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[2014] ZASCA 71
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Director-General: The Department of Home Affairs and Others v Dekoba (224/2013) [2014] ZASCA 71; 2014 (5) SA 206 (SCA); [2014] 3 All SA 529 (SCA) (28 May 2014)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 224/2013
Reportable
In the matter
between:
THE
DIRECTOR-GENERAL:
THE
DEPARTMENT OF HOME
AFFAIRS
................................................................
First
Appellant
THE MINISTER OF
HOME
AFFAIRS
....................................................................
Second
Appellant
LINDELA
DETENTION CENTRE:
THE
HEAD OF
CENTRE
............................................................................................
Third
Appellant
and
MUSENA
NICOLE DEKOBA
…........................................................................................
Respondent
Neutral
citation:
Director-General: Home Affairs v Dekoba
(224/2013)[2014] ZASCA 71 (28 May 2014)
Coram:
MTHIYANE DP, LEACH and WALLIS JJA, VAN ZYL and MATHOPO AJJA.
Heard
:
22 May 2014
Delivered
: 28
May 2014
Summary:
Refugee – holder of an asylum seeker permit in terms of s
22(1) of
Refugees Act 130 of 1998
– decision by Refugee Status
Determination Officer in terms of
s 24(3)(
c
) of
Refugees Act
taken
on appeal to Refugee Appeal Board – refugee attending
appeal hearing – her case not reached and permit extended –
decision by Refugee Appeal
Board
to dispose of her appeal on the basis that she did not appear a
nullity – refugee retained her status as refugee and
her
entitlement to a temporary asylum seeker permit – subsequent
arrest and deprivation of permit invalid – restoration
of
permit.
ORDER
On
appeal from:
Western Cape High Court (Ndita J sitting as court of
first instance):
1 Paragraph 2 of the
order of the court below is amended to read as follows:
‘
That First
Respondent is hereby directed, upon the Applicant presenting herself
at the Refugee Reception Office in Cape Town within
30 days of the
date of this order being served upon her, to restore to the Applicant
her asylum seeker permit in accordance with
s 22
of the
Refugees Act
130 of 1998
, which permit shall remain valid until the hearing and
final determination of her appeal to the Refugee Appeal Board against
the
decision by the Refugee Status Determination Officer rejecting
her application for asylum and the final determination of any further
appeal or review of the decision by the Refugee Appeal Board, whether
under the
Refugees Act or
the
Promotion of Administrative Justice Act
3 of 2000
.’
2 The appeal is
otherwise dismissed and the First and Second Appellants are directed
to pay the travel and accommodation costs of
and any out of pocket
expenses incurred by the
amici curiae
, such expenses to
include those incurred in respect of the attendance of three counsel.
JUDGMENT
Wallis
JA (Mthiyane DP, Leach JA and Van Zyl and Mathopo AJJA concurring)
[1]
Ms Dekoba, the respondent, is a Congolese national who, in either
2004 or 2006 (the date is uncertain although it is probably
the
former rather than the latter) came to South Africa from the
Democratic Republic of Congo (DRC) as a refugee, seeking asylum.
Whilst here she married another Congolese asylum seeker, like her
from Lubumbashi, and bore a son. Her residence in this country
was
lawful in terms of an asylum seeker’s permit issued in terms of
s 22 of the Refugees Act 130 of 1998 (the
Refugees Act). In
circumstances that will be described, that permit was withdrawn and
she was arrested and treated as an illegal immigrant to be
deported
in terms of the Immigration Act 13 of 2002 (the
Immigration Act). Her
deportation was stayed as a result of an urgent application to the
Western Cape High Court and an agreement between the parties
in those
proceedings. She was subsequently released from detention as a result
of the institution of the application leading to
these proceedings.
The issue in the appeal is whether she is entitled to have a
temporary asylum seeker’s permit issued to
her, or perhaps more
accurately restored to her. In the high court Ndita J held that she
was.
This appeal is with
her leave.
[2]
Ms Dekoba’s attorneys have withdrawn and there was initially a
prospect of the appeal being conducted without the benefit
of
submissions on her behalf. At the request of the court, Mr Anton Katz
SC of the Cape Bar stepped into the breach and agreed
to appear on
her behalf as
amicus curiae
, which he has done together with
Mr Simonsz and Ms Bizony. We are grateful to them for their
assistance and the detailed and helpful
submissions they made to the
court.
