration of such an application could involve determining
credibility on the part of the applicant.
102.
And, as already noted above the definition
of “
manifestly unfounded
”
is “
an application for asylum made
on grounds other than those on which such an application may be made
under this Act.”
103.
In resorting to establish the intention of
the Legislature in regard to s24(3)(b), one must resort to the
ordinary basis of statutory
interpretation. In my view, by
intentionally creating a separately defined ground for refusal under
the rubric “
manifestly unfounded
”
the Legislature has expressly excluded from consideration under this
ground the criteria which resort under either an abusive
or
fraudulent application. This would accord with the canon of
construction under the maxim “
exclusio
unius expressio altius”
. To this
extent, our Act distinguishes the over-arching categories of
applications which the Position Paper and the Canadian statute
cover.
104.
S3 of the Act creates the categories of
societal hardship and other prejudicial circumstances which would
entitle a person to flee
her country of origin and seek asylum in the
Republic. Accordingly, persecution on the basis of,
inter
alia,
one’s race, religion or
nationality would afford a victim of such persecution ground for
asylum under s3(a). So too, under
s3(b), a situation where the
country of origin had been subjected to external aggression,
occupation or foreign domination would
permit a refugee to seek
asylum in the Republic. Further under s3(b), if the country of origin
has been subjected to “
events
seriously disturbing or disrupting public order in either a part or
the whole of… the country…and the applicant
is
compelled to leave… her place of habitual residence in order
to seek refuge elsewhere…”
she would be entitled to apply for asylum here.
105.
One can conceive of any number of
illustrative examples in considering when a claim is manifestly
unfounded. In the first place,
there is the situation where an
applicant has already been refused asylum and she applies again on
the same basis as before. Then
there is the situation, where an
applicant intentionally claims, in order to be eligible for asylum
under s3(a) of the Act, to
come from a region which is notorious for
its persecution of ethnic minorities when in truth and fact she is
not a member of that
minority group or has never resided in that
region, In my view, this too would amount to a manifestly unfounded
application. Or,
for example, a citizen of Lesotho who enters South
Africa and claims refugee status on the basis of s3(b) alleging that
his country
of origin has been occupied by South Africa when such an
invasion has not occurred, would be liable to be refused asylum
without
more on the basis of the application being manifestly
unfounded.
106.
And, if an applicant were to present
herself at the Refugee Reception Office and seek asylum because her
country of origin’s
health care system had collapsed and she
desperately needed to avail herself of the Republic’s health
care system to address
a life-threatening illness, it would not be
competent to consider her for asylum because she would be making an
application for
asylum on grounds other than those set out in s3(a)
or (b) of the Act. Simply put, her application would (to use the
vernacular)
not tick the statutory boxes and it would be liable to be
rejected as manifestly unfounded.
107.
In the result, I agree with Ms. Christians’
submission in her supplementary note that the definition of
manifestly unfounded
contemplates a swift decision made in a
clear-cut case at the first interaction that an applicant has with
the authorities dealing
with refugees which is not dependent on
findings of credibility.
108.
In coming to her decision in this matter
the RSDO simply said to the applicant that her claim “
was
made on …grounds other than those on which such an application
may be made under the
Refugees Act.”
However
,
the RSDO did not articulate with any degree of clarity just what
those grounds were: all that she said was “
with
your second claim of family disputes, we cannot grant Asylum (sic)
”.
The finding begs the question, what was the first claim made by the
applicant?
109.
In any event, the RSDO got it wrong - there
was no claim for asylum based on “
family
disputes”.
As I read the
documents contextually, at all times the claim was predicated on the
applicant fleeing civil unrest in the DRC and
thus, arguably, fell to
be adjudicated under the grounds contemplated in s3(b) of the Act
resorting under the phrase “
events
seriously disturbing or disrupting public order”.
In
the result the RSDO asked the wrong question and, unsurprisingly,
reached the wrong conclusion. The decision therefore lacks

rationality.
CONCLUSIONS
ON REVIEWABILTY
110.
For the reasons set out above, I am of the
view that the decision of the RSDO is both procedurally and
substantively flawed and
for those reasons it falls to be reviewed.
VARIATION
OF THE 180 DAY TIME LIMIT
111.
In terms of s7(1) of PAJA the application
for review should have been lodged within a reasonable time after it
came to the applicant’s
notice, but in any event not more than
180 days thereafter.
112.
The decision of the RSDO was taken on 29
September 2014 and the review by the SCRA upholding it was taken on 8
June 2016. However,
the SCRA decision was only handed to the
applicant under cover of a letter dated 5 October 2016. The
Department offers no explanation
for effectively taking 2 years to
review a fairly straightforward decision but is quick to hold the
applicant to the time limits
in PAJA.
113.
