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[2015] ZASCA 35
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Minister of Home Affairs and Others v Somali Association of South Africa Eastern Cape (SASA EC) and Another (831/2013) [2015] ZASCA 35; 2015 (3) SA 545 (SCA); [2015] 2 All SA 294 (SCA) (25 March 2015)
Links to summary
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
no: 831/2013
Reportable
In
the matter between:
MINISTER
OF HOME
AFFAIRS
.......................................................................
FIRST
APPELLANT
DIRECTOR-GENERAL:
DEPARTMENT OF
HOME
AFFAIRS
..............................................................................................
SECOND
APPELLANT
CHIEF
DIRECTOR ASYLUM SEEKER MANAGEMENT
..........................
THIRD
APPELLANT
STANDING
COMMITTEE FOR REFUGEE AFFAIRS
.............................
FOURTH
APPELLANT
MINISTER
OF PUBLIC
WORKS
.....................................................................
FIFTH
APPELLANT
and
SOMALI
ASSOCIATION OF SOUTH AFRICA
EASTERN
CAPE (SASA
EC)
..........................................................................
FIRST RESPONDENT
PROJECT
FOR CONFLICT RESOLUTION AND
DEVELOPMENT
..........................................................................................
SECOND
RESPONDENT
Neutral
citation:
Minister of Home Affairs &
others v Somali Association of South Africa & another
(831/13)
[2015] ZASCA 35
(25 March 2015)
Bench:
Ponnan, Shongwe and Majiedt JJA and
Schoeman and Meyer AJJA
Heard:
16 February 2015
Delivered:
25 March 2015
Summary
:
Refugees Act 130 of 1998
– closure of refugee reception office
– decision challenged for want of consultation with interested
parties and rationality
– remedy – authorities ignoring
previous court orders.
ORDER
On
appeal from
: Eastern Cape High Court,
Port Elizabeth (Eksteen J, sitting as court of first instance)
Save
for setting aside paragraphs (2) and (3) of the order of the court
below, and substituting them with the orders that follow,
the appeal
is dismissed with costs, to be paid by the first to third appellants
jointly and severally, and to include the costs
of two counsel.
Paragraphs (2) and (3) are substituted with the following:
‘
(2.1)
The first to third respondents are directed to restore by 1 July 2015
the refugee reception services to the Port Elizabeth
Refugee
Reception Centre such that new applicants for asylum will be able to
make applications in terms of
s 21
of the
Refugees Act 130 of 1998
and, if they qualify, be issued with permits in terms of
s 22
of the
said Act.
(2.2)
The second respondent, the Director General of the Department of
Home Affairs, shall report in writing to the applicants
not later
than 15 April 2015 and, thereafter, on or before the 15
th
day of each succeeding month as to what steps have been taken and
what progress has been made to ensure compliance with the aforesaid
order.
(3)
The parties are granted leave to apply upon the same papers,
supplemented insofar as they consider that to be necessary, for
further relief.’
JUDGMENT
Ponnan
JA (Shongwe, Majiedt JJA and Schoeman and Meyer AJJA concurring):
[1]
In his famous ‘I am an African’ speech then Deputy
President Thabo Mbeki paid tribute to his ancestors along with
migrants from Asia, Europe and the rest of Africa and thanked them
for teaching him that ‘we could both be at home and be
foreign’
and that ‘freedom was the necessary condition for . . . human
existence’.
[1]
And yet,
as the South African Human Rights Commission observed:
[2]
‘
If
a society’s respect for the basic humanity of its people can
best be measured by its treatment of the most vulnerable in
its
midst, then the treatment of suspected illegal immigrants . . .
offers a disturbing testament to the great distance South Africa
must
still travel to build a national culture of human rights.’
[2]
Many migrants, especially refugees and asylum seekers (who represent
a small but significant portion of those who, for whatever
reason,
are attracted to South Africa) experience grave difficulty in
legalising their stay in this country. The condition of being
a
refugee connotes a ‘special vulnerability as refugees by
definition are persons in flight from the threat of serious human
rights abuse’.
[3]
Hannah
Arendt states that the ‘fundamental deprivation of human rights
is manifested first and above all in the deprivation
of a place in
the world (a political space) which makes opinions significant and
actions effective’.
[4]
That especial vulnerability is recognised in our legislation
governing the status of refugees – the Refugees Act 130 of 1998
(the Act). Its passage represented a significant break with a past
characterised by measures designed to control the entry and
presence
of what were described as ‘aliens’ in this country and
proclaims instead a more progressive commitment to
refugee protection
in accordance with international standards. According to s 3 of the
Act, which draws on international instruments
such as the 1951 United
Nations Convention Relating to the Status of Refugees and the 1969
Organisation of African Unity Convention
Governing Specific Aspects
of Refugee Problems in Africa, a person qualifies as a refugee 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; or
(b)
owing to external aggression, occupation, foreign domination or
events seriously disturbing or disrupting public order in either
a
part or the whole of his or her country of origin or nationality, is
compelled to leave his or her place of habitual residence
in order to
seek refuge elsewhere; or
(c)
is a dependant of a person contemplated in paragraph (a) or (b).’
I
may add that in addition to the various formal legal obligations,
South Africa has also committed itself to uphold the Declaration
adopted at the World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance held in Durban in
2001.
The Conference recognised the urgent need to translate the
objectives of the Durban Declaration into a practical and workable
plan.
[5]
[3]
But not every person who flees his or her home in the circumstances
referred to in s 3 of the Act will obtain asylum in this
country. It
is thus important to understand how asylum is sought and comes to be
conferred in terms of our law. According to s
21 of the Act, every
person who wishes to obtain asylum must apply in person to a Refugee
Reception Officer (the Officer) at any
Refugee Reception Office
(RRO). To that end, the Officer must ensure that the application form
is properly completed and where
necessary assist the applicant in
that regard. The Officer may conduct such enquiry as is deemed
necessary in order to verify the
information furnished by the
applicant and, thereafter submit the application together with such
information as may have been obtained
to a Refugee Status
Determination Officer (RSDO). Pending the outcome of that application
the Officer must, in terms of s 22 of
the Act, issue such applicant
with an asylum seeker permit allowing him or her to sojourn in the
Republic temporarily. Until the
issuance of a s 22 permit (also
described as an asylum seeker permit), such person is considered an
illegal foreigner and subject
to apprehension, detention and
deportation in terms of the
Immigration Act 13 of 2002
. Importantly,
in terms of the
Immigration Act, no person
may employ
(s 38)
, or save
for humanitarian assistance and aid, abet, assist, enable or in any
manner help an illegal foreigner
(s 42).
An asylum seeker permit is
thus essential to enable an asylum seeker to live, work and function
in South Africa prior to the determination
of his or her status.
[4]
After having made an application for asylum, an asylum seeker will
usually be obliged to report in person from time to time
to an RRO,
inter alia, to: (a) review his or her asylum seeker permit; (b) be
interviewed by the RSDO
(s 24(1)
and (2)); (c) be informed of the
outcome of the application for refugee status
(s 24(4))
; (d) if
necessary, lodge an appeal against a rejection of the application to
the Refugee Appeal Board (RAB)
(s 26(1))
; (e) attend a hearing of the
RAB
(s 26(3))
; and (f) collect the decision of the RAB. Once a person
satisfies the relevant authorities that he or she qualifies for
refugee
status, asylum will be granted and he or she is deemed a
refugee for the purposes of the Act. Even then, such person’s
refugee
status must be renewed every two years. For that to happen he
or she would be obliged to call in person on an RRO. The asylum
application
process is invariably a protracted one. Timely access to
an RRO is thus critical not just for asylum seekers to legalise their
stay in this country, but also for the effective protection of their
rights. In terms of s 27 of the Act, a refugee has a range
of rights,
including full legal protection, the right to remain in the Republic
and the entitlement to: (a) apply for an immigration
permit, an
identity document and a travel document; and (b) the same basic
health services and primary education which inhabitants
of the
Republic receive from time to time. In practice, however, there are
usually significant obstacles in the path of asylum
seekers and
refugees.
[6]
[5]
As at the beginning of 2011 there were six RROs in the country,
namely Johannesburg, Pretoria, Cape Town, Durban, Musina and
Port
Elizabeth. Since then three of those six – Johannesburg, Port
Elizabeth and Cape Town – have been closed either
completely or
to new applications by the Department of Home Affairs (DHA).
Litigation challenging the lawfulness of each of those
decisions
followed. The Johannesburg High Court (per Legodi J) declared the
decision not to re-establish an RRO in Johannesburg
following upon
the closure of the one located at Crown Mines to be ‘procedurally
unfair and invalid’ and remitted the
matter to the
Director-General of the DHA (the DG) for ‘his or her
reconsideration on the suitability or otherwise of establishing
such
an office in Johannesburg’.
[6]
On 16 February 2012 and at the instance of the Somali Association of
South Africa Eastern Cape and the Project for Conflict
Resolution and
Development (the respondents) the Grahamstown High Court (per
Pickering J) reviewed and set aside the decision to
close the Port
Elizabeth RRO (PE RRO) to new applications ‘without having in
place an alternative RRO within the Nelson Mandela
Bay Municipality’.