[3]
As
already noted it is unclear exactly when Ms Dekoba came to this
country, but on 26 June 2006 she was interviewed by a Refugee
Reception Officer in terms of
s 21(2)(
c
)
of the
Refugees Act. Thereafter
a Refugee Status Determination
Officer rejected her application for asylum. The reasons for this do
not emerge from the record,
although, in view of the course that the
matter followed thereafter, it seems likely that the decision was
that the application
was unfounded.
[1]
She appealed against this decision to the Refugee Appeal Board (the
Board) established in terms of
ss 12
to
14
of the
Refugees Act and
in
the meantime her permit was extended. This case arises from the
manner in which the Board dealt with her appeal. Ms Dekoba contends
that she remains an asylum-seeker entitled to the restoration of her
permit and the protection of the
Refugees Act, whereas
the first
appellant, the Director General: Home Affairs (the D-G), maintains
that she has lost that status and become an illegal
immigrant and is
subject to deportation if representations made on her behalf in terms
of the
Immigration Act are
unsuccessful.
[4]
According
to Ms Dekoba the course of events in regard to the appeal was the
following. On 22 January 2009 she received a notice
saying that her
appeal would be heard by the Board on 17 February 2009 at a place
cryptically described in the notice as ‘Refugee
Reception’.
At that time the refugee reception office in Cape Town was situated
in Airport Industria,
[2]
which is close to Nyanga and in the papers is referred to as the
Nyanga Refugee Centre. She went there on 17 February 2009 together
with her husband. She said that an official told them to go instead
to the offices of the Department of Home Affairs in Barrack
Street,
Cape Town, which they did. There they waited all day in a queue but,
along with a number of others waiting there for the
same purpose, Ms
Dekoba was not called in for her appeal. At the end of the day the
waiting asylum-seekers were told that their
appeals would be dealt
with on a later date and in the meantime their permits were extended
for three months and stamped to reflect
this. At regular intervals of
either three or six months thereafter she returned to the refugee
reception office and her permit
was further extended. This continued
for more than two and a half years after the abortive appeal.
[5]
Continuing Ms Dekoba’s narrative of events, on 14 October 2011
she again returned to the refugee reception office, which
by this
stage had been moved to Maitland, in order to have her permit further
extended. It was due to expire the following day.
Instead the permit
was confiscated and she was arrested as an illegal immigrant. At the
same time she was served with a document
reflecting that her appeal
had been dismissed on 4 May 2009 in consequence of her non-appearance
at the appeal hearing. She was
initially detained at Maitland Police
Station and thereafter at Pollsmoor Prison. She was released on 2
November 2011 after being
given and signing a notice of departure.
She did not leave by the stipulated date of 12 November 2011, as by
that date she had
lodged representations to stay in this country in
terms of
s 8
of the
Immigration Act. Consequently
she was re-arrested
on 15 November 2011 and taken to Lindela Detention Centre in
Krugersdorp. That resulted in an urgent application
being launched
the following day in which a consent order was made that she would
not be deported pending the outcome of her representations.
It also
provided for her to be removed from the detention centre to a ‘safe
house’ and for her to be reunited with
her son. Whilst there,
both she and her son fell ill and there were problems with the
quality of the food provided to them. The
present application was
launched, as a matter of urgency, on 23 December 2011. An agreement
was then reached that Ms Dekoba would
be released pending the
determination of the application.
[6]
The
facts as set out by and on behalf of Ms Dekoba
[3]
were not seriously disputed. The deponent to the answering affidavit
on behalf of the appellants one Newton John Booysen, a Chief
Control
Immigration Officer in the department of Home Affairs in Maitland,
Cape Town, had no personal dealings with or knowledge
of her case. He
repeatedly said that he had no knowledge of the facts as set out by
or on behalf of Ms Dekoba, but then denied
them. That was improper,
as he advanced no facts justifying his denials. There was no
appreciation on his part that a deponent,
who denies the facts
deposed to on oath by witnesses for the other party, accuses those
witnesses of lying and lying on oath is
a serious criminal offence.
One expects greater care on the part of a senior government official
when deposing to an affidavit.
As it is these denials can be
disregarded.
