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[2010] ZAWCHC 611
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Tshambila and Others v Minister of Home Affairs and Others (20633/10) [2010] ZAWCHC 611 (8 December 2010)
Republic
of South Africa
In
the Western Cape High Court of South Africa
(Western
Cape High Court, Cape Town)
In
the matter between:
Case
No. 20633/10
llunga
Tshambila
….........................................................................
First
Applicant
Maivuno
Kituza
…......................................................................
Second
Applicant
Edwin
Mwanza
…....................................................................
Third
Applicant
Versus
The
Minister of Home Affairs
….............................................
First
Respondent
The
Director of the Department of Home Affairs
….............
Second
Respondent
The
Refugee Reception Officer, Maitland
…..........................
Third
Respondent
Mr
Richard Sikakane, Director of the
Refugee Affairs Office,
Maitland
…........................................
Fourth
Respondent
Judgment
delivered: 8 December 2010
LOUW
J
[1]
The applicants are asylum seekers in the Republic of South Africa.
They seek orders in the following terms:
2.
Declaring that the Respondents' refusal to allow asylum seekers to
renew the permits issued to them in terms of
Section 22
of the
Refugees Act 130 of 1998
at the Respondents' office in Maitland is
unlawful and in contempt of court;
3.
Directing the Respondents to renew upon application at Maitland the
Section 22
permits of asylum seeker applicants presently living in
Cape Town whose permits have been issued in another centre;
4.
Ordering the Fourth Respondent to pay the Applicants' costs on the
attorney and own client scale de bonis propriis.
[2]
During the course of argument, Mr. Katz, who appeared with Mr.
Simonz on behalf of the applicant informed me that the third
applicant is no longer in South Africa and is consequently not
seeking any relief. In what follows I will refer to the first
and
second applicants as the applicants.
[3]
The application was launched on 16 September 2010. When the matter
came before Moosa, J in the motion court on 22 September
2010 an
interim order was made by agreement providing for a time table for
the filing of papers and the postponement of the application
for
hearing on the semi-urgent roll on 22 November 2010. It was further
ordered by agreement that
Upon
application, the respondents shall extend the
section 22
permits of
the applicants and any other person entitled to an extension thereof
for so long as their permits may lawfully be
extended, at the Cape
Town Refugee Reception Centre, currently located in Voortrekker
Road, Maitland, Western Cape.
[4]
I was informed during argument that the permits of the applicants
have since been extended as envisaged in the interim order.
[5]
The only substantive issue that remains is that of the respondents'
contempt of court and the issue of costs.
[6]
Ms Williams on behalf of the respondents raised the following two
preliminary issues and applied for certain passages in the
applicants' papers to be struck out:
The
respondents contend that the launching and replying papers contain
inadmissible hearsay evidence and ask for certain passages
to be
struck out.
The
respondents further contend that the replying papers introduce a
host of new matter which they ask to be struck out.
[7]
In the light of the conclusion to which I have come, it is not
necessary to decide the respondents' application to strike
out, save
to say that the further instances of alleged non-compliance that are
raised in reply do not constitute the basis upon
which the relief
was sought in the first instance and are therefore not considered in
this judgment. Since at the very least
the facts of each case where
an application is alleged to have been refused will be different, a
case for a class action or in
terms of section 38 (d) of the
Constitution has in my view not been made out.
[8]
In order to establish that the respondents have committed the crime
of contempt of court, the applicants must prove, beyond
reasonable
doubt, the following:
1.
The order of court;
2.
Service of the order of court;
3.
Non-compliance with the order; and
4.
Wilfulness and mala fides on the part of the respondents.
[9]
The applicants' case is that the respondents have acted in contempt
by not complying with the following two orders (the orders)
made by
this court:
1.
An order made by agreement by Albertus AJ on 2 August 2001 in the
case of
Aden
and Others v The Minister of Home Affairs and Anor
(the
Aden order) in the following terms:
1.