In any event, it appears that the applicant
consulted a firm of attorneys specializing in immigration law, Craig
Smith and Associates,
who purported to lodge an internal appeal with
the SCRA on 21 October 2016. When there was no response to that
procedure from the
SCRA the attorneys filed an application on 20
March 2017 in which the court was asked to direct the SCRA to make a
decision on
the so-called appeal. That application was set down for
hearing in the Motion Court on 25 April 2017.
114.
The applicant says that prior to the matter
being heard her attorneys were contacted by the State Attorney who
alerted them to the
correct state of affairs. The Motion Court
application was thus withdrawn and this application was launched on
25 July 2017. Although
the delay between April and July 2017 is not
explained by the applicant it is not inordinately long in the
circumstances, particularly
if regard is had to the fact that there
were documents which needed to be obtained, assessed and filed with
the application for
review. When viewed overall it cannot be said
that the applicant sat on her hands and did nothing. She appointed
attorneys who
professed expertise in that area of the law and was
entitled to expect of them to attend to her matter diligently and
expeditiously.
She should not be prejudiced if her attorneys did not
execute their mandate professionally and timeously.
115.
In
exercising its power under s9(2) of PAJA to grant an extension of
time beyond the 180 day limit contemplated under s7(1) the
Court is
enjoined to give consideration to the interests of justice. In
Camps
Bay Ratepayers
[36]
Maya JA (as she then was) postulated the approach as follows –
“
[54]…Section
9(2) however allows the extension of these time frames where ‘the
interests of justice so require’.
And the question whether the
interests of justice require the grant of such extension depends on
the facts and circumstances of
each case: the party seeking it must
furnish a full and reasonable explanation for the delay which covers
the entire duration thereof
and relevant factors include the nature
of the relief sought, the extent and cause of the delay, its effect
on the administration
of justice and other litigants, importance of
the issues to be raised in the intended proceedings and the prospects
of success.”
116.
Having regard to those considerations, and
in particular the nonchalance with which the SCRA approached its
functions in confirming
the decision of the RSDO, the importance of
the matter to the applicant and her prospects of success in the
review, it would in
my view be contrary to the interests of justice
to deny the relief sought under s9(2). To do so would result in the
“
catastrophic consequences
”
alluded to by Theron J in
Gavric
.
APPROPRIATE
RELIEF
117.
Counsel were both in agreement that in the
event of the application succeeding this was not an appropriate case
for the court to
substitute its own decision. Rather, it was
submitted, the matter should be remitted to the RSDO for a fresh
decision to be taken
by a person other than Ms. Mosoeunyane. I agree
with that submission. In addition, and to the extent that the factual
and legal
basis for the applicant’s expulsion from the Republic
is voided by the review of the Departmental decisions, it is
necessary
and appropriate to set aside that decision too.
ORDER
OF COURT
Accordingly
it is ordered that:
A.
The applicant’s failure to meet the
time limits imposed by
s7(1)
of the
Promotion of Administrative
Justice Act, is
extended until 25 July 2017;
B.
The decision taken by the second respondent
on 29 September 2014 to refuse the applicant’s application for
asylum in terms
of
s24(3)(b)
of the
Refugees Act, 130 of 1998
is
hereby reviewed and set aside;
C.
The decision taken by the first respondent
on 6 June 2016 in terms of
s25(1)
of the said
Refugees Act to
uphold
the aforesaid decision of the second respondent is hereby reviewed
and set aside;
D.
The application for asylum is remitted for
reconsideration by the second respondent by a person other than Ms.
Zakhali Mosoeunyane;
E.
The order that the applicant should leave
the Republic of South Africa purportedly made in terms of Regulation
30(4) of the Immigration
Regulations is hereby reviewed and set
aside.
F.
The applicant’s costs of suit herein
are to be paid by the first, second, third and fourth respondents
jointly and severally,
the one paying the other to be absolved.
__________________
GAMBLE,
J
Appearances:
For
the Applicant
: Ms. A. Christians
Instructed
by Streicher, Opperman & Associates,
Goodwood.
For
the Respondents
: Ms. M. Samuels
Instructed
by the State Attorney,
Cape
Town.
[1]
Save where specifically referred to, the 1
st
to 4
th
respondents will collectively be referred to as “
the
Department.
”
[2]
In
terms of s1 of the Act, a ”
manifestly
unfounded application”
is
defined as “
an
application for asylum made on grounds other than those on which
such an application may be made under this Act.
”.
[3]
In the answering affidavit the Department says that the initial
interview would have been conducted by a Refugee Reception Officer

(“
RRO
”)
and not the RSDO who ordinarily only comes into the picture at a
later stage of proceedings.
[4]
This must logically be understood to be a reference to the RRO
[5]
[5]
On 21 October 2016 the attorneys then acting for the applicant
purported to exercise their client’s “
right
to make further representations in relation to his refusal in terms
of s24(3)(b) of th
e
Act”.
The attorneys’ demand for a further hearing before the SCRA
was made about 2 weeks after the committee had informed the

applicant of its decision and it was thus
functus
officio
.
