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[2016] ZAGPJHC 188
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Kumah and Others v Minister of Home Affairs and Others (22481/2016, 22482/2016, 22393/20016, 22392/2016, 22480/2016, 22448/2016, 22449/2016, 22537/2016) [2016] ZAGPJHC 188; [2016] 4 All SA 96 (GJ); 2018 (2) SA 510 (GJ) (8 July 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case No: 22481/2016
22482/2016
22393/20016
22392/2016
22480/2016
22448/2016
22449/2016
22537/2016
DATE:
8 JULY 2016
In
the matter between:
KUMAH
ERIC
..........................................................................................................................
Applicant
NNAMDI
OKAFOR CHIJIOKE (“CHILOSE
OKAFEN”)
................................................
Applicant
NASIR
MOHAMMED
.............................................................................................................
Applicant
KWANDO
KYERE
...................................................................................................................
Applicant
UGOCHUKWU
ESEMONU FRANCIS (“FRANCIS
JESEMONU”)
................................
Applicant
AKOLIE
PAUL
OLILEANYI
..................................................................................................
Applicant
ANEROBI SUNDAY
(ANIROBI)
...............................................................................................
Applicant
ONYENZE
PHILIP
...................................................................................................................
Applicant
And
THE
MINISTER OF HOME
AFFAIRS
.....................................................................
First
Respondent
THE
DIRECTOR GENERAL,
DEPARTMENT
...................................................
Second
Respondent
OF HOME
AFFAIRS
THE
HEAD OF LINDELA
REPATRIATIONS
.......................................................
Third
Respondent
FACILITY
(BOSASA (PTY) LTD t/a LEADING
PROSPECTS
TRADING)
MINISTER OF
POLICE
..........................................................................................
Fourth
Respondent
THE
CHIEF MAGISTRATE,
KRUGERSDORP
.....................................................
Fifth
Respondent
MAGISTRATE’S COURT
Summary:
Applicants seek to
invoke the provisions of the
Refugees Act 130 of 1998
but have failed
to furnish any factual basis for invocation of and reliance upon such
legislation as was done in the matters of
Bula
and others v Minister of Home Affairs and Others
2012
(4) SA 560
(SCA) and
Ersumo
v Minister of Home Affairs and Others 2012(4) SA 581 (SCA)
.
No court can attempt or purport to apply legislation which is of no
relevance to the dispute at hand. Any party seeking relief
in terms
of legislation must satisfy the court as to jurisdiction,
locus
standi
,
applicability of the legislation in general and specific provisions
thereof.
Four
applicants aver no more than unidentified fears or risks of
persecution without giving any basis for such risk or fear of risk,
the nature which such persecution might have taken and by whom it
might have been perpetrated. One applicant avers no more than
the
presence of religious conflict in his home village without giving any
basis why he might or might not have been the intended
victim of any
such religious differences. One applicant details that he is a
Christian and his family was attacked by Muslims but
gives no
indication that all Christians in Nigeria are subject to such attack
and that there is no safety anywhere in that country.
None of these
applicants indicate that he holds a “well-founded” fear
of being “persecuted by reason of his race,
tribe, religion,
nationality, political opinion or membership of a particular social
group” and is “unable to avail
himself of the protection
of the country [of his nationality]” (See
section 3(a)
of the
Refugees Act). Nor has
any applicant indicated that there are “events
seriously disturbing or disrupting public order in either a part or
the whole
of his country of origin” which compels him to leave
his place of residence to seek refuge in South Africa. None of these
applicants have given any indication that the possibility of
persecution extends to them within the whole of their country of
origin or nationality and that there is no safe place for them in
Nigeria or Ghana or Pakistan.
One
applicant was involved in a family dispute over land with an uncle
which unhappy state of familial discord does not begin to
bring him
within the purview of
Section 3
of the
Refugees Act. His
is a
‘manifestly unfounded application’.
The
confidentiality provisions of subsection 21(5) do not preclude
disclosure of sufficient factual information to bring the applicants
within the purview of the
Refugees Act as
was done in both
Bula
supra
and
Ersumo
supra.