The Respondents undertake to renew all permits in terms of Section
41 of the Aliens Control Act 96 of 1991 and
Section 22
of the
Refugees Act 130 of 1998
as well as exemptions in terms of
Section
28
(2) of the Aliens Control Act and identity documents in terms of
Section 30 of the Refugee Affairs Act at any office of the
Department
where the asylum seekers or refugees are living.
The
Respondents will issue a directive to their various offices to give
effect to this undertaking.
The
Applicants will withdraw the applications launched under Case No.
9179/00 and 167/01.
Each
party shall pay its own costs.
2.
An order made by agreement by Yekiso, J on 22 October 2008 in the
case
Hirsi
and Others v The Minister of Home Affairs and Others
(the
Hirsi order), in the following terms:
1.
The Third Respondent's officials' refusal to renew in Cape Town the
Section 22 permits of Cape Town based asylum seekers who
were
originally granted Section 22 permits at other centres is unlawful.
2.
That the Third Respondent not refuse or fail to renew the Section 22
permits of Cape Town based asylum seekers simply because
the said
permits have been issued in different centres.
3.
That the Respondents immediately renew the Section 22 permits of all
asylum seekers on application pending the processing and
finalisation of their applications for asylum.
4.
The Respondents pay the Applicants' costs on the party and party
scale.
[10]
While both orders refer to
Section 22
of the
Refugees Act 130 of
1998
, the Aden order contains a reference to the Aliens Control Act,
96 of 1991 which was repealed in its entirety by the
Immigration
Act, 13 of 2002
. Nothing turns on the latter.
[11]
The Aden order provides that the respondents shall renew all permits
in terms of
section 22
at any office of the department where the
asylum seekers are living. The Hirsi order directs that the
respondents shall not refuse
or fail to renew the
section 22
permits
of Cape Town based asylum seekers simply because the said permits
have been issued in different centres. Although not
all the current
respondents were parties to the matters in which the orders were
made, it was accepted by the respondents during
argument that for
purposes of this application, they were all bound by both the
orders.
[12]
The Long title of the
Refugees Act notes that
the objects of the Act
include to provide for the reception into South Africa of asylum
seekers; to regulate applications for
and recognition of refugee
status A person seeking recognition as a refugee in South Africa,
must apply for asylum. An application
for asylum is regulated by the
provisions of
Section 21
of the
Refugees Act in
the following terms:
Application
for asylum
21
(1) An application for asylum must be made in person in accordance
with the prescribed procedures to a Refugee Reception Officer
at any
Refugee Reception Office.
[13]
Pending the outcome of an application for asylum, the asylum seeker
must be issued with an asylum seeker permit. This application
concerns the extension, in terms of
section 22
(3) of the
Refugees
Act, of the
periods for which asylum seeker permits were originally
issued to the applicants in terms of
section 22
(1) of the
Refugees
Act or
was later extended in terms of
section 22
(3).
Section 22
provides as follows:
Asylum
seeker permit
22(1)
The Refugee Reception Officer must, pending the outcome of an
application in terms of
section 21(1)
, issue to an applicant an
asylum seeker permit in the prescribed form allowing the applicant
to sojourn in the Republic temporarily,
subject to any conditions,
determined by the Standing Committee, which are not in conflict with
the Constitution or international
law and are endorsed by the
Refugee Reception Officer on the permit.
2...
3.
A Refugee Reception Officer may from time to time extend the period
for which a permit has been issued in terms of subsection
(1), or
amend the conditions subject to which a permit has been so issued.
4.
The permit referred to in subsection (1) must contain a recent
photograph and the fingerprints or other prints of the holder
thereof as prescribed.
5.
A permit issued to any person in terms of subsection (1) lapses if
the holder departs from the Republic without the consent
of the
Minister.
(6)
The Minister may at any time withdraw an asylum seeker permit if-
a)
The applicant contravenes any conditions endorsed on that permit; or
b)
The application for asylum has been found to be manifestly
unfounded, abusive or fraudulent; or
c)
The application for asylum has been rejected; or
d)
The applicant is or becomes ineligible for asylum in terms of
section 4 or 5.