Pickering J directed, inter alia, the Minister of Home Affairs (the
Minister), the DG and the Chief Director:
Asylum Seeker Management
(the Chief Director) (collectively referred as the relevant
authorities) to open and maintain a fully
functional RRO ‘to
provide services to asylum seekers and refugees including new
applicants for asylum in the Nelson Mandela
Bay Municipality’.
The learned judge found the decision to be unlawful by reason of the
failure on the part of the DG to
consult with the Standing Committee
for Refugee Affairs (SCRA) established in terms of Section 9 of the
Act. Pickering J accordingly
declined to decide the other grounds of
review sought to be advanced by the respondents. On 14 May 2012 the
learned judge refused
leave to the relevant authorities to appeal and
directed, in terms of rule 49(11) of the Uniform Rules, that pending
the outcome
of any further appeal, his order that a fully functional
RRO be opened and maintained, not be suspended. On 28 August 2012 the
petition by the relevant authorities seeking leave to appeal to this
court was dismissed. That notwithstanding and despite the order
of
Pickering J, the PE RRO has remained closed to new applicants.
[7]
On 29 June 2012 the Cape Town RRO (the CT RRO) was closed to new
applicants for asylum. On 25 July 2012 the Cape High Court
(per Davis
J) granted an interim order, inter alia, directing the relevant
authorities to ensure that a RRO remains open and fully
functional
within the Cape Town Metropolitan Municipality at which new
applicants for asylum can make applications and be issued
with
section 22 permits. And like Pickering J, he too ordered that,
notwithstanding any further application for leave to appeal
and
appeal, and pending the outcome of any such appeal, his order shall
not be suspended. In due course the review application
succeeded
before Rogers J who declared the decision to close the CT RRO to new
applicants for asylum unlawful, and directed the
relevant authorities
to ensure that an RRO is open and fully functional within the Cape
Town Metropolitan Municipality. This Court
dismissed an appeal by the
relevant authorities against the order reviewing and setting aside
the decision to close the CT RRO.
It declined, however, to endorse
the conclusion by the high court compelling them to reopen the CT RRO
(
Minister of Home Affairs and others v
Scalabrini Centre and others
2013 (6)
SA 421
(SCA) paras 73-79).
[8]
According to s 8 of the Act, the DG may establish as many RROs in the
Republic as he or she, after consultation with SCRA, regards
as
necessary for the purposes of the Act. It thus followed, as was
accepted by the relevant authorities before Pickering J, that
the DG
would likewise have been under an obligation to consult with SCRA
when deciding to close those offices. Indeed, in seeking
leave to
appeal from Pickering J, the relevant authorities did not contest the
finding that the decision to close the PE RRO was
unlawful. Rather,
it was only the order directing that a fully functional RRO be opened
and maintained that was sought to be assailed.
[9]
During June 2012 and following upon the judgment of Pickering J, the
respondents’ attorneys, Lawyers for Human Rights
(LHR),
addressed two letters to the State Attorney regarding the evident
failure on the part of the relevant authorities to comply
with the
order of the learned judge. The response those letters elicited was
‘we still await instructions from client in
response to your
concerns’. On 31 August 2012 LHR once again wrote to various
officials in the DHA, as also the State Attorney:
‘
1.
We are attaching the Order of Court handed down by the Supreme Court
of Appeal on Tuesday 28 August 2012 dismissing leave to
appeal the
judgment of Pickering, J. of the Eastern Cape High Court regarding
the closure of the Port Elizabeth Refugee Reception
Office. A copy of
the SCA order of court is attached hereto as Annexure “A”.
. . .
2.
We trust that the Department of Home Affairs will now take immediate
steps to comply with the order of Pickering J. Kindly inform
us of
the steps which the Department has taken and will take to implement
the order of the High Court.’
When
that letter failed to elicit a response LHR once again wrote on 6
September 2012:
‘
2.
The Department has not responded with what steps it intends to take
to comply with the judgment of Pickering J of the Eastern
Cape High
Court regarding the Port Elizabeth Refugee Reception Office (PE RRO).
3.
We require a response from you by no later than the
end of
business on Friday 7 September 2012
failing which we will have no
option but to assume that you have no intention of complying with the
order of court and are therefore
in contempt of that order.
4.
Our clients reserve the right to approach the High Court for
appropriate relief, including an appropriate order as to the costs
of
that application.’
That
letter as well failed to elicit a response. Instead, on 16 September
2012 the Provincial Manager: Eastern Cape DHA, Mr Mabulu,
notified
‘various stakeholders’ by e-mail:
‘
As
you are aware, the failure on our part, as the Department, to consult
with the Standing Committee for Refugees (“SCRA”),
in
respect of the compelling circumstances to close the PE RRO,
inadvertently, invited an adverse Court ruling against our
irrevocable
decision.
For
this reason, the Director-General, Mr. Mkhuseli Apleni, then,
undertook to meet with SCRA, on 30 May 2012, at which the various
challenges, relating to the nuisance caused to the surrounding
Business community, and leading to the Eviction Orders, and the
refusal of the Landlord to renew the Lease Agreement were discussed.
All of this was discussed, it must be noted, within the context
of
the many Court challenges against further operations of the PE RRO in
the area, under question.
SCRA,
having satisfied oneself with the casual factors of the compelling
closure, then, consented. For this reason, kindly, be informed
that
the PE RRO is closed, and, all, the arrangements that were made to
assist Asylum Seekers, and recognised Refugees shall remain
in place,
until the finalization of, all, outstanding adjudications.’
[10]
LHR sought, in the light of that email, to press the relevant
authorities to comply with the order of Pickering J and accordingly
wrote on 17 September 2012:
‘
2.
It appears clear from the e-mail that the Department is intent on
persisting with its refusal to reopen the Port Elizabeth Refugee
Reception Office to new applicants, despite this being required by
the order of the Eastern Cape High Court. It therefore appears
that
the Minister, the Director-General, and the Chief Director: Asylum
Management are in contempt of court.’
Finally,
on 21 September 2012 the DG, Mr Mkuseli Apleni, responded:
‘
I
am responding on behalf of all the departmental addressees.
As
you know, the judgment of the Court in this matter was based on the
fact that the provisions of
section 8(1)
of the
Refugees Act 130 of
1998
were not complied with when the decision to close the Port
Elizabeth Refugee Reception Office (“PERRO”) was taken.
That
error has now been rectified. I have,
inter alia
, consulted
with the Standing Committee for Refugee Affairs in terms of the said
section 8(1)
and taken a new decision to close the PERRO.
In
the circumstances, the court order of 16 February 2012 has been
overtaken by events. As you know, outstanding applications for
asylum
are still being attended to.
The
Minister, the Department, officials of the Department and I are
therefore not in contempt of court.
Trusting
that the above explanation deals with your enquiry and concerns.’
[11]
The disclosure that a new decision had been taken, prompted the
respondents, to once again approach the Eastern Cape High Court.
Their application succeeded before Eksteen J, who, on 20 June 2013,
issued the following order:
‘
1.
The second respondent’s decision, taken on 30 May 2012, to
close the Port Elizabeth Refugee Reception Office to new applicants
for asylum is declared unlawful and is set aside.
2.
The first to third respondents are directed to ensure that by 1
October 2013 a Refugee Reception Office is open and fully functional
within the Nelson Mandela Metropolitan Municipality at which new
applicants for asylum can make applications for asylum in terms
of
section 21
of the
Refugees Act 130 of 1998
and be issued with permits
in terms of
section 22
of the said Act
3.
During the week commencing Monday 24 June 2013, and again during the
week commencing Monday 22 July 2013, the second respondent
or his
duly appointed representative shall furnish a written report to the
applicants’ attorneys summarising the steps taken
by the
Department of Home Affairs up to the date of the report to give
effect to para (2) of this order; giving the second respondent’s
assessment as to whether he expects there to be compliance with the
said para (2) by 1 October 2013; and, if the second respondent’s
assessment is that there will not be compliance by that date, giving
the second respondent’s best estimate of the date by
which
there will be compliance.’
Eksteen
J granted leave to the relevant authorities to appeal to this Court
against his judgment and order. SCRA and the Minister
of Public Works
were also cited as the fourth and fifth respondents respectively but
no relief was sought against them. They accordingly
took no part in
the proceedings either in the court below or in this Court.
[12]
According to the DG, Mr Mkhuseli Apleni:
‘
4.3
In the Department’s view, the most operationally strategic and
convenient places to locate RROs are points of entry utilised
by
those entering the country. Port Elizabeth is not such a point of
entry. The records held at the PERRO clearly indicate that
those
applying for asylum in Port Elizabeth hail from China, Pakistan,
Bangladesh, Somalia, Ethiopia, and so forth. None of these
applicants
use Port Elizabeth as a port of entry.
.
. .
97.6
This strategy underlies the decision to establish RROs as close as
possible to ports of entry, whilst still giving applicants
for asylum
unrestricted rights of travel and residence in any part of the
country. We came to the conclusion that establishing
RROs nearer
ports of entry would go a long way to achieving these objectives.’