Four
applicants made no application for temporary asylum permits
notwithstanding residence in the Republic for periods ranging from
five to nine months unlike the apparently ‘meritorious’
or ‘genuine’ applicants in
Bula
supra
and
Ersumo
supra
where the
applicants had either been arrested on the day of arrival or within
26 days of the last attempt at making such application.
Two applicants were informed that their applications for
asylum had been rejected and thereafter fled from the Department of
Home
Affairs, took no steps for appeal or review and elected not to
pursue their remedies in terms of the legislation. Two applicants
have had their applications rejected with one having taken the
respondents on review on the basis that he is the victim of a family
dispute over land and the other claiming that there is nothing to be
reviewed or appealed since the rejection was not accompanied
with
reasons.
The
applications for release were dismissed.
JUDGMENT
SATCHWELL J:
INTRODUCTION
1.
It would seem that the
court in the Gauteng Local Division allocated to hear applications on
an urgent basis because such matters
cannot be heard in accordance
with the prescriptions of the Rules of Court or the Practice
Directives has now become almost exclusively
“a refugees’
court”. In this one week I have heard ten matters where the
applicants claim the protection of the
Refugees Act 130 of 1998 (‘the
Refugees Act&rsquo
;) which obviously indicates that there are
difficulties in the implementation of such legislation and also
renders this court overburdened
in one area of administrative law.
2.
I take the view that
the liberty of the individual is always a matter of urgency
[1]
and accordingly I have heard each matter before me this week.
3.
On the one hand, I have
great concern that resort to the
Refugees Act is
being abused by
persons who fail to give any indication why they fall within the
purview of such legislation and the basis upon
which they are
entitled to ask for the protection of such legislation. On the other
hand, I am concerned that many of these matters
could be resolved by
provision of administrative facilities such as establishment of
offices of the Department of Home Affairs
within the detention
facilities where persons who wish to claim refugee status could be
enabled to make the appropriate applications
for asylum and to
receive relevant advice.
[2]
4.
These applications were
all brought as a matter of urgency. The respondent was represented in
court but failed to conduct any enquiry
or to prepare answering
affidavits. Accordingly, the argument heard from respondents was
based solely on those facts as may have
been contained in the
applicants’ founding papers.
5.
I note that, in these
applications and in a number of others this week where I have
handed down other judgments, the
various
respondents ( such as The Minister and Director General of Home
Affairs, The Head of Lindela, senior officials
and employees of
those respondents ) were quite incapable of preparing and
depositing on oath before a commissioner of oath
to an answering
affidavit. Mention was made of ‘draft’
affidavits but these, of course, unsigned
and unsworn are not
affidavits. Similarly, the office of the State Attorney
appears incapable of preparing affidavits.
In all the matters there
was sufficient notice given before the urgent hearing. In other
urgent applications which do not
involve these respondents or this
attorney, respondents can read and write, can formulate a defence if
they have one, can prepare
documents and can find a commissioner of
oaths before whom the affidavit can be signed. This all
seems to be beyond
those whom are paid by tax payer’s monies.
In fact, documents were tendered in photocopy format without any
affidavit
indicating by whom they had been compiled, in whose
possession they had been kept. Matters stood over from one day
to another
to enable the State Attorney to obtain documents which was
sometimes not even done and if photocopies were available they were
simply handed in without even an accompanying affidavit. In
addition, a matter would be argued and then the court would
be told
that there was another document “somewhere”, “not
in this court” as though it was possible for
a court to have
regard to same. I deplore this lack of enthusiasm for the
practice of law on the part of the State Attorney
and the lack of
response by these respondents. In other matters, I have issued
an order that the respondents (plus the State
Attorney) prepare
affidavits and attend at court to explain their failure to
render service at all to the courts, those
whom they detain and those
whom they wish to deport. That is, in part, the
background to these applications as well.
6.
However, the founding
affidavits of the applicants are singularly silent on virtually all
essential issues such as:
a.
The applicability of
the
Refugees Act. There
is an absence of factual averment which would
bring the applicant within the purview of the Act. In many cases
there is no more
than a bare allegation that the applicant is in fear
of persecution but no factual basis is indicated therefore.
b.
The means and duration
and route of travel from applicant’s home to the Republic which
gives the court no indication why asylum
was not sought at the first
safe country reached by this traveller or whether or not the
traveller boarded an aeroplane with a
passport, visa and valid
ticket.
c.
