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[2013] ZASCA 134
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Minister of Home Affairs and Others v Scalabrini Centre, Cape Town and Others (735/12, 360/13) [2013] ZASCA 134; 2013 (6) SA 421 (SCA); [2013] 4 All SA 571 (SCA) (27 September 2013)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 735/12 & 360/13
Reportable
In
the matter between:
THE
MINISTER OF HOME AFFAIRS
..............................................
1
st
Appellant
THE
DIRECTOR GENERAL, DEPARTMENT
OF
HOME AFFAIRS
...........................................................................
2
nd
Appellant
CHIEF
DIRECTOR: ASYLUM SEEKER
MANAGEMENT
...................................................................................
3
rd
Appellant
THE
STANDING COMMITTEE FOR
REFUGEE
AFFAIRS
............................................................................
4
th
Appellant
THE
MINISTER OF PUBLIC WORKS
.............................................
5
th
Appellant
and
SCALABRINI
CENTRE, CAPE TOWN
..........................................
1
st
Respondent
ALESSANDRO
ALFREDO FESTORAZZI
...................................
2
nd
Respondent
FRANCO
VIGNAZIA
........................................................................
3
rd
Respondent
GERARDO
DE JESUS GARCIA PONCE
......................................
4
th
Respondent
GIOVANNI
MENEGHETTI
.............................................................
5
th
Respondent
GUY
ERIC JOSUE DIAZENZA
.......................................................
6
th
Respondent
MARIA
DULCE RODRIGUES PEREIRA
.....................................
7
th
Respondent
MARIA
JUDITE GARCES VIRISSIMO
........................................
8
th
Respondent
MARIO
TESSAROTTO
....................................................................
9
th
Respondent
Neutral
citation:
Minister of Home Affairs v Scalabrini Centre, Cape
Town
(735/12 & 360/13)
[2013] ZASCA 134
(27 SEPTEMBER 2013)
Coram:
NUGENT, LEWIS, THERON, WALLIS and WILLIS JJA
Heard:
3 SEPTEMBER 2013
Delivered:
27 SEPTEMBER 2013
Summary:
Refugee Reception Office – closure by the Director-General –
review of the decision – whether ‘administrative
action’
under
Promotion of Administrative Justice Act 3 of 2000
–
whether consistent with doctrine of legality.
___________________________________________________________
ORDER
___________________________________________________________
On appeal from the Western Cape
High Court, Cape Town (Rogers J sitting as court of first instance).
Save for setting aside paragraphs
(b) and (c) of the order of the court below, and substituting them
with the order that follows,
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 (b) and (c) are
substituted with the following:
‘
In the
event that a decision as to the future of the Cape Town Refugee
Reception Office has not been made by 30 November 2013, the
applicants are granted leave to apply upon the same papers,
supplemented so far as they consider that to be necessary, for
further
relief’.
___________________________________________________________
JUDGMENT
___________________________________________________________
NUGENT JA (LEWIS, THERON and
WALLIS JJA CONCURRING)
[1] Many people stream into this
country, generally through its northern borders, claiming refuge from
oppression and turmoil in
their own countries. The
Refugees Act 130
of 1998
provides the framework within which South Africa carries out
its international obligation to receive refugees.
[2] It provides in
s 8(1)
that
the Director-General of the Department of Home Affairs ‘may
establish as many Refugee Reception Offices in the Republic
as he or
she, after consultation with the Standing Committee, regards as
necessary for the purposes of this Act’. Each Refugee
Reception
Office must consist of at least one Refugee Reception Officer and one
Refugee Status Determination Officer.
[3] Applications for refugee
status – called asylum in the statute – must be made in
person to a Refugee Reception Officer
at any Refugee Reception
Office. The Refugee Reception Officer must accept the application
form, ensure it is properly completed,
make such enquiries as he or
she deems necessary, and then refer it to a Refugee Status
Determination Officer. The Refugee Status
Determination Officer must
then consider the application, obtain such further information as
might be relevant, and decide whether
to grant or refuse asylum.