[14]
It is common cause that their original section 22 permits were
issued to the applicants at Refugee Receptions Offices other
than
the Local Refugee Affairs Office in Maitland, Cape Town (the
Maitland Office). The first applicant's original permit was
issued
in Braamfontein, Johannesburg. The second applicant's original
permit was issued in Pretoria.
[15]
The orders clearly do not require the respondents to simply approve
the extension of the section 22 permits merely upon the
application
being made. The respondents and the relevant officials must consider
each application and make a decision after applying
his or her mind
to the merits of the application. Seen in the context in which the
orders were made, the orders prohibit the
decision maker or relevant
official at the Maitland Office who considers an application from an
applicant who lives or is based
in Cape Town, to refuse or fail to
extend the permit for no reason other than that it was originally
issued by at Refugee Reception
Office other than the Maitland
Office.
[16]
It is the applicants' case that the respondents, through their
officials and employees, have done exactly that and have not
complied with the Aden and Hirsi orders by refusing or failing to
extend their section 22 permits for no reason other than that
the
permits were originally issued at other offices and not at the
Maitland Office.
[17]
It is common cause that the first applicant's permit was extended
more than once on previous occasions at the Maitland Office
prior to
the events which have given rise to this application. The second
applicant's permit had, however, not previously been
extended at the
Maitland Office. The first extension in her case at that office
occurred on 6 April 2010. As discussed hereunder,
the date stamp
reflecting the date as 5 April 2010, is a clear mistake.
[18]
The fourth respondent has deposed to an answering affidavit on
behalf of himself and the three other respondents. The respondents
do not dispute the existence of the Aden and Hirsi orders and the
fact that they had knowledge of the orders. The respondents,
however, deny non-compliance with the orders and contend in any
event, that if there were non-compliance, that any breach of
the
orders was not committed deliberately and mala fide.
[19]
In
Fakie
NO v CCII Systems (Ptv) Ltd
2006
(4) (SCA), Cameron JA at 333C; 344 H-J, par [9], [10] and [42]
stated:
[9]
The test for when disobedience of a civil order constitutes contempt
has come to be stated as whether the breach was committed
'deliberately and mala fide.' A deliberate disregard is not enough,
since the non-complier may genuinely, albeit mistakenly,
believe
him-or herself entitled to act in the way claimed to constitute the
contempt. In such a case good faith avoids the infraction.
Even a
refusal to comply that is objectively unreasonable may be bona fide
(though unreasonableness could evidence lack of good
faith.
[10]
These requirements - that the refusal to obey should be both wilful
and mala fide, and that unreasonable non-compliance,
provided it is
bona fide, does not constitute contempt - accord with the broader
definition of the crime, of which non-compliance
with civil orders
is a manifestation. They show that the offence is committed not by
mere disregard of a court order, but by
the deliberate and
intentional violation of the court's dignity, repute or authority
that this evinces. Honest belief that non-compliance
is justified or
proper is incompatible with that intent.
…
...
[42]
(c)
(T) he applicant must prove the requisites for contempt (the order;
service or notice; non-compliance) beyond a reasonable
doubt;
(d)
But, once the applicant has proved the order, service or notice, and
non-compliance, the respondent bears the evidentiary
burden in
relation to wilfulness and mala fides: should the respondent fail to
advance evidence that establishes a reasonable
doubt as to whether
non-compliance was wilful and mala fide, contempt will have been
established beyond reasonable doubt.
[20]
Mr Katz submitted on behalf of the applicants that the failure of
the first, second and third respondents to depose to an
answering
affidavit is fatal to their case because they failed to advance
evidence in discharge of the evidentiary burden they
bear in
relation to wilfulness and mala fides.
(Fakie
NO
at 344J - 345 A: par [42]).
[21]
The fourth respondent stated in his answering affidavit that while
the first respondent bears the ultimate responsibility
for the
operation of the Maitland Office, his primary function as the head
of the Maitland Office is the overall management and
supervision of
the officials of the department employed at the Maitland Office and
that he is responsible for the implementation
of the Legislation
there. The fourth respondent further states that he was duly
authorised by all the respondents to depose to
the answering
affidavit and that all the respondents oppose the application. These
assertions by the fourth respondent are not
disputed by the
applicants.