Some applicants claim
that it was their dearest wish to make application for asylum but
that circumstances prevented them from so
doing. They fail to
indicate the years, months or dates when they made any such
attempt(s) and what specifically prevented an unemployed
traveller
from persisting in any attempt to apply for asylum.
d.
On occasion a temporary
permit was granted in terms of section 22(1) but no details are given
of such issue. Where the application
was ultimately rejected,
applicants are frequently silent as to the date of such rejection and
when they were so informed.
e.
One applicant is even
silent as to the date and place of his arrest.
f.
No applicant indicates
the address where he was living prior to arrest, the source of his
sustenance, where in the Republic he would
live upon his anticipated
release and whilst he would be pursuing applications for asylum,
appeal or review. In other words, there
is no indication where or how
the Department of Home Affairs may maintain contact with these
applicants.
7.
Although there is a
marked absence of relevant fact set out in these affidavits, each is
replete with conclusions of law without
setting out the factual basis
for such conclusions. There is much repetition as to the provisions
of the
Refugees Act even
when such provisions have no relevance to
the particular application.
[3]
FACTS ADDUCED IN
SUPPORT OF INDIVIDUAL APPLICATIONS
8.
Kumah
a.
Left Ghana in 2015 by
unknown means.
b.
Arrived in the Republic
of South Africa through Botswana on 28
th
August 2015.
c.
No application for
asylum.
d.
Arrested on 12
th
May 2016.
e.
Claim that the
provisions of the Refugee Act are of application because of
“political and social persecution and in fear of
my life”.
9.
Nnamdi
a.
Left Nigeria in 2015 by
unknown means.
b.
Arrived in Republic of
South Africa in October 2015 via Maputo, Mocambique.
c.
No application for
asylum.
d.
Arrested on 11
th
June 2016.
e.
Claims that that the
provisions of the Refugee Act are applicable because “I “face
a real risk of persecution and danger
to my life”
10.
Nasir
a.
Left Pakistan on an
unknown date.
b.
Arrived in the Republic
of South Africa at O. R. Tambo International Airport on 29
th
January 2016.
c.
Did not make an
application for asylum.
d.
Arrested on 19
th
May 2016.
e.
His family in Pakistan
has sent funds to meet the legal costs of this application.
f.
Claims that the
provisions of the Refugee Act are of application to him because “I
fled in fear of persecution” and
he “was persecuted”.
11.
Kwando
a.
Left Ghana on an
unknown date by unknown means.
b.
Arrived in the Republic
of South Africa in May 2015.
c.
Applied for asylum
which was rejected by the RSDO and which decision was upheld by the
SCRA.
[4]
d.
Arrested on 25
th
May 2016 and was then informed that the appeal had been dismissed.
e.
Has now brought an
application for review in the Pretoria High Court.
f.
Claim that the
provisions of the Refugee Act are of application because “both
my parents died and left me with a big farm.
In Ghana if you are
young the elder people from your family they are the one who should
take over the property. My uncle was the
one who wanted to take over
from my parents property but I refused. He tried to kill me but I
managed to escape and reported him
to the police but he will not be
arrested. Then I was assisted by my pastor to leave Ghana because
there was nothing which was
done by the relevant authorities.”
[5]
12.
Ugochukwu
a.
Left Nigeria in
February 2016 by unknown means.
b.
Arrived in the Republic
of South Africa via Maputo, Mocambique in February 2016.
c.
No application for
asylum was made.
d.
Arrested on 11
th
June 2016.
e.
Claims that the
provisions of the Refugee Act are of application “as a result
of political and social persecution and because
I am in fear of my
life”.
13.
Akolie
a.
Left Nigeria on an
unknown date by unknown means.
b.
Arrived in the Republic
of South Africa “in September 2013” via Beitbridge.
c.
Applied for asylum on
an unknown date. Was informed that the application had been rejected
in March 2016. As a result “fled
in fear of arrest” from
the office of the Department of Home Affairs.
d.
Arrested on 23
rd
May 2016.
e.
Claims that the
provisions of the Refugee Act are of application to him because
“there was religious aggression and clashes
in my place”.
14.
Anerobi
a.