Mr
Apleni added:
‘
96.3
I admit that the exercise of the power afforded in
section 8(1)
of
the
Refugees Act is
constrained by the principle of legality. I have
submitted in various parts of this affidavit that consequent on the
court order
of 16 February 2012, I remedied the failure to act in
accordance with the terms of
section 8(1)
of the
Refugees Act. I
have
now taken a new, rational and lawful decision as required in law, to
close the PERRO.’
Significantly,
although there are several similar references in the rather detailed
affidavit deposed to by him, nowhere does he
state precisely when the
new decision was taken.
[13]
In a confirmatory affidavit, Mr Karl Sloth-Nielsen, the chairperson
of SCRA, stated:
‘
18.
Having discussed these matters and related matters as is apparent
from the Minutes of that meeting, we agreed with the
Director-General’s
reasoning. We advised that we would not take
issue with the decision he sought to take in that regard. It was only
once our discussions
were concluded that the Director-General took a
fresh decision to close the PE RRO. I left that meeting knowing what
the new decision
was . . .’
And
yet, somewhat surprisingly given the earlier correspondence from LHR
urging compliance with the order of Pickering J, the first
intimation
that a new decision had in fact been taken was when Mr Apleni wrote
to LHR some four months later on 21 September 2012.
In an affidavit
filed with this court in support of the application for leave to
appeal against the judgment of Pickering J, Mr
Apleni stated:
‘
For
completeness’ sake and in the interests of openness, I wish to
disclose that I have since consulted with the Standing
Committee, who
have approved of the closure of,
inter
alia
, the Port Elizabeth Refugee
Reception Office.’
Mr
Apleni deposed to that affidavit on 4 June 2012. If indeed, as Mr
Sloth-Nielsen suggests, a new decision had been taken at the
meeting
with SCRA on 30 May 2012, Mr Apleni’s pointed failure to
disclose that to this Court was the very antithesis of his
professed
assertions of ‘completeness’ and ‘openness’.
For, that a new decision had been taken would, in
my view, have
rendered academic the application for leave to appeal to this Court.
That could hardly have been lost on Mr Apleni.
In my view he was
obliged to disclose to this Court that he had already taken a new
decision and disingenuously failed to do so.
We were however urged by
counsel for the relevant authorities to approach the matter on the
basis that the new decision, the subject
of this appeal, was taken on
30 May 2012.
[14]
The respondents accepted that in the light of this Court’s
judgment in
Scalabrini
we
would be bound to find that the DG’s decision constitutes
executive action. And it also came to be accepted on behalf of
the
relevant authorities that the assessment of the number and location
of RROs for the purposes of processing applications by
asylum seekers
and refugees is constrained by the principle of legality. The broad
thrust of the respondents’ case is that
the decision of the DG
fell short of constitutional legality for want of: (a) consultation
with interested parties; and, (b) rationality.
Each of those
contentions will be considered in turn.
[15]
If Mr Apleni’s new decision was indeed taken on 30 May 2012, as
urged upon us, then there was (as counsel for the relevant
authorities accepted) no consultation with interested parties prior
to that decision being taken. The closest that one comes to
any
reference to a consultation is the following in Mr Apleni’s
affidavit:
‘
99.4
Similarly, once the consultation with the SCRA had taken place, the
Department thought it appropriate to convene a meeting
with
interested parties and explain how applications for asylum would be
dealt with in the future. This meeting was held on 26
July 2012 as a
courtesy to those members of the public who wished to receive an
update on matters affecting the PERRO. . .’
But
that meeting, even if it could pass as a ‘consultation’
[7]
in the true sense of that word, hardly assists the relevant
authorities because it occurred after 30 May 2012. There was,
however,
a further string to counsel’s bow. It was this: fresh
consultations were unnecessary inasmuch as Mr Apleni had already
consulted
with interested parties prior to him taking his first
decision to close the PE RRO. On the assumption that such a
proposition is
a tenable one (the correctness of which appears to me
to be doubtful but which I need not here decide) I do not believe
that it
is supported by the facts. Mr Michael Collin Bendle, a
director of the second respondent, the Project for Conflict
Resolution
and Development, stated:
’
72.
In June 2011, a meeting of stakeholders was called by employees of
the second respondent working at the PE RRO, which meeting
I
attended. We were informed that the lease of the PE RRO premises was
set to expire on 30 November 2011 and that the Department
was in the
process of finding alternative office space. The attendees at the
meeting were advised of three potential sites to which
the PE RRO may
be moved. We were invited to visit the sites and see if they were
suitable for a refugee reception office.
73.
No mention was made at the time that there would be a permanent
closure of refugee services in Port Elizabeth. In addition,
no
mention was made of the Department’s intention to cease
services for new applicants for asylum at the new office.
74.
We were invited to a meeting on 17 October 2011 but the meeting was
cancelled by a Mr. Baxter who works at the refugee reception
office.
We were not told what the meeting would be about, but only that it
would be rescheduled for another day.
75.
There was no further communication from the respondents until 20
October 2011 when a notice was posted on the gate outside the
PE RRO
which stated that services for new applicants would cease the
following day on 21 October 2011. A copy of this notice is
attached
hereto as Annexure MB26.’
The
response from Mr Apleni was:
‘
100.1
When the meeting referred to in the paragraphs under reply was
called, no decision had at that stage been taken to close the
PERRO
in respect of the lodgement of new applications for asylum.
100.2
The steps that were taken were at the initiative of the officials at
the PERRO.
100.
It is correct that what was communicated to the officials of the
PERRO was the impression that I was labouring under, that
is that the
continuance of services to applicants for asylum whose applications
had already been lodged did not constitute a dis-establishment
of the
PERRO. This Court took a different view of the decision and I have
accepted its interpretation that the effect of the decision
was to
discontinue a material portion of the services rendered by the PERRO,
thereby effectively dis-establishing the office.
100.4
The meeting that was cancelled by Mr. Baxter was reconvened on 20
October 2011.
101.
The allegations made in the paragraph under reply are admitted.
[16]
Mr Bendle further stated:
‘
77.
In an attempt to resolve the immediate situation, a meeting was
arranged on 20 October 2011 with Ms Sonto Lusu, the acting provincial
manager for the Department of Home Affairs in the Eastern Cape with a
number of stakeholders, including the applicants. At this
meeting, Ms
Lusu informed us for the first time that the PE RRO was scheduled to
close permanently on 30 November 2011, and that
no new asylum
applications would be processed with effect from 21 October 2011.
78.
We were also provided with a copy of the directive from the second
respondent, the Director-General of Home Affairs Mr Mkuseli
Apleni,
dated 7 October 2011, confirming the permanent closure of the PE RRO.
A copy of this letter is attached hereto as Annexure
MB27.
79.
In the meeting we raised our concerns about the closure of the
office, particularly under such notice, and sought an extension
of
the closure dates in order to engage with the Department about the
decision.
80.
Ms Lusu was adamant that the dates would stand but nevertheless
undertook to discuss it with the Director-General whom she indicated
she was scheduled to meet in Cape Town the following day. She also
gave an undertaking to revert to stakeholders by 12h00 the following
day.
81.
On 21 October 2011, attorneys at the Nelson Mandela Metropolitan
University (“NMMU”) Refugee Rights Centre received
telephonic confirmation from Ms Lusu that the decision as contained
in the letter from the Director-General was “cast in
stone”
and that the Department would not change the decision. Later that
day, a letter of demand was sent by our attorneys,
Lawyers for Human
Rights (“LHR”), to the respondents in which our concerns
were clearly described and the unlawful
nature of the closure was put
to the respondents. A copy of that letter is attached as Annexure
MB28.
82.
LHR received two requests for indulgences from the head of legal
services, Mr S Mogotsi, to allow the first and second respondents
time to respond to the letter of demand, which requests were granted.
However, no such response was ever received.
83.
We continued to try to engage with the Department but to no avail. On
9 November 2011, when it became clear that the first and
second
respondents had no intention of responding to the letter of demand, a
further letter was sent to them by LHR confirming
our intentions to
approach a court to adjudicate this matter. This letter is attached
hereto as Annexure MB29.
84.
On 16 November 2011, the NMMU Refugee Rights Centre attended a
stakeholders meeting in Grahamstown where Mr Lucas, the Centre
Manager, informed the attendees that the PE RRO was closing
permanently.’
Mr
Apleni’s response was:
‘
103.
I admit the allegations made in the paragraphs under reply.’
He
added:
‘
97.14
With regard to the first decision to close the PERRO, I ensured that
the Department consulted with stakeholders at the meeting
of 20
October 2011. After considering the inputs made, I weighed those
against the factors that I have explained underpinned the
rationale
for the decision to close. I elected to go ahead with the closure of
the PERRO.
That
appears to be the high water mark of the relevant authorities’
case.
But by that stage the decision
to close had already been taken. That is confirmed by the directive
issued by Mr Apleni on 7 October
2011 headed ‘Closure of the
Port Elizabeth Refugee Reception Office’, which reads:
‘
You
are hereby officially notified that the Port Elizabeth Refugee
Reception Office will be permanently closed as from 30 November
2011.’