[22]
The fourth respondent has personal knowledge of what occurred at the
Maitland Office during the relevant time and he has
testified on
behalf of the respondents. It cannot be said that there is no
evidence by the respondents. While it is undoubtedly
correct, as was
submitted by Mr Katz, that the fourth respondent cannot make an
affidavit on behalf of the other respondents
in the sense of giving
evidence on matters which are within the knowledge only of the other
respondents, this is not what the
fourth respondent has sought to
do. The fourth respondent testified to matters which he says are
within his knowledge. There
is no reason why the other respondents
cannot rely on such evidence to discharge the evidentiary burden
resting upon them. The
question in regard to this point remains
whether on all the evidence it has been proved beyond reasonable
doubt that the respondents'
conduct was wilful and mala fide.
[23]
The first applicant, who is from the Democratic Republic of the
Congo, relies on an incident which he says occurred on Friday
27
August 2010. It is common cause that this was during the period of
the nationwide strike by civil servants which lasted from
19 August
to 6 September 2010.
[24]
The fourth respondent explains in his answering affidavit that, in
order to allow for an even spread of applications to be
processed
daily and to reduce xenophobic tensions, persons of different
nationalities are served at
the
Maitland Office on different days of the week. Congolese asylum
seekers, together with those from Burundi, Rwanda, Congo -
Brazzaville, Uganda and Kenya are served on a Monday. Tuesdays are
reserved Somalis. Wednesdays are mixed days and any nationality
except Zimbabweans are served. Thursdays and Fridays are reserved
exclusively for Zimbabwean asylum seekers. The first applicant
is
aware of this arrangement. He does not explain why he came to the
Maitland Office on a day reserved for Zimbabweans.
[25]
The first applicant recounts the incident on which he relies as
follows:
'I
went to the Third and Fourth Respondents' premises at Maitland to
renew my permit. Although there was a strike in progress,
officials
were renewing asylum seeker permits. An official of the Respondents
looked at my papers while I was standing in the
queue and stated
that I could not be helped as I should go to Johannesburg to renew
my permit. He flatly refused to assist me
on these grounds.'
[26]
The fourth respondent who decided not to go on strike explains that
he was the only person present at the Maitland Office
during the
strike who had the authority to extend the section 22 permits.
Because of the circumstances created by the strike,
he did so
manually and he extended approximately 600 permits per day. As a
result of the exigencies of the situation, the fourth
respondent
explains, he was not able to extend the section 22 permits of all
those who attended the Maitland Office on each day
during the
strike. He was forced by the circumstances to make a choice for the
reasons which he explained in his answering affidavit
as follows:
49.3.
When a section 22 permit has been issued at a different centre and
the asylum seeker attends at the Cape Town centre for
an extension
thereof, his or her particulars are verified either via a computer
enquiry or by fax with the other centre. It was
not possible to
obtain information by facsimile transmission during the strike
because, to the best of my knowledge and belief,
all the other Home
Affairs offices were not operational. Although I could access
information held at other offices electronically,
using the computer
system would have slowed the process down considerably with the
result that even fewer people would have been
assisted during the
strike.
49.4.
I consequently took the decision to only extend permits during the
strike period to asylum seekers who had submitted their
application
for asylum to the Cape Town office and who were known to that
office. The strike called for expediency and I at no
stage breached
any court order relating to the extension or renewals of section 22
permits. Despite the strike, huge crowds of
people descended at the
Maitland office and they were advised by me that only those asylum
seekers who had applied for asylum
in Cape Town would have their
section 22 permits extended at the Cape Town office while the strike
was underway. The asylum seekers
who had had their permits issued
elsewhere were requested to return to the Cape Town office for the
extension of their permit
once the strike ended. Not one person was
told to apply for the renewal of their permits at a different
centre. They were also
given the assurance that in the event of
their permits expiring during the strike period, no steps would be
taken against them.