Left Nigeria on an
unknown date by unknown means.
b.
Arrived in the Republic
of South Africa via Beitbridge at the “end of 2010”.
c.
Applied for asylum on
an unknown date. Was informed that the application had been rejected
on an unknown date. As a result “fled
in fear” from the
offices of the Department of Home Affairs.
d.
Arrested on 21
st
May 2016 without a permit.
e.
Has now brought an
application for review in the Pretoria High Court.
f.
Claims that the
provisions of the Refugee Act are of application to him because “I
ran because of religious unrest in my place.
I am a Christian and we
were attacked by Muslims. I lost my family as a result.” and “I
fled my country of origin for
fear for my life due to religious
aggression and clashes between us as Christians and Muslims in my
place which resulted in the
death of my family”.
15.
Onyenze
a.
Left Nigeria in August
2014 by unknown means.
b.
Arrived in the Republic
of South Africa in August 2014.
c.
Applied for asylum,
temporary permits were granted and extended of which the latest was
extended until 18
th
August 2016.
d.
Arrested on an unknown
date when not in possession of any asylum permit.
e.
Attached to the
application is a memorandum from the Department of Home Affairs date
28
th
June 2016 confirming the application for and the granting of a permit
extended until 18
th
August 2016 and a memorandum from the Department of Home Affairs
reflecting the photograph of the applicant, his personal details
and
that the status of his application for asylum was “final
rejection – RSDO decision upheld by SCRA”.
f.
Claims that the
provisions of the
Refugees Act are
applicable because he was “forced
to flee Nigeria August 2014 as a result of political and social
persecution and in fear
of my life”
THE
LAW
Applicability of the
Refugees Act
16.
It is trite that it is
not within the power of nor the functions of this court, hearing this
particular application, to determine
the merits of an application for
asylum in terms of the
Refugees Act.
17.
However
, no court can
attempt or purport to apply legislation which is of no relevance to
the dispute in hand. Any party seeking relief
in terms of the Road
Accident Act 56 of 1996, the
Prevention of Illegal Eviction From and
Unlawful Occupation of Land Act 19 of 1998
, the Wills Act 7 of 1953,
the
Consumer Protection Act 68 of 2008
, the
National Credit Act 34 of
2005
or any other legislation must satisfy the court as to
jurisdiction,
locus
standi
,
applicability of the legislation in general and specific provisions
thereof. An application which seeks the protection of and
the
implementation of the
Refugees Act is
no different.
18.
In the seminal matters
of
Bula and Others v
Minister of Home Affairs and Others
2012 (4) SA 560
(SCA) and
Ersumo
v Minister of Home Affairs and Others
2012 (4) SA 581
(SCA) the Supreme Court of Appeal made it clear that
the factual basis justifying and entitling resort
to the
provisions of the
Refugees Act must
be placed before the
court. In
Bula supra
at paragraph [4] the applicants claimed to be members of an
identified political party in their country of origin, the status of
that party was one in and opposition, the specific steps which
had been taken against the applicants by reason of their membership
of that party in opposition. In
Ersumo
supra
at paragraph
[1] the applicant claimed to have been imprisoned in a named prison
as well as tortured by an identified group of
persons, for political
reasons. In both cases, the Supreme Court of Appeal was furnished
with details of the route undertaken by
the applicants on their
journey towards the Republic – the one was a lengthy journey by
foot and the other involved a stop
in an intervening country which,
for given reasons, was not thought to be a ‘safe haven’.
19.
In short, as was
concluded by the court in
Ersumo
supra
at paragraph
[7], there was “sufficient material to indicate the
applicant may have a valid claim to refugee status”.
[6]
20.
The referral to
conditions suffered by the applicants in their countries of origin by
the Supreme Court of Appeal in both of the
above matters was not to
prejudge or even express a preliminary view on the substantive
application for asylum. It was necessary
for the court to be
satisfied that the application was one which could invoke
consideration of and application of the
Refugees Act. Absent
fundamental and necessary averments, it is difficult to know on what
basis any court could rely upon the
Refugees Act for
determination of
the application and the dispute before it.
21.
In the matters
presently before myself, there is a singular absence of disclosure on
the part of the applicants. I am not provided
with even a foretaste
of such information as was made available to the Supreme Court of
Appeal.