It
must follow that here as well to the extent that Mr Apleni can point
at all to any consultation, such consultation occurred after
the
decision had already been taken.
[17]
In the event, counsel for the relevant authorities was driven to
contend that the DG (Mr Apleni) was not obliged to consult
with
interested parties. In that regard, not entirely consistent with what
had elsewhere been stated by him, Mr Apleni asserted:
‘
99.1
I deny that there was a legal obligation to consult with affected
parties or their known representatives prior to taking the
decision
to close the PERRO to new applicants for asylum.
.
. .
102.1
I have stated earlier in this affidavit that there was no obligation
arising from
section 8(1)
of the
Refugees Act for
me to consult
interested parties about the decision that I had taken.
102.2
I also pointed out that in any event those who had submitted
applications for asylum before the decision was taken had no
cause to
complain as the decision taken did not affect those applications.
102.3
. . . I could hardly be expected to consult with unknown future new
applicants regarding their access to the PERRO.’
I
accept, as Nugent JA did (
Scalabrini
para 72), that a duty to
consult will arise only in circumstances where it would be irrational
to take a decision without such consultation,
because of the special
knowledge of the person or organisation to be consulted. The relevant
authorities were aware that the respondents
had close links to
refugee communities and experience and expertise in dealing, not just
with asylum seekers in Port Elizabeth,
but also with the challenges
that confronted them. That was acknowledged, implicitly at least,
when they were invited to a stakeholders
meeting during June 2011.
But that meeting was a charade and positively misleading as to the
intentions of the relevant authorities.
What is worse, is that after
having lulled the respondents into a false sense of security as to
the continued operation of the
PE RRO, it was suddenly sprung on them
on 20 October 2011 that a decision had already been taken by Mr
Apleni on 9 October 2011
to close the PE RRO to new applications with
effect from 21 October 2011. That was, to borrow from Nugent JA
(
Scalabrini
para 70), ‘inconsistent with the
responsiveness, participation and transparency that must govern
public administration’.
In
Scalabrini
(para 71), Nugent
JA endorsed what Rogers J had to say, namely:
‘
In
assessing the rationality of the process followed by the DG, it is
important to remind oneself that consultation with the NGOs
would not
have been a new or alien process for the DG. He recognised them as
stakeholders and apparently did in general consult
with them on
important developments. At the meeting of 7 May 2012 the [DHA] said
that there would be further consultation with
stakeholders if efforts
to remain at the Maitland premises failed. This renders all the more
inexplicable the DG’s failure
to do so.’
It
must follow that Mr Apleni’s failure to consult with the
respondents when deciding whether to close the PE RRO was not
founded
on reason and was arbitrary and thus unlawful.
[18]
That conclusion ought, ordinarily at any rate, to dispose of the
matter. But it may nonetheless be desirable, particularly
when regard
is had to the remedy sought by the respondents in this matter (to
which I turn in due course), for a view to be expressed
on their
other challenge (
S v Jordaan
[2002] ZACC 22
;
2002
(6) SA 642
(CC) para 21). It is well established that an incident of
legality is rational decision-making. It is a requirement of the rule
of law that the exercise of public power should not be arbitrary. It
follows that decisions must be rationally related to the purpose
for
which the power was given. (See
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa
2002 (2) SA
674
(CC) para 85.) But, as Nugent JA pointed out (
Scalabrini
para 65): ‘rationality can be a
slippery path that might easily take one inadvertently into assessing
whether the decision
was one the court considers to be reasonable. .
. . [R]ationality entails that the decision is founded upon reason –
in contradistinction
to one that is arbitrary – which is
different to whether it was reasonably made.’
[19]
According to Mr Apleni the DHA had decided to embark upon a new
strategic direction namely to ‘close some relatively
marginal
(in comparative terms) urban based RROs’ such as the PE RRO and
to establish ‘a new refugee reception office
at the Lebombo
border post to replace the closed PE RRO’, which would be ‘used
by refugees from all over South Africa
that would apply for asylum at
[that] Port of Entry’. The evidence thus reveals that: the PE
RRO was considered to be closed
and defunct by the DHA; the DHA
proposed to have the new Lebombo RRO operational from 1 April
2012;
[8]
funds for the
relocation to Lebombo would be obtained from the savings from the
lease agreement for the PE office; the budget
for the Lebombo RRO
would be in line with the PE budget; the staff required for the
Lebombo RRO ‘would be aligned to the
non-operational Port
Elizabeth RRO’; and, the ‘capital budget for the project
would be secured from the R110 million
special allocation for the
2012/2013 financial year’.
[20]
By way of two separate applications, the respondents sought leave to
place new evidence before this Court. In neither instance
were the
facts disputed or the applications opposed by the relevant
authorities. I am satisfied that they are material and sufficiently
weighty and that in respect of each, the threshold set for admission
at this stage of the proceedings has been met (
Rail
Commuters Action Group & others v Transnet Ltd t/a Metrorail &
others
[2004] ZACC 20
;
2005 (2) SA 359
(CC) paras
40-43).
[21]
In an affidavit in support of the first application, Mr Bendle
stated:
‘
3.
. . . The respondents seek to place before this Court evidence of the
recent disclosure by the first appellant, the Minister
of Home
Affairs (“the Minister”) in Parliament that there will
not be a new Refugee Reception Office (“RRO”)
established
at the border-post in Lebombo, Mpumalanga.
4.
The disclosure was made by the Minister in April 2014, in reply to an
internal Parliamentary question. The question and reply
were
published online by the Parliamentary Monitoring Group, and came to
the respondents’ attention on 25 April 2014. . .
It indicates
that the following questions and reply were exchanged between Mr De
Freitas of the Democratic Alliance and the Minister:
“
Mr
M S DE Freitas (DA) to ask the Minister of Home Affairs:
Whether
her department will be establishing a refugee reception office at
Lebombo in Mpumalanga; if so, (a) what is the cost for
the (i)
establishment and (ii) running of this office, (b) in each case, (i)
what consultations have taken place and (ii) with
whom, (c) what
progress has been made to date and (d) when will the specified office
(i) open and (ii) be functional?
.
. .
Reply:
No.”
9.
The evidence of the fact that an RRO will not be established at
Lebombo is fundamental to the merits of the review that is the
subject of this appeal. The review concerns the decision of the
second appellant, the Director-General of the Department of Home
Affairs (“the Director-General”), to close the PE Refugee
Reception Office (“PE RRO”). One of the principal
justifications given by the Director-General for his decision to
close the PE RRO was the establishment of a replacement RRO in
Lebombo.
11.
In light of the new evidence, the respondents contend that the
Director-General’s decision to close the PE RRO is reviewable
and falls to be set aside for material mistake of fact and
irrationality under the doctrine of legality.’
Mr
Apleni’s response was:
‘
11.
I have been advised and verily believe, that Respondents’
interpretation and use of the evidence sought to be introduced,
is
misconceived. As explained below, the parliamentary questions and
answers thereto, must be understood within the context of
parliamentary custom, protocol and language. Applying parliamentary
custom, protocol and language and bearing in mind the time
the
question was posed, it was understood by the Minister, the Department
and me, as meaning whether or not it was anticipated
that the RRO in
Lebombo would be opened during the forthcoming financial year.
12.
Since it was not anticipated that the Lebombo RRO would be opened
within the forthcoming financial year, the Minister correctly
answered the question in the negative.
13.
As set out below, this does not, however, mean that the Minister and
the Department are not proceeding with their plans to establish
an
RRO at Lebombo at all. On the contrary, those plans are still
progressing. Indeed, an appropriate site has now been identified
and
a tender for the provision of temporary structures at Lebombo, has
already been awarded.
14.
Consequently, the Respondents’ contention that a new RRO will
not be established in Lebombo soon or at all, is not correct.
.
. .
16.
The opening of an RRO in Lebombo was consequently, a relevant
consideration when I decided not to re-open the PE RRO and it
was
therefore not an error on my part to take this factor into
consideration.
.
. .
17.
The parliamentary questions were posed to the Minister in the
National Assembly on 14 March 2014, for a written reply.
18.
Before the Minister gave her reply, the questions were circulated
amongst the relevant functionaries in the Department for their
consideration, including myself.
19.
I considered the questions and provided my input in relation to a
draft response. I approved the response. . .
20.
In determining the appropriate response, the Minister and relevant
functionaries, including myself, took into account the fact
that the
questions were a parliamentary questions. In this regard, the
relevant functionaries, having regard to parliamentary protocol
and
custom and the specific manner in which questions are asked and
answered in the National Assembly, interpreted the primary
question
to be whether an RRO would be opening in Lebombo during the
forthcoming financial year.
21.
Consistent with the answer given by the Minister, the Lebombo RRO
will not as a matter of fact be opening in the forthcoming
financial
year, since the Department has not been allocated the necessary
funding from Treasury to construct the RRO.
22.
The Department’s targets are required to comply with the
“SMART” principles advanced by the Auditor General:
they
must be Specific, Measurable, Attainable, Realistic and Time-bound.