[7]
The case for the appellants hinged around the decision by the Board
reflected in the document handed to Ms Dekoba on the day
of her
arrest. Based on its contents Mr Booysen contended that there was an
appeal hearing that Ms Dekoba did not attend, notwithstanding
having
been given notice to do so. As a result the appeal was disposed of in
her absence. The process of dealing with her application
for asylum
was thereby completed and her continued right to an asylum seeker’s
permit had terminated. If she wished to remain
in South Africa
thereafter her only course of action was by way of representations to
the D-G in terms of
s 8
of the
Immigration Act. Those
representations
had been made and were under consideration. In the meantime the D-G
agreed not to deport her until the final decision
has been made in
respect of those representations. A curious feature of the case is
that, notwithstanding the fact that two and
a half years have elapsed
since those representations were lodged with the D-G, he has not as
yet made any decision on them.
[8]
The immediate problem with this argument, crucial to the outcome of
this appeal, is that it depends entirely upon Ms Dekoba’s
appeal having been disposed of by the Board. But that was
inconsistent with her evidence. If that evidence was truthful then
she
had not had an appeal at all. As regards its truth there was no
direct evidence tendered to rebut it. Mr Booysen complained that
her
factual allegations were ‘extremely vague’ but there was
no justification for that complaint. The immediate and
obvious
question was whether the Board had conducted its hearings on 17
February 2009 at the Nyanga Refugee Centre or at the Barrack
Street
offices of the Department of Home Affairs. The person to deal with
that was the Board member who had allegedly been responsible
for
conducting this appeal, a Mr Damstra. But no affidavit from him was
forthcoming. One would have expected him to be able to
produce a
diary or other record of his activities that day and to explain what
had been done in relation to Ms Dekoba’s appeal.
He could also
have explained the steps taken to ascertain whether Ms Dekoba was
present and whether, on her alleged non-appearance,
enquiries were
made of the officials and time afforded to her against the
possibility that she had been delayed or encountered
some unexpected
problem. The need for that in the circumstances that prevailed at the
Nyanga Refugee Centre, as described below,
was apparent. Instead the
appellants contented themselves with an affidavit from someone who
had no personal knowledge of what
had happened on that day.
[9]
It
will be recalled that Ms Dekoba said that she and her husband
initially went to the Nyanga Refugee Centre on 17 February 2009
and
were directed to go to the Department’s offices in central Cape
Town. Mr Booysen accepted that the venue for hearing
appeals does
change from time to time after notices of appeal have been issued,
but said that a venue would not change on the day
of hearing, nor
would an appellant be informed of a change of venue on the day of an
appeal. One wonders how he could be so categorical
about this point.
The material available about the situation at the Nyanga Refugee
Centre suggests that circumstances there were
such that the need to
move appeals to more acceptable premises might easily have arisen.
Those circumstances and the situation
in dealing with refugees in
Cape Town have been described in several judgments of the Western
Cape High Court and this Court.
[4]
[10]
In
Intercape
Ferreira
[5]
Rogers AJ referred to a period in January and February 2008 when
asylum seekers and applicants for permits were bussed from the
refugee reception centre, then situated in Customs House on the
Foreshore to the Department’s Barrack Street offices. That
judgment paints a stark picture of the situation in 2008 and 2009 at
the Nyanga Refugee Centre in the Airport Industria premises.
It is
one of massive over-crowding; inadequate capacity to deal with the
numbers of asylum-seekers (some 600 per day on average);
noise, filth
and crime; lack of ablution and sanitation facilities; roads blocked
by the comings and goings of taxis and cars,
police vehicles and
ambulances; extensive illegal street trading; vehicles and crowds
jostling for space on roads and pavements;
and regular outbreaks of
crowd violence generating the need for police intervention, sometimes
extreme. These conditions led Rogers
AJ to interdict the Department
from continuing to operate the refugee reception centre at the
Airport Industria premises.
[11]
These circumstances could have contributed to the situation to which
Ms Dekoba and her husband testified, that the appeal hearing
was
redirected to Barrack Street. However, it is unnecessary to speculate
further in that regard because there is one feature of
their evidence
that convincingly demonstrates that their version must be truthful.
It is their evidence that on 17 February 2009,
at Barrack Street, and
on a number of occasions thereafter prior to 14 October 2011, at
either Nyanga Refugee Centre or Maitland,
her permit was renewed.
That would mean that on a minimum of six and a maximum of 11
occasions, depending on whether the renewals
were for three or six
month periods, she attended on the Department’s officials and
they renewed her permit without demur.