22.
Four applicants (Kumah,
Nnamdi Nasir, Ugochukwu ) aver no more than “risk of
persecution” without giving any basis
for such risk or fear of
risk , the nature which such persecution might have taken and by whom
it might have been perpetrated.
One applicant (Akolie) avers no more
than the presence of religious conflict in his home village without
giving any basis why he
might or might not have been the intended
victim of any such religious differences. One applicant (Anerobi)
details that he is
a Christian and his family was attacked by Muslims
but gives no indication that all Christians in Nigeria are subject to
such attack
and that there is no safety anywhere in that country.
23.
None of these
applicants indicate that he holds a “well-founded” fear
of being “persecuted by reason of his race,
tribe, religion,
nationality, political opinion or membership of a particular social
group” and is “unable to avail
himself of the protection
of the country [of his nationality]”.
[7]
Nor has any applicant indicated that there are “events
seriously disturbing or disrupting public order in either a part or
the whole of his country of origin” which compels him to leave
his place of residence to seek refuge in South Africa.
[8]
24.
None of these
applicants have given any indication that the possibility of
persecution extends to them within the whole of their
country of
origin or nationality and that there is no safe place for them in
Nigeria or Ghana or Pakistan.
25.
One applicant (Kwando)
was involved in a family dispute over land with an uncle which
unhappy state of familial discord does not
begin to bring him within
the purview of
Section 3
of the
Refugees Act. His
is a ‘manifestly
unfounded application’.
26.
None of the applicants
indicate their means of travel nor the route followed in the journey
to the Republic. One (Nasir) apparently
arrived by aeroplane (and
presumably with an airticket, passport and visa) from Pakistan; two
(Nnamdi and Ugochukwu) arrived via
Maputo (presumably with airticket,
passport and visa) from Nigeria; two (Anerobi and Akolie) arrived via
Zimbabwe (presumably with
airticket, passport and visa) from Nigeria;
one (Kumah) arrived via Botswana (presumably with airticket, passport
and visa) from
Ghana; one (Kwando) arrived from Ghana and one
(Onyenze) arrived from Nigeria and no detail of neither applicant’s
intervening
journey is given.
27.
The legal
representatives who argued these applications before me throughout
the week relied upon the ‘confidentiality’
provisions of
section 21(5)
of the
Refugees Act to
the effect that “the
confidentiality of asylum applications and the information contained
therein must be ensured at all
times” save when the Refugee
Appeals Authority may, in certain circumstances, allow any person or
the media to attend and
report on such hearing. Such reliance is
misplaced to found the argument that this provision precludes the
need for the applicants
to furnish any information whatsoever
pertaining to those fundamental issues dealt with in
section 3
of the
Refugees Act.
28.
Reliance upon those
provisions of
section 21(5)
are not of assistance to justify the
failure to furnish any material basis to enable applicants to invoke
the provisions of the
Refugees Act. This
application before me is not
an ‘asylum application’ as referred to in
section 21(5)
,
this is not a hearing before the Refugee Appeals Authority or any
other body established in terms of the
Refugees Act. This
is an
application before the High Court and the applicant is seeking
certain relief provided for in both our common law (
interdict
de homine liberendo)
and
in a wide variety of legislation ( ranging from the Constitution of
the Republic of South Africa 1996 to the
Promotion
of Administrative Justice Act 3 of 2000
).
29.
If an applicant seeks
to invoke the provisions of any legislation, then the applicant must
place before this court sufficient factual
evidence to call such
legislation into consideration and perhaps application. Absent any
information which would bring an applicant
within the purview of the
Refugees Act and
perhaps offer an applicant the protection of the
Refugees Act, it
is difficult to see how a court could begin to apply
that legislation to the dispute in question.
30.
The facts set out in
Kwando indicate that his application to this court for protection in
terms of the
Refugees Act is
“manifestly unfounded” as
contemplated in the Act.
31.
None of the applicants
have disclosed sufficient information to even attempt to
meet the standard applied in the
Bula
supra
and
Ersumo
supra
matters.
Failure to Apply for Asylum
32.
Four applicants (Nasir,
Ugochukwu, Kumah, Nnamdi) made no application for a temporary asylum
permit as provided for in terms of
section 22
of the
Refugees Act.