At the time the parliamentary question was asked, the
establishment
of the Lebombo RRO did not satisfy these requirements, particularly,
in relation to the anticipated time-frame for
the construction of the
RRO.
23.
Taking these factors into account, the Department and Minister
determined that the Minister was not in a position to answer
the
primary question in the affirmative.
24.
Indeed, a positive answer to the primary question would have implied
that the Department would finalise matters such as the
costing and
timelines for the establishment of the Lebombo RRO, within the
forthcoming financial year. Since these matters were
not, however,
finalised, the Minister was not therefore, in a position to provide
these subsidiary answers.
25.
The Minister consequently correctly answered in the negative. I
appreciate that the negative answer is capable of being interpreted
that the Department does not intend to open an RRO in Lebombo and
that this option was
off
the table
so
to speak. This was, however, not the intention of the response. As
set out above, the Minister intended to convey the position
that the
Lebombo RRO would not be opening during the forthcoming financial
year.
[22]
That such a response is adduced by a senior official - under oath no
less - beggars belief. How the question asked of the Minister
in
Parliament could have been construed as Mr Apleni does, is logically
incomprehensible. Syntactically, the primary question seeks
to
ascertain whether the DHA will be establishing an RRO at Lebombo. It
is an enquiry directed at a future state of affairs. It,
as well, in
the subsidiary questions, seeks clarity as to consultations and
progress that has already taken place namely, a past
state of
affairs. It is thus difficult to appreciate how the question could
have been construed as meaning whether Lebombo ‘would
be
opening during the forthcoming financial year’. The question
plainly did not seek to ascertain whether the Lebombo RRO
would be
opening during the course of that financial year. How it could have
been understood as such is thus lost on me. That those
were
parliamentary questions could hardly have altered the meaning of the
question. If anything, it seems to me, that our constitutional
model
sets fairly exacting standards for Cabinet Ministers particularly in
their interaction with Parliament.
According
to s 1 of the Constitution, the Republic of South Africa is ‘one,
sovereign, democratic state’ founded, inter
alia, on ‘a
multi-party system of democratic government, to ensure
accountability, responsiveness and openness’. In
Coetzee
v Government of the Republic of South Africa, Matiso and Others v
Commanding Officer Port Elizabeth Prison and Others
[1995] ZACC 7
;
1995 (4) SA 631
(CC) at 637D, albeit with reference to the Interim
Constitution, Sachs J observed:
‘
The
values that must suffuse the whole process are derived from the
concept of an open and democratic society based on freedom and
equality . . . The notion of an open and democratic society is thus
not merely aspirational or decorative, it is normative, furnishing
the matrix of ideals within which we work, the source from which . .
. [we derive] the principles and rules . . . [we apply], and
the
final measure . . . [we use] for testing the legitimacy of impugned
norms and conduct.’
[23]
Questions addressed by opposition parties to the Executive and Organs
of State (see s 239 of the Constitution) serve as an
important
mechanism at the disposal of Parliament for exercising oversight and
holding the executive and organs of state to account
(s 55 of the
Constitution). And, in terms of s 92(2) of the Constitution,
Cabinet Members are collectively, individually
and directly
accountable to Parliament for the exercise of their powers and the
performance of their functions. Moreover, s 13
of the Powers,
Privileges and Immunities of Parliament and Provincial Legislatures
Act 4 of 2004 makes a member, which by definition
includes a Minister
or Deputy Minister (s 1), guilty of contempt of Parliament if such
member, inter alia, commits an act mentioned
in section 17(1)
(e)
.
Section 17(1)
(e)
,
in turn, provides that ‘[a] person . . . [who] wilfully
furnishes a House or committee with information, or makes a statement
before it, which is false or misleading, commits an offence and is
liable to a fine or to imprisonment for a period not exceeding
two
years or to both the fine and imprisonment.’ Further,
consistent with the National Assembly’s constitutional
responsibility
to ‘provide for mechanisms to ensure that all
executive organs of State in the national sphere of government are
accountable
to it’, the Rules of the National Assembly includes
specific procedures for the questioning of Ministers, the Deputy
President
and the President (rules 109-111). There is, as well, the
Executive Ethics Code,
[9]
which
not just re-affirms our commitment to the ‘promotion of an
open, democratic and accountable government’ (s 2.2),
but also
provides that Members of the Executive may not ‘wilfully
mislead the legislature to which they are accountable’
(s
2.3(a)). Tellingly, in England,
Ministers
who knowingly mislead Parliament are expected to offer their
resignation to the Prime Minister
[10]
and
such an offence might also be proceeded against as a contempt.
[24]
As De Vos and Freedman explain:
[11]
‘
Accountability
is the hallmark of modern democratic governance and implies that
members of the executive have to explain their actions
to Parliament
and its committees so that Parliament can play a role in checking the
exercise of power by members of the executive.’
They
add:
.
. . accountability requires the establishment of institutional
arrangements to effect democratic control over the executive as
members of the executive, unlike the MPs, are not directly
democratically elected.’
(See
also
Democratic Alliance and Another v
Masondo NO and Another
[2002] ZACC 28
;
2003 (2) SA 413
(CC) paras 42 and 43.)
Against that
backdrop it is difficult to understand why the fact that the
questions were parliamentary questions somehow gave them
a different
hue. Nor can I fathom what ‘parliamentary protocol and custom’
Mr Apleni has in mind, or how parliamentary
language could possibly
have caused the response to change from the affirmative (as it ought
to have been) to its exact opposite.
That notwithstanding, I am
willing to approach the matter, as Mr Apleni would have us, on the
basis that the relevant authorities
have every intention of
proceeding with the establishment of the Lebombo RRO. For, it
seems to me, that even approached thus,
the decision to close the PE
RRO still suffers a want of rationality.
[25]
When the decision to close the PE RRO was taken, it was in the belief
that the Lebombo RRO would be operational in April 2012.
In that, the
relevant authorities were overly optimistic. Mr Apleni now states (in
his answering affidavit in response to the respondents
application to
adduce new evidence):
‘
34.
The Department hopes to have the temporary structures in place and
operational by February 2016. The erection of the temporary
facilities will commence once the Department receives the necessary
authorisation from Treasury and the relevant zoning procedures
have
been complied with. As set out in my letter to the Department of Home
Affairs of 13 June 2014 (annexure MH3), I have requested
the DPW to
confirm the current zoning of the site as well as how soon can the
Department take occupation. Once all of the aforesaid
matters have
been addressed, the erection of the temporary facilities will take
approximately one month.’
If
the Lebombo RRO is set up by February next year (and of that, given
the history of the matter, there is at this stage no certainty)
it
would mean that Mr Apleni’s initial estimation was off by
approximately four years. As the following excerpts from Mr
Apleni’s
affidavit reveal, the decision to close the PE RRO was ostensibly
taken to assist asylum seekers:
‘
97.5
The larger strategic issue for the Department was finding strategies
for dealing with corruption within its own ranks, the
safety of
asylum seekers as they travelled inland from ports of entry, and the
preservation of their dignity and sense of security
in ensuring that
they were able to renew their permits without having to fork out one
cent in extortion money.
97.11
The inadequacy of staff in the busier RROs, the long queues that
result in applications not being attended to on the day that
an
applicant presents him or herself at an RRO, the high number of files
that the SCRA returns to the RSDO due to the incompleteness
of the
file or interview with the RSDO – all these are matters that
have been regular items of discussion between the Deputy
Minister,
the members of SCRA and me.’
Implicit
in that must be an acceptance that Mr Apleni believed that the
establishment of the Lebombo RRO, which was inextricably
linked to
the closure of the PE RRO, would satisfy our obligations to asylum
seekers as required by the Act and Constitution. That
being so, it
can hardly be imagined that the decision to close the PE RRO would
have been taken by Mr Apleni when he did had he
known then that
Lebombo would only be operational at the earliest in February 2016.
It must follow that the DG’s decision
to close the PE RRO
had been made in ignorance of the true facts material to that
decision (see
Pepcor Retirement Fund &
another v Financial Services Board & another
2003
(6) SA 38
(SCA) paras 47 and 48;
Dumani
v Nair & another
2013 (2) SA 274
(SCA) para 32).
[26]
That conclusion brings into sharp focus the question of remedy. As it
was put in
Tswelopele Non-Profit Organisation and Others v City of
Tshwane Metropolitan Municipality & others
2007 (6) SA 511
(SCA) para 17:
‘
.
. . though the Constitution speaks through its norms and principles,
it acts through the relief granted under it. And if the Constitution
is to be more than merely rhetoric, cases such as this demand an
effective remedy, since (in the oft-cited words of Ackermann J
in
Fose v Minister of Safety and Security
)
“without effective remedies for breach, the values underlying
and the right entrenched in the Constitution cannot properly
be
upheld or enhanced”:’ (Footnotes omitted.)
Courts,
as Harms JA observed, should not be overawed by practical
problems.
[12]
He
added:
‘
[t]hey
should “attempt to synchronise the real world with the ideal
construct of a constitutional world” and they have
a duty to
mould an order that will provide effective relief to those affected
by a constitutional breach.