If she was not telling the
truth about this then all that Mr Booysen needed to do in order to
demonstrate her dishonesty was to
produce the confiscated permit. Far
from doing that he admitted the renewals of the permit.
[12]
That admission establishes that Ms Dekoba indeed went to Barrack
Street on 17 February 2009. There was absolutely no reason
for her to
have done this unless she was told to do so by the Department’s
officials. She knew the Nyanga Refugee Centre
and, notwithstanding
the cryptic terms of the notice of appeal, knew that she had to
report there for her appeal hearing. Her record
of regularly renewing
her permit at the appropriate place shows that she knew where she had
to go in order to deal with the Department
in relation to her asylum
application and went to the correct place whenever necessary. It is
inconceivable that on this day she
would have gone to the wrong place
for her appeal hearing. It is even more inconceivable that if she had
done so she would have
been permitted to queue there for the whole
day and at the end of it have had her permit renewed. After all the
Barrack Street
offices were not the place that dealt with permit
renewals.
[13]
In those circumstances it is plain that Ms Dekoba did not have the
appeal that she was entitled to. The purported disposition
of the
appeal on 4 May 2009 by Mr Damstra was void, because it was based on
the proposition that she had not attended for her appeal
hearing.
That was not the case. How Mr Damstra came to produce what purported
to be a record of the appeal and a decision is unexplained.
But it
matters not.
Appellant’s
counsel rightly accepted that if Ms Dekoba did attend her appeal, but
was not called in and the appeal was disposed
of on the basis that
she was absent and without hearing her, the purported decision could
not be effective to dispose of the appeal
and it remained pending.
[14]
That
conclusion disposes of the contention that the process under the
Refugees Act was
complete after the Board purported to decide the
appeal. It was not. As it was incomplete, Ms Dekoba remained an
applicant for
asylum and, in terms of the decisions of this Court in
relation to a number of similar cases,
[6]
she was an asylum seeker and entitled to an asylum seeker’s
permit. She did in fact have one and, as no hearing of her appeal
had
occurred prior to her attending at the Refugee Reception Office in
Maitland on 14 October 2011, she was entitled to have her
permit
extended until arrangements could be made for her appeal. Her arrest
and the removal of her permit were entirely unwarranted
as was her
subsequent treatment.
[15]
The
proper order in those circumstances was one restoring the status quo
as it existed on 14 October 2011. On that date Ms Dekoba
was an
asylum seeker in possession of an asylum seeker’s permit and
awaiting an appeal against the decision by the Refugee
Status
Determination Officer in relation to her application for asylum. It
was not appropriate for the court below to order that
she be
re-issued with a permit, as she should never have been deprived of
one. The proper order, albeit that its effect would be
similar, was
that her existing permit be restored to her and to order that such
permit would remain valid while the appeal process
was completed and,
depending upon its outcome, any further proceedings were taken by way
of appeal or review, either under the
Refugees Act or
in terms of
PAJA.
[7]
Counsel were agreed that in the event of our concluding that Ms
Dekoba had been denied an appeal the order of the court below
should
be amended to reflect this.
[16]
I turn
then to the issue of costs. Counsel appeared at the request of the
Court on behalf of Ms Dekoba. Their contribution
was extremely
helpful. Mr Katz and Ms Bizony’s expenses were met by the Cape
Bar’s
pro
bono
fund. Mr Simonsz has paid his own expenses. In our view neither the
Cape Bar nor Mr Simonsz should be out of pocket as a result
of
counsel assisting the court. It is appropriate in those circumstances
to order the unsuccessful appellants to bear the travelling
and
accommodation costs and any out of pocket expenses of the three
counsel who appeared as
amici
curiae
.
[8]
[17]
Before ending this judgment it is appropriate to comment briefly on
the course of events in this case. First Ms Dekoba was
arrested as an
illegal immigrant at a time when she was in possession of a valid
asylum seeker’s permit that still had a
day to run before its
expiry. Second, she was arrested without any investigation of the
circumstances arising from the fact that
her permit had been
repeatedly extended from 17 February 2009 to 15 October 2011, when
the decision by the Board purported to have
been given on 4 May 2009.