Insofar
as any of them averred that they had encountered difficulties
in making such an application, each was noticeably vague on the point
– unlike
Ersumo
supra
where dates
and places were given to the court.
33.
The legal
representatives for these applicants relied upon the authorities of
Bula supra
and
Ersumo supra
in support of the submission that all applicants who wish to make an
application for asylum may do so whenever it may take his
fancy. That
is not the guidance and direction offered in those judgments of the
Supreme Court of Appeal.
34.
In
Bula
supra
, the
applicants arrived in Johannesburg on 16
th
June 2011 and were arrested that very day. They had had no
opportunity at all to make any application for a temporary asylum
permit
before they were actually arrested. In
Ersumo
supra
, the
applicant had been granted an asylum transfer permit, had made
attempts on identified dates to make an application for asylum
and
the court found that there had been no more than a lapse of 26 days
from the last attempt to apply for asylum and his arrest.
35.
I am mindful that the
court in
Ersumo
supra
makes it
abundantly clear that the regulations, though referring to making an
application “without delay”, give no
time periods within
which an application must be made and that the legislation makes no
reference to “the duration of the
illegal presence”.
[9]
Both
Bula
and
Ersumo supra
make it clear that any illegal foreigner must be permitted to apply
for asylum.
36.
But the Supreme Court
of Appeal does not appear interpret the legislation or regulations to
allow an indefinite and unlimited period
for an illegal foreigner to
seek to invoke the protection of the
Refugees Act when
it finally
suited him so to do. In
Bula
supra
the
applicants had been in the Republic for an identified period of one
day without making an application. In
Ersumo
supra
the applicant
had made several attempts to make the application and 26 days had
elapsed before the arrest occurred.
37.
In the cases before me,
the applicants (who have failed to make the necessary applications
from time of arrival in the Republic
to time of arrest) had been in
the Republic for lengthy periods – Nnamdi for eight months,
Ugochukwu for four months, , Kumah
for nine months, Nasir for four
months.
38.
In
Ersumo
supra
the court
placed special reliance upon a phrase in
Abdi
and Another v Minister of Home Affairs and Others
2011 (3) SA 37
(SCA) to the effect that “intending applicants
for refugee status are given every
reasonable
opportunity
to file
an application with the relevant refugee reception office”
[10]
.
[my underlining]. It cannot be said that these applicants have not
had every reasonable opportunity – extending from four
to nine
months – to make any application which they may have genuinely
wished to make.
39.
Of course, the findings
of the Supreme Court of Appeal were against the backdrop that “there
is nothing to indicate that
a
meritorious application
may be refused merely on the grounds of delay in making the
application” (at paragraph [15] of
Ersumo
supra
) and (at
paragraph [72] of
Bula
supra
) that “The
purpose of subsection 2 is clearly ensure that where a foreign
national indicates an intention to apply for asylum,
the regulatory
framework of the RA kicks in, ultimately to ensure that
genuine
a
sylum seekers are
not turned away”. In the present cases there is nothing to
indicate any merit in any of the applications
for asylum.
Failure to Exhaust
Remedies
40.
Two applicants
(Anerobi, Akolie) made applications for asylum in terms of
section 21
of the
Refugees Act and
were granted temporary permits in terms of
section 22.
However, when they were advised that their applications
had been rejected they did not pursue an appeal or take the matter on
review.
They disappeared. They abandoned the procedures created in
terms of the
Refugees Act.
41.
Both
applicants claim
they ‘fled’ the Department of Home Affairs because they
feared arrest. The result was that they elected
to participate no
further in the system provided to enable refugees to be granted
asylum status. They ‘fled’ and, in
so doing, ceased to
participate in the process and failed to utilise the remedies then
available to them.
42.
It was submitted by
respondent’s legal representative that these applicants
accepted the decision of rejection of the asylum
application by
reason of the flight and the failure to take any steps to challenge
same. I cannot agree with this. The flight is
an indication that the
decision was not accepted, that the applicant wanted to stay in the
Republic and not return to his place
of origin. This was not
acceptance of a decision but avoidance of both the decision and the
implications thereof.
Rejection of
Application
43.