Fose v
Minister of Safety and Security
held
that -
“
(a)
ppropriate
relief will in essence be relief that is required to protect and
enforce the Constitution. Depending on the circumstances
of each
particular case the relief may be a declaration of rights, an
interdict, a
mandamus
or such other relief as may be required to ensure that the rights
enshrined in the Constitution are protected and enforced. If
it is
necessary to do so, the courts may even have to fashion new remedies
to secure the protection and enforcement of these all-important
rights.
.
. .
I
have no doubt that this Court has a particular duty to ensure that,
within the bounds of the Constitution, effective relief be
granted
for the infringement of any of the rights entrenched in it. In our
context an appropriate remedy must mean an effective
remedy, for
without effective remedies for breach, the values underlying and the
right entrenched in the Constitution cannot properly
be upheld or
enhanced. Particularly in a country where so few have the means to
enforce their rights through the courts, it is
essential that on
those occasions when the legal process does establish that an
infringement of an entrenched right has occurred,
it be effectively
vindicated. The courts have a particular responsibility in this
regard and are obliged to ‘forge new tools’
and shape
innovative remedies, if needs be, to achieve this goal.”’
(Footnotes omitted.)
Harms
JA added ‘what “effective relief” entails will
obviously differ from case to case.’
[27]
To be sure, courts proceed on the assumption that other arms of State
will take prompt and competent steps to comply with its
orders and
that further judicial supervision will not be necessary. Moreover,
there
may be a myriad options available to government and it is usually
given the flexibility and discretion in selecting the means
by which
its obligations can best be met.
Roach
and Budlender
[13]
point out
that:
‘
complex
remedial issues raise difficult questions implicating the separation
of powers and the appropriate roles of the judiciary,
the executive
and the legislature. Relief that requires the state to take positive
actions . . . raises polycentric issues that
affect multiple parties
and budgetary priorities. Yet . . . it is significant that both South
African and Canadian courts have
decided that on-going structural
relief is appropriate in some instances, a conclusion that has also
been reached by other courts,
most notably India and the United
States’.
(Footnote
omitted.)
In
Minister of Health v Treatment Action
Campaign (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC)
(
TAC No
2)
para 98, the Constitutional Court made clear that whilst there are no
bright lines separating judicial, executive and legislative
functions
from each other, there are certain matters that fall pre-eminently
within the domain of one or other of the arms of government.
And
whilst all arms of government should be sensitive to and respect this
separation of powers, this did not mean that courts cannot
or should
not make orders that have an impact on policy. In short, therefore,
the approach by a court needs to be flexible and
responsive to the
needs of a given case.
[28]
The relevant authorities attempt to downplay the significance of the
decision to close the PE RRO, contending its closure,
coupled with
the closure of the two other RROs gives rise to what it describes as
‘inconvenience’ for asylum-seekers.
But that may well be
to trivialise the vulnerability and desperate circumstances of many
asylum seekers in the country. It does
not appear to be disputed that
most asylum seekers, who have been forced to flee their countries of
origin, would in all likelihood
have exhausted their financial
resources and other means after having travelled considerable
distances to reach South Africa. As
a result, many join family,
acquaintances and communities that are already established and who
are able to help support them on
arrival. If those communities are
established in a particular geographic area of the country, such as
the Eastern Cape, it goes
without saying that that is where such
persons will head. The suggestion by the relevant authorities
therefore that asylum seekers
freely choose to live and work in Port
Elizabeth or the Eastern Cape and can likewise freely choose to live
and work near one of
the remaining RROs, is untenable. Fran Ansley
makes the point that ‘[t]he building of social and economic
capital and networks
through a thicket of relationships and channels
that are fusing immigrants into society in ways that already appear
impossible
to undo’.
[14]
[29]
Moreover, the relevant authorities expressly accept that the effect
of their decision is that a person wishing to apply for
asylum can
now only apply to one of the three remaining RROs. Such person will,
no doubt, have to return to that RRO in order,
inter alia, to: have
their interview conducted; their permit renewed; collect their
decision; and, if necessary, lodge and have
their appeal determined.
The consequence is that such asylum seeker will now have to
repeatedly and perhaps frequently travel a
considerable distance to
one of the three remaining RROs over a period of many months or
years. For those who live and work in
Port Elizabeth the closest RRO
will now be the one in Durban, some 900km away. Travelling and
accommodation costs are likely to
be substantial – for many,
resources that they simply do not have. Throw into the mix the
elderly or infirm and parents of
small children (who would probably
have to make alternative child-care arrangements), for whom
undertaking an extended journey
to an RRO situated far away from the
support structures of their communities and families may prove
well-nigh impossible. Repeated
visits to a distant RRO also have the
potential to jeopardise the employment and job security of an asylum
seeker. And given the
admitted backlogs and failing systems at the
remaining RROs, even those asylum seekers who manage to attend are at
risk of not
obtaining the assistance and protection that they
require.
[30]
It is important to stress that this case is not and has never been
about an attempt to compel the DG to establish a new RRO
where one
has never existed previously. It concerns the lawfulness of a
decision by the DG, as he puts it, to ‘dis-establish’
an
RRO, which had been located in Port Elizabeth since 2000. Sight
cannot be lost, as well, of the fact that his first decision
to close
the PE RRO to new arrivals was taken on 11 October 2011. That
decision, which did not withstand scrutiny by our courts,
made light
of the fact that several communities of refugees and asylum seekers,
including some 14 000 Somali refugees (who are
represented in these
proceedings by the first respondent), reside and work in that
geographic region. Those communities provide
vital support to new
asylum seekers who have little to no financial resources and means of
self-support. The relevant authorities
appear to obfuscate the real
complaint, which is not that there should be an RRO wherever asylum
seekers or refugees choose to
live, but that RROs should be
sufficient in number and located so that asylum seekers and refugees
are reasonably able to access
the services that they require and to
which they are entitled under the Act.
[31]
Until the end of 2010 there were six fully functional RROs situated
in five provinces and in metropolitan areas where asylum
seekers
could expect to access employment and basic services. Rogers J
correctly recognised the prejudice caused to asylum seekers
by the
closure of the CT RRO, when he stated:
[15]
‘
Thousands
of asylum seekers will either have to abandon the idea of residing in
the Cape Town area while their asylum applications
are assessed, or
they will need to spend time and money to travel on a number of
occasions to RROs in the north of the country.
If they have work in
Cape Town, they may lose it because of the need to take off three or
four days for each attendance at an RRO.
If they have dependants,
they would need to leave them in the care of others or travel with
them.
’
And,
as Eksteen J noted in his judgment, ‘the same consequences flow
from the closure of the PE RRO for asylum-seekers who
live and work
in the Port Elizabeth area
[16]
- or indeed, anywhere in the Eastern Cape.’
[32]
It is so that usually when a court reviews and sets aside a decision
of an administrative body it almost always refers the
matter back to
that body to enable it to reconsider the issue and make a new
decision (per Heher JA,
Gauteng Gambling Board v Silverstar
Development Ltd & another
2005 (4) SA 67
(SCA) para 1).
Occasionally, however, as Heher JA added, ‘the court does not
give the administrative organ a further opportunity.
Instead it makes
the decision itself.’ This appears to be such a case. Given the
stubborn adherence by the DG to his initial
decision, why he needs to
bring his mind to bear on the matter again, as argued by counsel, is
not rationally explained. As long
ago as 21 October 2011 the
respondents were informed by Ms Lusu that the decision of the DG was
‘cast in stone’. And,
on 16 September 2012 in an e-mail
addressed to all stakeholders Mr Mabulu, made reference to ‘our
irrevocable decision’
to close the PE RRO. I earlier made
reference to two applications by the respondents for leave to adduce
further evidence –
the first was the Parliamentary question and
answer that I have already alluded to, the second pertains to an
invitation by the
relevant authorities circulated on 10 February 2015
calling a ‘stakeholder meeting on the closure of files in the
[PE RRO],
effective 30 April 2015’. The invitation to that
meeting which was scheduled for 20 February 2015, reads:
‘
In
the spirit of fair administrative justice, the Department of Home
Affairs cordially invites you to a stakeholder meeting. The
Port
Elizabeth Refugee Reception Office was closed on the 21 October 2011.
Subsequently, the Office commenced a process of closing
case files.
This process will culminate on the 30 April 2015, whereby all
applicants are expected to have presented themselves
at the Office to
finalize their case or have their applications deemed as abandoned.
Categories of asylum seekers to come forward
by the 30 April 2015
include those:
Awaiting
finalization of the Refugee Status Determination processes;
Awaiting
finalization of the Appeal process;
Awaiting
finalization of the Review by the Standing Committee on Refugee
Affairs;
Still
to collect their final decisions on status determination, appeal or
review.’
As
the respondents point out, whilst the invitation purports to invite
stakeholders to a meeting ‘in the spirit of administrative
justice’, it is clear from the invitation itself that the DHA
has already ‘commenced a process of closing case files’
and intends to complete this process by 30 April 2015. This approach
is extraordinary given that the more recent decision to close
the PE
RRO was set aside by Eksteen J. And, regardless of this pending
appeal against the decision of Eksteen J, the DHA is, according
to
the circular, taking active steps to implement the previous decision
of the DG to close the PE RRO. But that earlier decision
was declared
unlawful and set aside by Pickering J.