Stated differently, and although an asylum
seeker's section 22 permit may have expired in the strike period, he
or she would
not be arrested or prejudiced in any manner.
[27]
The official who allegedly told the first applicant while standing
in the queue, to go to Johannesburg for the extension
and who is
alleged to have refused for that reason to assist the first
applicant is not identified by the applicant. It could
not have been
the fourth respondent who was the only person present at the
Maitland Office with the authority to extend the permit.
If it is
accepted that the permit was not extended on 27 August 2010 because
it had originally been issued elsewhere, it was
done for an
acceptable reason namely that because of the strike the fourth
respondent was forced by circumstances to manually
extend only the
permits of those applicants whose permits had originally been issued
in Cape Town. In my view the respondents
have established a
reasonable doubt as to whether the non-compliance with the orders
was wilful and mala fide.
[28]
The second applicant relies on three incidents of alleged
noncompliance which is said to have occurred:
On
an unspecified date prior to 6 April 2010 (the first occasion);
On
2 August 2010 (the second occasion);
On
17 August 2010 (the third occasion).
I
shall deal with each of these incidents in turn.
[29]
The first incident is alleged to have occurred on date prior to 6
April 2010. The second applicant states that she fled the
DRC in
early 2008 and arrived in South Africa on 3 February 2008. She
applied for and was granted an asylum seeker temporary
permit at the
Pretoria Reception Office. She moved to Cape Town in March 2010. She
states that initially she was 'refused assistance'
in Cape Town. She
does not disclose what reason was given for her being refused
assistance. She then approached the Legal Resources
Centre, who in
the person of Mr. Kerfoot sent a letter to the fourth respondent
(Annexure MK 2). The letter is undated but in
reply it is stated
that it was dated 22 April 2010. The letter records the second
applicant's instructions which include that
she had approached the
Maitland Office approximately three weeks earlier in order to extend
her section 22 permit and that
'(a)
n official working there informed her that they were unable to
assist her due to the fact that her permit was issued in Pretoria.'
The
letter further draws the fourth respondent's attention to the Hirsi
order and a copy of the order is annexed. The letter then
continues
'In
light of above kindly ensure that the necessary arrangements are
made for [the second applicant's] file to be transferred
to Maitland
and that she is assisted with the renewal of her section 22 permit
as a matter of extreme urgency.'
[30]
The applicant states that after the letter was sent, she was
assisted. It is common cause that the second applicant's permit
was
extended at the Maitland Office to 2 August 2010. The stamp
reflecting the extension is dated 5 April 2010, a Sunday, but
this
is clearly a mistake and the extension must have occurred on the
next working day, that is Monday 6 April 2010.
[31]
The launching papers therefore do not contain evidence on oath that
the application for renewal on the first occasion was
refused
because the second applicant's original permit had been issued in
Pretoria. The lack of evidence under oath is not remedied
in reply.
The reference by Mr. Kerfoot in his affidavit to the contents of his
letter MK 2, does not take it further than that
he was instructed by
the second applicant as to the reason for the refusal to assist.
Although the second applicant did file
a confirmatory affidavit in
reply, she does not deal with and confirm her instructions as set
out in the letter MK 2.
[32]
As is pointed out by the fourth respondent in his answering
affidavit, according to the endorsements on the second applicant's
section 22 permit 'MK 1', the permit was last extended outside Cape
Town on 4 January 2010 at the Tirro Reception Office, with
an expiry
date on 4 April 2010. 4 April 2010 was a Saturday and the permit was
extended at the Maitland Office on Monday 6 April
2010, but was
incorrectly dated 5 April 2010 (a Sunday). The second applicant's
evidence regarding Mr. Kerfoot's undated letter
MK 2 is confusing
and does not accord with the rest of the evidence. According to the
second applicant, the letter preceded the
extension of her permit on
5/6 April 2010. Yet it is alleged that the letter was only generated
on Ms Draga's computer on 22
April 2010.