Not only did two
(Anerobi and Akolie) of the applicants flee from the office of the
Department of Home Affairs when they were informed
that their
applications for asylum had been rejected. One applicant (Kwando) has
had his application rejected and he had lodged
a review with the
Pretoria High Court. Another applicant (Onyenze) was granted a permit
which was extended until 18
th
August 2016 but it now emerges that this application has been
rejected.
44.
The legal
representative for Onyenze offered a multi-faceted argument. I note
that, for some reason, in these ‘refugee’
applications
legal representatives do not subject themselves to the discipline of
preparing heads of argument which would focus
the argument, identify
the issues to be determined or highlight the authorities.
45.
As I understand the
argument, it is that there is a piece of paper which cannot be
identified as such and which cannot be given
the status of a
‘rejection’ because no reasons are attached thereto.
Until a valid decision has been taken and reasons
given by the
Director-General in terms of
section 24A
of the
Refugees Act and
the
decision upheld by the Director-General, there is no decision,
nothing to review, nothing which would trigger the necessity
for any
appeal or review or other action on the part of the applicant.
46.
It is correct that
section 24(4)
of the
Refugees Act requires
the Refugee Status
Determination Officer to “furnish written reasons to the
applicant within five working days after the
date of the rejection”.
Such reasons must obviously be furnished by the functionary making
such decision – the Refugee
Status Determination Officer. In
the event that such official has failed or refused to furnish such
reasons as required by legislation,
this does not mean that there is
no decision as counsel has argued. There is a decision although it
may not have been accompanied
by or followed by reasons. The decision
may, of course, be challenged on the basis that it is unsupported by
reasons. That may
be grounds for successful review or appeal. But it
cannot mean that there is no decision, no rejection and that such can
simply
be ignored.
[11]
47.
I have some difficulty
in understanding the reference in counsel’s oral argument to
duties imposed on no one other than the
Director General in terms of
Section 24A
of the
Refugees Act. The
copy of the legislation which is
availed to me by the library of the High Court does not have a
section 24A
and it would appear that the 2008 amendments have not yet
commenced operation.
48.
Furthermore, the legal
representative for the applicant Onyenze submitted that the permit
granted to the applicant endures until
and only expires on 18
th
August 2016. It is argued that, until such date, the applicant is
entitled to utilise same and is lawfully within the Republic.
Insofar
as
section 22(5)
of the
Refugees Act permits
such a permit to be
withdrawn, this may only be done by the Minister.
49.
Notwithstanding, that
the Minister is empowered by this Act to delegate his powers, this
argument fails to have regard to the provisions
of section 22(1) of
the Act. An ‘asylum seeker permit’ must be granted by a
Refugee Reception Officer “
pending
the outcome of an application in terms of section 21(1)”. That
permit allows the applicant “to sojourn in the Republic
temporarily
”
[my underlining].
50.
The subsection gives
two indications of the temporary and dependant and contingent nature
of the permit. It is a permit which must
be issued “pending”
the outcome of an application and it is only a permit to reside in
the Republic on a “temporary”
basis. Once the application
is no longer pending, the permit ceases to have utility since the
purpose for which and the condition
upon which the permit was granted
has ceased to exist. Issue of the permit is of limited duration and
is contingent upon the happening
of the event – which event
materialises once there is rejection of the application.
51.
Should the applicant
choose to pursue the matter and decide to appeal a decision or take a
decision upon review, then the applicant
may be granted another
temporary and contingent permit pending the outcome of such appeal or
review.
52.
Applicant Onyenze has
no right to a permit subsequent to rejection of his application and
no entitlement to insist that the temporary
permit remains available
to him until August 2016.
COSTS
53.
Costs was a matter of
some concern to all parties.
54.
In each case the
initial arrest and detention was certainly lawful. Each applicant is
a foreigner. Only two of them had ever been
granted “an asylum
seeker permit” in terms of section 22 (1) of the Act. Onyenze
was not in possession of his permit
when he was apprehended and
therefore there was no unlawfulness in apprehending him since he was
then unable to indicate that he
had ever been granted such a permit.
Kwando was arrested when he was informed that his application for
asylum had been rejected.
55.