All
of this appears to evidence a fixed view on the part of the relevant
authorities to close the PE RRO irrespective of the circumstances
or
their legal obligations.
[33]
Despite being ordered by Pickering J to reopen the PE RRO, and
despite having been refused leave to appeal by both the high
court
and this Court, the DHA simply took no steps to comply with that
order. Mr Apleni explains:
‘
77.6
I deny that the Respondents took no steps at all to comply with the
order of 16 February 2012. That court order was overtaken
by events,
as communicated in my letter to Lawyers for Human Rights dated 21
September 2012. . .
.
. .
96.3
I admit that the exercise of the power afforded in
section 8(1)
of
the
Refugees Act is
constrained by the principle of legality. I have
submitted in various parts of this affidavit that consequent on the
court order
of 16 February 2012, I remedied the failure to act in
accordance with the terms of
section 8(1)
of the
Refugees Act. I
have
now taken a new, rational and lawful decision as required in law, to
close the PERRO.’
It
is not clear to me why Mr Apleni denies that they ‘took no
steps at all to comply with the order of [Pickering J]’,
when,
as a matter of fact, it is patent that for six months after the
issuance of the order of Pickering J they did nothing. That
denial,
it needs be added, is irreconcilable with his later statement ‘I
remedied the failure to act’. Implicit in
the latter statement
is an acknowledgement that he had indeed failed to act in compliance
with the order of court. Most alarming
though is that in
circumstances where he was being pressed to comply with Pickering J’s
order, he withheld for several months
from the relevant stakeholders
the fact that a new decision had been taken. In my view the relevant
authorities were not free,
in their
election, to simply disregard the order of Pickering J.
The
cornerstone of democracy and the rule of law is the uncompromising
duty and obligation upon all persons, more especially State
departments, to obey and comply with court orders. There are
processes in place for those who disagree with court orders. But they
are not free to simply turn a blind eye to the order nor do they have
any discretion to not obey the order.
[34]
In
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Company Limited
(619/12)
[2013] ZASCA 5
(11 March
2013);
[2013] 2 All SA 251
(SCA) para 17 it was put thus:
‘
.
. . as Froneman J observed in
Bezuidenhout
v Patensie Sitrus Beherend Bpk
2001 (2)
SA 224
(E) at 229B–C:
“
An
order of a court of law stands until set aside by a court of
competent jurisdiction. Until that is done the court order must
be
obeyed even if it may be wrong (
Culverwell
v Beira
1992
(4) SA 490
(W) at 494A-C). A person may even be barred from
approaching the court until he or she has obeyed an order of court
that has not
been properly set aside (
Hadkinson
v Hadkinson
[1952]
2 All ER 567
(CA);
Bylieveldt
v Redpath
1982
(1) SA 702 (A) at 714).”’
Beylieveldt
v Redpath
1982 (1) SA 702 (A) stated at 714E-G:
‘
In
Hadkinson v Hadkinson
(1952) 2 All ER 567 sê DENNING LJ,
met verwysing na 'n party wat 'n Hofbevel verontagsaam het, te
575B-C:
“
...
I am of opinion that the fact that a party to a cause has
disobeyed an order of the Court is not of itself a bar to his
being
heard, but if his disobedience is such that, so long as it continues,
it impeded the course of justice in the cause, by making
it more
difficult for the Court to ascertain the truth or to enforce the
orders which it may make, then the Court may in its discretion
refuse
to hear him until the impediment is removed or good reason is shown
why it should not be removed.”
Ek
gaan, met eerbied, akkoord met hierdie benadering.’
[35]
It is a most dangerous thing for a litigant, particularly a State
department and senior officials in its employ, to willfully
ignore an
order of court. After all there is an
unqualified
obligation on every person against, or in respect of, whom an order
is made by a court of competent jurisdiction to
obey it unless and
until that order is discharged. It cannot be left to the litigants to
themselves judge whether or not an order
of court should be obeyed.
There is a constitutional requirement for complying with court orders
and judgments of the courts cannot
be any clearer on that score. No
democracy can survive if court orders can be shunned and trampled on
as happened here.
[17]
As this
Court stressed in
Gauteng
Gambling Board & another v MEC for Economic Development, Gauteng
2013 (5) SA 24
(SCA) para 52:
‘
[o]ur
present constitutional order is such that the State should be a model
of compliance. It and other litigants have a duty not
to frustrate
the enforcement by courts of constitutional rights.’
[36]
That the State must obey the law, is a principle that is fundamental
to any civilised society. The logical corollary is that
the State,
its organs and functionaries cannot arrogate to themselves the right
not to obey the law or elevate themselves to a
position where they
can be regarded as being above the law. That seems to be precisely
what has occurred here. Unfortunately it
seems to me, in the light of
the history of this matter, that there is every likelihood of a
future repetition of similar conduct
on the part of the relevant
authorities.
That being so, a declaratory
order, without more, will be inadequate and place an unfair burden on
the successful litigants in a
case such as this of grave systemic
problems and when officials have proven themselves not deserving of
trust. In that regard what
was said in
Kalil
NO & others v Mangaung Metropolitan Municipality & others
2014 (5) SA 123
(SCA) para 30 is
apposite:
‘
.
. . This is public-interest litigation in the sense that it examines
the lawfulness of the exercise by public officials of the
obligations
imposed upon them by the Constitution and national legislation. The
function of public servants and government officials
at national,
provincial and municipal levels is to serve the public, and the
community at large has the right to insist upon them
acting lawfully
and within the bounds of their authority. Thus where, as here, the
legality of their actions is at stake, it is
crucial for public
servants to neither be coy nor to play fast and loose with the truth.
On the contrary, it is their duty to take
the court into their
confidence and fully explain the facts so that an informed decision
can be taken in the interests of the public
and good governance.’
[37]
It goes without saying that the refugees and asylum seekers
encountered here are amongst those who are most in need of
protection.
They do not have powerful political constituencies and
their problems, more often than not, are ignored by government.
Previous
orders of our courts appear to have done little to make
their problem visible and to cause the relevant authorities to comply
with
their obligations.
In
Minister
of
Health
and
Others
v
Treatment
Action
Campaign
and
Others
(No 2)
[2002] ZACC 15
;
2002 (5)
SA 721
(CC) para 129
, the Constitutional
Court held that additional relief in the form of a structural
interdict should be granted where ‘it is
necessary to secure
compliance with a court order’ – namely, ‘a failure
to heed declaratory orders or other relief
granted by a Court in a
particular case’.
Given the
intransigence on the part of the relevant authorities, it thus seems
important to provide a remedy to the respondents
that is both
effective and meaningful, for, as Ackermann J made plain in
Fose
para 69:
‘
Particularly
in a country where so few have the means to enforce their rights
through the courts, it is essential that on those
occasions when the
legal process does establish that an infringement of an entrenched
right has occurred, it be effectively vindicated.’
[38]
In
Sibiya & others v Director of Public Prosecutions,
Johannesburg, & others
[2005] ZACC 6
;
2005 (5) SA 315
(CC) paras 60-62 –
a case concerned with the substitution of the death sentence - the
Constitutional Court pointed out that
‘the process has taken so
long that it will be inadvisable for this Court to assume that the
death sentences will be substituted
as envisaged’.
It
accordingly held:
‘
This
court has the jurisdiction to issue a
mandamus
in appropriate circumstances and to exercise supervisory jurisdiction
over the process of the execution of its order [
Minister
of
Health
and
Others
v
Treatment
Action
Campaign
and
Others
(No
2)
[2002] ZACC 15
;
2002
(5) SA 721
(CC)
(2002 (10) BCLR 1033)
in paras [104] - [107].]
It
is appropriate in this case for this to be done.’
[18]
In
resisting the grant of a mandamus, the relevant authorities placed
great store by the dicta of Nugent JA in
Scalabrini
(paras 74-76) to the effect that: the
fate of the [RRO] is for the DG to decide; a court should not
supplant that function; and,
courts ought not to compel the
impossible. It must be remembered that in that case Nugent JA took
the view that the information
on the papers was insufficient to
support the conclusion of the high court that its order was capable
of being complied with. I
do not believe that we are at a similar
disadvantage in this case. The relevant authorities accept that an
RRO can be set up within
three months and the DG has made it clear
that he has ‘not closed the door to the establishment of
additional RROs in other
parts of the country’. In any event,
we are not concerned with the establishment of an entirely new RRO,
but with one that
has been in existence and operational since 2000.
And, as the DG has made plain, ‘the establishment of the
Lebombo RRO went
beyond the challenges presented by the PERRO’.
Thus, as he put it, ‘with or without a fully functioning PERRO,
a new
RRO at Lebombo has been identified as a strategic imperative to
enable the Department to ensure that the objectives of the
Refugees
Act are
attained’. Accordingly, any order as may issue in
respect of the PE RRO will not directly impact on the DHA’s
plans
in so far as Lebombo is concerned. Any such order will thus not
have the effect of constraining governmental policy in that regard
or
trespassing on the domain of the executive.