That cried out for investigation, but none was undertaken. Third,
when her detention and the attempts
to deport her were challenged
there was no attempt by the D-G and the officials of the Department
of Home Affairs to place the
full facts before the court through the
officials responsible for these events. For example, one D D Gcuze
signed the warrant for
her detention, but we have no affidavit from
him or her explaining why it was suddenly decided to implement the
purported decision
by the Board. Even had that decision been valid at
the time it was taken, the lengthy delay in implementing it meant
that the situation
cried out for a further investigation of Ms
Dekoba’s circumstances and the appropriateness of deporting
her. That could readily
have been done without detaining her. After
all, the Department was not dealing with someone who had been seeking
to evade their
scrutiny, but with someone who had been co-operating
with it.
[18] That brings me
to the final point. Once it became apparent that Ms Dekoba claimed
not to have been given an appeal hearing,
that claim should have been
fully investigated by the Department. It was apparent from the
purported decision by the Board that
she had not been heard on her
appeal. Why then did the Department not immediately make arrangements
for her to have the appeal
and ensure that she would be present and
appropriately assisted (her grasp of English according to the
affidavits is extremely
limited and the
lingua franca
of the
DRC is French)? Had they done so instead of claiming that her rights
had been exhausted there would have been no need for
this litigation
and Ms Dekoba’s refugee status would long since have been
resolved. Instead, over five years after her appeal
was due to be
heard, like a game of snakes and ladders, she finds herself back
where she was on 17 February 2009, awaiting a hearing
of her appeal.
In the meantime her son is now seven years old and presumably should
have started his school career.
We
do not know the fate of her husband’s application for asylum or
their present circumstances. Indeed we are uncertain of
her
whereabouts or when or how she will come to learn of the decision by
this Court. All that could easily have been avoided had
the
Department’s officials taken a practical and sensible view of
matters instead of engaging in costly and, as it turns
out, fruitless
litigation. This is not what we are entitled to expect from our
public servants.
[19] In the result I
make the following order:
1 Paragraph 2 of the
order of the court below is amended to read as follows:
‘
That First
Respondent is hereby directed, upon the Applicant presenting herself
at the Refugee Reception Office in Cape Town within
30 days of the
date of this order being served upon her, to restore to the Applicant
her asylum seeker permit in accordance with
s 22
of the
Refugees Act
130 of 1998
, which permit shall remain valid until the hearing and
final determination of her appeal to the Refugee Appeal Board against
the
decision by the Refugee Status Determination Officer rejecting
her application for asylum and the final determination of any further
appeal or review of the decision by the Refugee Appeal Board, whether
under the
Refugees Act or
the
Promotion of Administrative Justice Act
3 of 2000
.’
2 The appeal is
otherwise dismissed and the First and Second Appellants are directed
to pay the travel and accommodation costs of
and any out of pocket
expenses incurred by the
amici curiae
, such expenses to
include those incurred in respect of the attendance of three counsel.
M J D WALLIS
JUDGE OF APPEAL
Appearances
For
appellant: E A De Villiers-Jansen
Instructed by:
State Attorney
Cape Town and
Bloemfontein
For
respondent: Anton Katz SC (with him David Simonsz and
Robin Bizony) as
amici curiae
.
[1]
Section 24(3)(
c
)
of the
Refugees Act.
[2]
Intercape
Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs
and Others
2010
(5) SA 367
(WCC)
[3]
The founding affidavit was deposed to by her husband and, after her
release, she deposed to an affidavit confirming its correctness.
[4]
Kiliko
and Others v Minister of Home Affairs and Others
2006
(4) SA 114
(C);
Intercape
Ferreira, supra; 410 Voortrekker Road Property Holdings CC v
Minister of Home Affairs and Others
[2010]
4 All SA 414
(WCC);
Minister
of Home Affairs and Others v Scalabrini Centre and Others
2013
(6) SA 421
(SCA).
[5]
Supra fn 2, paras 30 -32
[6]
Arse
v Minister of Home Affairs
2012 (4) SA 544
(SCA);
Bula
and Others v Minister of Home Affairs and Others
2012 (4) SA 560
(SCA) and
Ersumo
v Minister of Home Affairs
2012 (4) SA 581 (SCA).
[7]
The
Promotion of Administrative Justice Act 3 of 2000
.
[8]
Such an order was made in
Oos-Randse
Administrasieraad v Rikhoto
1983 (3) SA 595
(A) at 610 and in
Paola
v Jeeva NO
[2003] ZASCA 100
;
2004
(1) SA 396
(SCA) para 27.