In a number of cases,
the applicants’ legal representatives had written to
respondents giving them notice of the perceived
unlawfulness of the
detention of the applicants and demanding their immediate release. It
is argued that, failing release and with
opposition to the
applications before me, that costs should be awarded in favour of the
applicants and against the respondents.
56.
The difficulty is the
failure on the part of the applicants to give sufficient material
indication as to the basis upon which they
are or should be entitled
to be treated in terms of the
Refugees Act.
57.
I deplore their lengthy
detention. But I cannot order their release. It is difficult to
conceive into what fate or circumstance
such release could be
ordered. I have not been given any lawful basis upon which I can
order that any permit be furnished to them.
No such purpose or any
foundation in law has been adverted to. The result of their release
would be without apparent purpose. They
would be ‘illegal
foreigners’ who could lawfully be rearrested even before they
had left the gates of Lindela Detention
Centre. If they managed to
get beyond the gates of Lindela they would be without any
documentation to allow them to lawfully remain
in this country. They
would be subject to the vagaries of living an illegal and underground
life always on the verge of arrest.
58.
They are currently in
custody at Lindela detention centre awaiting deportation. That
deportation should not be delayed. It must
be implemented forthwith
since these applicants cannot be deprived of their liberty by reason
of administrative incapacity on the
part of the respondents.
ORDER
59.
An order is made as
follows:
a.
The applications are
dismissed.
b.
The question of costs
is postponed to enable full argument to be heard as set out below.
c.
The respondents plus
the Head of Home Affairs for Gauteng plus the State Attorney are to
prepare affidavits, attend at court
on a date to be arranged to
explain the failure or inability of all respondents and legal
representatives to act in accordance
with the Law as set out above,
to explain their failure or inability to work in a manner that
enables urgent applications to be
dealt with as prescribed by the
Rules of Court and to enable this court to decide whether costs
de
bonis propriis
should be paid in these matters by any employee or functionary
personally rather than the taxpayer.
DATED
AT JOHANNESBURG 08
TH
JULY 2016
SATCHWELL J
Counsel
for Applicants Kumah, Nnamdi and Ugochukwu: Mr Mathebula.
Attorneys
for Applicants: Ntiyiso Mathebula Attorneys.
Counsel
for Applicants Nasir and Kwando: Mr Petla.
Attorneys
for Applicants Nasir and Kwando: Mzamo Attorneys.
Counsel
for Applicants Akolie and Anerobi: Mr Mkata
Attorneys
for Applicants: Mkata Attorneys.
Counsel
for Applicant Onyenze: Adv Dikolomela
Attorneys
for Applicant: Melford Monway Attorneys.
Counsel
for First Respondent: Adv I Lebeko.
Attorneys
for First Respondent: Office of the State Attorney.
Dates
of hearing: 05
th
, 06
th
and 07
th
July
2016.
Date
of judgment: 08
th
July 2016.
[1]
Section 12(1)(b) of the Constitution guarantees
the right to freedom and the right not to be detained without trial
to both citizen
and foreigners.
[2]
As long ago as November 2011, the Supreme Court
of Appeal in
Bula and Others v Minister
of Home Affairs and Other
s
2012 (4) SA
560
(SCA) referred to the “logistical logjam in the processing
of applications for asylum of people detained at Lindela is in
part
due to the absence of a RSDO at Lindela. It is a problem that is
easily resolved but it requires an act of will on the part
of the
department.”
[3]
In Onyenze para 26 to 35 deals at length with
applications for asylum in terms of section 21 when this is of no
relevance since
such application has already been made and granted
and rejected.
[4]
Paragraph 10 of founding affidavit.
[5]
Paragraph 19 of founding affidavit to review
application.
[6]
Contrary to the submission by the legal
representative for Onyenze that
Ersumo
supra
is authority for the proposition
that it is ‘impermissible’ for a court to enquire into
the question of the applicant’s
status as a refugee –
the court (at paragraph 7) specifically stated that it was
unnecessary to address such a submission.
[7]
Section 3(a).
[8]
Section 3(b).
[9]
Paragraph 16 of
Ersumo
supra
.
[10]
Paragraph 22.
[11]
See
Oudekraal
Estates (Pty) ltd v City of Cape Town and others
[2004]
3 All SA 1
;
2004 (6) SA 222
SCA.