[39]
To sum up: In my view, this is an appropriate case, for a court to
exercise its supervisory jurisdiction to secure compliance
with its
order. On the one hand, it is necessary that the respondents should
know what progress is being made by the relevant authorities
and also
to avoid being faced, once again, with a
fait
accompli
(
Western
Cape Minister of Education and Others v Governing Body of Mikro
Primary School and Another
2005 (10)
BCLR 973
(SCA) para 51). On the other, the relevant authorities can
always approach the court to extend the period should it turn out to
be too short. This procedure, moreover, allows the court to be
informed about the progress being made in the implementation of
its
order. It follows that the conclusion by Eksteen J (para a), that the
decision by the DG ‘taken on 30 May 2012 to close
the PE RRO to
new applicants for asylum’ was unlawful and fell to be set
aside, cannot be assailed. However, paragraphs (b)
and (c) of the
high court’s order need to be reformulated in line with the
views expressed in this judgment.
[40]
In the result, save for setting aside paragraphs (2) and (3) of the
order of the court below, and substituting them with the
orders that
follow, the appeal is dismissed with costs, to be paid by the first
to third appellants jointly and severally, and
to include the costs
of two counsel. Paragraphs (2) and (3) are substituted with the
following:
‘
(2.1)
The first to third respondents are directed to restore by 1 July 2015
the refugee reception services to the Port Elizabeth
Refugee
Reception Centre such that new applicants for asylum will be able to
make applications in terms of
s 21
of the
Refugees Act 130 of 1998
and, if they qualify, be issued with permits in terms of
s 22
of the
said Act.
(2.2)
The second respondent, the Director General of the Department of
Home Affairs, shall report in writing to the applicants
not later
than 15 April 2015 and, thereafter, on or before the 15
th
day of each succeeding month as to what steps have been taken and
what progress has been made to ensure compliance with the aforesaid
order.
(3)
The parties are granted leave to apply upon the same papers,
supplemented insofar as they consider that to be necessary, for
further relief.’
_____________
V
M Ponnan
Judge
of Appeal
APPEARANCES:
For First
Appellants: M A Albertus SC (with him G R Papier and G G M Quixley)
Instructed
by:
The
State Attorney, Port Elizabeth
The
State Attorney, Bloemfontein
For
Respondents: S Budlender (with him J Bleazard)
Instructed
by:
Lawyers
for Human Rights, Pretoria
Webbers,
Bloemfontein
[1]
T
Mbeki ‘I am an African’ address to the Constitutional
Assembly
on
the occasion of the adoption of the new Constitution of the Republic
of South Africa on 8 May 1996 at Cape Town.
[2]
South
African Human Rights Commission
Report
into the arrest and detention of suspected undocumented migrants
(1999) at 5.
[3]
Union
of Refugee Women & others v Director: Private Security Industry
Regulatory Authority & others
2007
(4) SA 395
(CC) para 29. See also J
Hathaway
(ed)
Reconceiving
International Refugee Law
(1997) at 8; and L B Landau, K Ramjathan-Keogh and G Singh
Xenophobia
in South Africa and problems related to it
,
Forced Migration Working Paper Series 13 (2004) at 34, available at
http://migration.wits.ac.za, accessed on 12 May 2015.
[4]
H
Arendt
The
origins of totalitarianism
at
296.
[5]
The
following points of the Declaration are especially relevant to
vulnerable migrants and the eradication of xenophobia: principle
53:
‘We underline the urgency of addressing the root causes of
displacement and of finding durable solutions for refugees
and
displaced persons, in particular voluntary return in safety and
dignity to the countries and local integration, when and
where
appropriate and feasible’; and, principle 54: ‘We affirm
our commitment to respect and implement humanitarian
obligations
relating to the protection of refugees, asylum-seekers, returnees
and internally displaced persons, and note in this
regard the
importance of international solidarity, burden sharing and
international cooperation to share responsibility for the
protection
of refugees, reaffirming that the 1951 Convention relating to the
Status of Refugees and its 1967 Protocol remain
the foundation of
the international refugee regime and recognizing the importance of
their full application by States parties’.
[6]
A
report by the Wits Forced Migration Studies Programme with Lawyers
for Human Rights states:
‘
Our
research into practices at the Johannesburg RRO confirms
longstanding accusations of administrative incapacity,
discrimination,
exploitation, and violence. Long queues, unprotected
from the weather, [are but the first indignity awaiting asylum
seekers]
. . . extended stays in unsanitary conditions,
exploitation
from private security guards, and extortion by networks involving
translators, guards, and Home Affairs officials.
Those who gain
access to the RRO—often upon payment—face administrative
delays, staff that are overworked or under-motivated,
and further
exploitation from translators and officials. For these reasons,
acquiring status as either an asylum seeker or refugee
typically
requires stamina, determination, and cash. Those unable to meet
these requirements—including the elderly, infirm,
poor, and
other vulnerable groups—are effectively denied the protections
to which they are legally entitled.
’
See
L B Landau
Migration trend, management,
& governance challenges: Testimony prepared for the ad hoc
Committee on Democracy & Good
Political Governance
(2005)
at 9-10. See also
Kiliko & others v
Minister of Home Affairs & others
2006 (4) SA 114 (C).
[7]
In
R
v Secretary of State for Social Services, Ex Parte Association of
Metropolitan Authorities
1986
1 WLR (QB) at 4F-H it was put thus: ‘But in any context the
essence of consultation is the communication of a genuine
invitation
to give advice and a genuine receipt of that advice. . . .’
[8]
In
an urgent internal memo dated 16 January 2012 the Chief Director:
Asylum Seeker Management is recorded as having tasked the
Chief
Director: Property and Infrastructure Management with performing an
urgent assessment of accommodation for the envisaged
Lebombo RRO.
The minutes of an Exco Meeting of the DHA held on 10 February 2012
record that the new ‘[RRO] in the Mpumalanga
Province should
be operational as from 1 April 2012. On 24 May 2012, the Chief
Director: Property and Facility Management of
the DHA, Mr Vukani
Nxasana, emailed the Chief Architect of the Department of Public
Works working on the Lebomba project, Ms
Sushma Patel. The email
reads:
‘
the
main concern [of the Director-General of the DHA] is that Home
Affairs has to demonstrate to the courts (PE and Cape Town)
that
reception centres will be opened soon. To that end, it would be
appreciated if you could provide a high-level analysis of
the two
options . . . We will then have to present these to the DG and move
forward.’
[9]
Regulation
6853 of 2000, which came into effect on 28 July 2000 in terms of
s 2
of the
Executive Members’ Ethics Act 82 of 1998
.
[10]
Halsbury’s
Laws of England
vol 78 (2010) para 1084;
Profumo's
Case
(1963) 218 Commons Journals 246.
[11]
P
de Vos and W Freedman (eds)
South
African Constitutional Law in Context
(2014) at 144.
[12]
Modderfontein
Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty)
Ltd (Agri SA and Legal Resources Centre, Amici
Curiae); President of
the Republic of South Africa & others v Modderklip Boerdery
(Pty) Ltd (Agri SA and Legal Resources
Centre, Amici Curiae)
2004
(6) SA 40
(SCA) para 42.
[13]
K
Roach and G Budlender ‘Mandatory relief and supervisory
jurisdiction: When is it appropriate, just and equitable?’
2005
SALJ
325
at 326.
[14]
F
Ansley ‘Constructing citizenship without a licence: the
struggle of undocumented immigrants in the USA for livelihoods
and
recognition’ in N Kabeer (ed)
Inclusive
citizenship: Meanings and expressions
(2005) at 209.
[15]
Scalabrini
Centre & others v Minister of Home Affairs & others
2013
(3) SA 531
(WCC)
para 110.
[16]
Somali
Association of South Africa Eastern Cape (SASA EC) v Minister of
Home Affairs
2013
JDR 1502 (ECP)
para
47.
[17]
Hadkinson
v Hadkinson
[1952] 2 All ER 567
at 569C-G;
Supreme
Court Reference No 1 of 2012; Re Prime Minister and National
Executive Council Act 2002 Amendments and Reserve Powers
of the
Governor General
[2012]
PGSC 20
paras 345-349. See also
X
Ltd v Morgan-Grampian (Publishers) Ltd
[1990] 2 All ER 1
at 11B-G.
[18]
See
also 11
Lawsa
2 ed para 411;
Sibiya
& others v Director of Public Prosecutions, Johannesburg &
others
[2005] ZACC 6
;
2005 (5) SA 315
(CC) para 64;
Nyathi
v MEC for Department of Health, Gauteng & another
2008 (5) SA 94
(CC) para 92;
Residents
of Joe Slovo Community, Western Cape v Thubelisha Homes & others
(Centre on Housing Rights and Evictions & another,
Amici curiae)
2010 (3) SA 454
(CC) para 7;
Occupiers
of Mooiplaats v Golden Thread Ltd & others
2012 (2) SA 337
(CC) para 21;
Pheko
& others v Ekurhuleni Metropolitan Municipality
2012 (2) SA 598
(CC) para 53.