[33]
In my view, the evidence that the extension of the permit was
refused on the first occasion for the reason that the permit
was
originally issued in Pretoria is not reliable and does not establish
non-compliance with the orders on the first occasion.
[34]
The second applicant alleges that she returned to the Maitland
Office on 2 August 2010 for the further extension of her permit,
but
was refused. She says that she was given a handwritten note (MK 3)
which reads:
Client
has a decision pending; and as such must go to Pretoria to collect.
Her file will not be transferred with a pending decision.
[35]
The fourth respondent states that the respondents keep detailed
statistics of all persons who attend the Maitland Office
and that
there is no record of the second applicant attending the Maitland
Office on 2 August 2010. The fourth respondent denies
that he gave
the note to the second applicant and after making enquiries, the
staff at the Maitland Office also denied having
done so. While the
fourth respondent denies receiving the letter written by Mr. Kerfoot
on 10 August 2010 (MK 4), he curiously
does appear to have replied
to the letter in an e-mail on 23 August 2010 to Ms Billy of the LRC.
[36]
If it is accepted, however, that the second applicant did receive
the note MK 3 from an official at the Maitland Office,
it is not at
all certain that the note is evidence of non-compliance with the
orders. The note does not state that the reason
for the refusal or
failure to extend the permit was because the permit had originally
been issued in Pretoria. The reason given
in the note is that the
second applicant 'has a decision pending' and that because her file
will not be transferred with a pending
decision, she must go to
Pretoria to collect. It is not clear what it is she has to collect:
her file or the extension of the
permit.
[37]
The second applicant has consequently not established noncompliance
with the orders on the second occasion. In any event,
even if the
unnamed official did not comply with the orders, there is at least a
reasonable doubt that he did so wilfully and
mala fide.
[38]
The third occasion relied upon by the second applicant was Tuesday
17 August 2010. He says the following:
15.
I tried to get my permit extended again on 17 August 2010 at the
Fourth Respondent's offices but was again told I would have
to go to
Pretoria.
16.
I cannot afford to travel to Pretoria.
17.
I cannot understand why the Respondents seem to be obsessed with the
fact that in my case 'a decision is pending'. I understand
from my
attorney that the Respondent's Cape Town Office regularly renews
Section 22 permits pending decisions from the Standing
Committee For
Refugee Affairs and the Refugees Appeal Board.
These
decisions are being communicated to Applicants in Cape Town when the
decision has been made in Pretoria. There is no reason
why a
decision by a Refugee Status Determination Officer in Pretoria
cannot be forwarded to Cape Town in the same manner.
[39]
The fourth respondent in his answering affidavit agrees that section
22 permits are regularly renewed at the Maitland Office
and that
decisions are communicated to asylum seekers in Cape Town where
decisions have been made at a different Refugee Reception
Centre.
However, it does not appear from all these statements that the
reason for the refusal, if it did occur (the fourth respondent
points out that the official concerned is not identified, that the
second applicant attended on a day reserved for Somalis and
that
there is no record of the second applicant's attendance on that
day), was that the original permit was issued in Pretoria
and not at
the Maitland Office. In any event, the facts deposed to by the
second applicant, read with the answering affidavit
of the fourth
respondent, create at least a reasonable doubt that the
non-compliance occurred wilfully and mala fide.
[40]
It follows that the application cannot succeed and must be
dismissed. The respondents ask that the applicants pay the costs
of
the application. The general rule is that costs should follow the
event, but this rule is subject to the basic principle that
costs
are in the discretion of the judge which discretion must be
judicially exercised upon a consideration of the facts of the
case.
In essence, it has been said, it is a matter of fairness to both
sides. Although the applicants have not been successful,
they were
not unreasonable in bringing the application. Genuine disputes on
issues that are of public interest arose. In the
circumstances and
in the exercise of the discretion afforded this court, I am of the
view that no order as to costs should be
made.
It
is ordered that:
1.
The application is dismissed.
2.
There will be no order as to Costs.
W.J.
LOUW
Judge
of the High Court