[6]
The applicant does not articulate her claim to refugee status under
either ss(a) or (b) but refers, in general terms, to s3 of
the Act
in each of her affidavits before the Court.
[7]
Presumably the RRO. If the signature on LMM 6 is compared with that
on LMM 7 it appears to be the same person – Erik Lotriet,
who
is identified as such on LMM 7.
[8]
While this may be a reference to a railway line, it is possibly a
misspelling of “
truck”.
[9]
The first 2 letters “br” appear to have been written
over an “m”
[10]
The notes are reproduced exactly as they appear on the record.
[11]
This word is written in manuscript on the record and is clearly a
subsequent correction of an obvious error.
[12]
The
United
Nations High Commission for Refugees.
[13]
“
5.
Reasons
for administrative action
(3)
If an administrator fails to furnish adequate reasons for an
administrative action it must, subject to subsection (4) and
in the
absence of proof to the contrary, be presumed in any proceedings for
judicial review that the administrative action was
taken without
good reason.”
[14]
Wessels
v Minister of Justice and Constitutional Development
2010 (1) SA 128
(GNP) at 141E
[15]
Presumably this is intended to be an acronym for “
unaccompanied
minor,”
[16]
32.
Unaccompanied child and mentally disabled person
(1)
Any child who appears to qualify for refugee status in terms of
section 3, and who is found under circumstances which clearly

indicate that he or she is a child in need of care as contemplated
in the Child Care Act, 1983… must forthwith be brought
before
the Children's Court for the district in which he or she was found.
(2)
The Children's Court may order that a child contemplated in
subsection (1) be assisted in applying for asylum in terms of
this
Act….
[17]
A Google search reflects that Lubumbashi is the second largest city
in the DRC after the capital, is situated in the province
of Katanga
and is about 2000 km south east of the capital.
[18]
Both the Form BI – 1590 and the RSDO’s interview notes
record the applicant’s ethnicity as “
Lokele
”.
According to Wikipedia Online encyclopaedia this is an ethnic group
of about 160 000 people who live on the south
bank of the Congo
River in the vicinity of Kisangani. Similarly, Wikipedia confirms
that “
Lingala
”
(one of the languages recorded on the Form BI – 1590 as
allegedly spoken by the applicant) is widely spoken in the
north of
the DRC, which includes the area around Kisangani.
[19]
Gavric
v Refugee Status Determination Officer, Cape Town and others
2019 (1) SA 21 (CC)
[20]
Koyabe
v Minister of Home Affairs and others
2010 (4) SA 327
(CC) at [64]
[21]
Minister
of Environmental Affairs and Tourism v Phambili Fisheries (Pty) Ltd;
Minister of Environmental Affairs and Tourism v
Bato Star Fishing
Pty) Ltd
2003 (6) SA 407
(SCA) at [40]
[22]
Gavric
concerned the question whether the applicant for asylum in question
was excluded from refugee status in terms of s4 the Act by
having
allegedly committed a crime which was not of a political nature.
[23]
UNHCR
Handbook on Procedures and Criteria for Determining Refugee Status
under the 1951 Convention and the 1967 Protocol to the
Status of
Refugees
[24]
Regulations issued in terms of s38 of the Act published in GN R366
of Government Gazette GG21075 of 6 April 2000.
[25]
Foulds
v Minister of Home Affairs
1996 (4) SA 137
(W) at 149H-J
[26]
The
document is dated 1 December 1992, 3 European Series 2, p397, and
available at
http://www.refworld.org/docid/3ae6b31d83.html
.
It will hereinafter be referred to for the sake of convenience as
“
The
Position Paper
.”
[27]
O.N. v
The Chairperson of the Standing Committee for Refugee Affairs and
others
[2017] ZAWCHC 57
(16 May 2017)
[28]
Rahaman
v Canada (Minister of Citizenship and Immigration)
[2002] 3 FC 537
[29]
Ahmad v
The Minister of Citizenship and Immigration
2019 FC 11
[30]
Liang v
The Minister of Citizenship and Immigration
2019 FC 58
[31]
R
(Santhia Yogathas and Sritharan Thangarasa) v Secretary of State for
the Home Department
[2002] UKHL 36; [2002] 4 All ER 800 (HL)
[32]
The case involved 2 Tamil refugees from Sri Lanka who had entered
the EU via Germany where they resided before moving later to
the
United Kingdom.
[33]
Section 107.1 of the Immigration and Refugee Protection Act, SC
2001, c27 [IRPA] reads as follows:
“
If the Refugee
Protection Division rejects the claim to refugee protection, it must
state in its reasons for the decision that
the claim is manifestly
unfounded if it is of the opinion that the claim is clearly
fraudulent.”
[34]
The Refugee Protection Division
[35]
Yuan v
Canada (Citizenship and Immigration)
2018 FC 755
at [45]
[36]
Camps
Bay Ratepayers’ and Residents’ Association v Harrison
[2010] 2 All SA 519
(SCA) at [54]