[4] Pending the outcome of an
application for asylum the Refugee Reception Officer must issue to
the applicant an asylum seeker
permit – referred to in the
papers as a
s 22
permit – which allows the applicant to sojourn
temporarily in the Republic, subject to any conditions that might be
imposed.
Once granted such a permit an asylum seeker is permitted to
move freely in the country, and may be permitted to work or study.
1
The permit may be extended from
time to time by a Refugee Reception Officer.
[5] This appeal concerns a
Refugee Reception Office that was established in Cape Town. No later
than 30 May 2012 the Director-General
decided that applications for
asylum would no longer be received at the Cape Town office, which
would thenceforth deal only with
applications to extend
s 22
permits
that had already been issued. In effect, the decision amounted to
closure of the Refugee Reception Office, which is how
it has been
characterised by the authorities.
[6] The decision was challenged
on review in the Western Cape High by the Scalabrini Centre of Cape
Town – a non-profit organisation
founded by the Missionaries of
St Charles to assist migrant communities and displaced people. The
respondents were the Minister
of Home Affairs, the Director-General
of that department, the Chief Director for Asylum Seeker Management –
the first to
third respondents, who I will refer to collectively as
the authorities – and the Standing Committee for Refugee
Affairs.
2
[7] Pending the outcome of the
review an interim order was issued by Davis J compelling the
authorities
‘
to
ensure that a Refugee Reception Office remains open and fully
functional within the Cape Town Metropolitan Municipality at which
new applicants for asylum can make applications for asylum and be
issued with
section 22
permits’.
[8] Leave to appeal that order
was refused and the authorities petitioned the President of this
court. Meanwhile, in anticipation
of that occurring, Davis J ordered
that the interim order should take immediate effect. The petition was
referred under s 21(3)(c)(ii)
of the Supreme Court Act 59 of 1959 for
oral argument before this court, the parties being advised they must
be prepared to address
the merits of the appeal if called upon to do
so.
[9] The application to review the
decision succeeded before Rogers J,
3
who made the following orders:
‘
(a)
The [Director-General’s] decision, taken by no later than 30
May 2012, to close the Cape Town Refugee Reception Office
to new
applicants for asylum after 29 June 2012 is declared unlawful and set
aside.
(b) The
[authorities] are directed to ensure that by Monday 1 July 2013 a
Refugee Reception Office is open and fully functional
within the Cape
Town Metropolitan Municipality at which new applicants for asylum can
make applications for asylum in terms of
s 21
of the
Refugees Act 130
of 1998
and be issued with permits in terms of s 22 of the Act’.
He also ordered the
Director-General to report to the Scalabrini Centre’s attorneys
from time to time on progress being made
towards compliance. The
authorities now appeal those orders with the leave of that court.
[10] Apart from the office at
Cape Town, the Director-General also established Refugee Reception
Offices at Crown Mines (Johannesburg),
Marabastad (Tshwane), Port
Elizabeth, Durban and Musina. The operation of those offices has
confronted the authorities with considerable
difficulty, arising from
the large number of applicants who congregate there.
[11] In Port Elizabeth business
proprietors and residents in the vicinity of the office brought
proceedings in the Eastern Cape
High Court in 2009, alleging that the
presence of the office was causing a nuisance. Jones J issued an
order compelling the Minister
of Home Affairs to abate the nuisance,
and directed various steps to be taken towards that end. That
notwithstanding, the problem
continued, and in October 2011 the
Director-General decided to close the office when the department’s
lease expired the following
month. That prompted proceedings in the
Eastern Cape High Court at the instance of the Somali Association of
South Africa. In February
2012 Pickering J held the decision to be
unlawful – because it had been taken without prior consultation
with the Standing
Committee – and set it aside. He also ordered
the authorities ‘forthwith to open and maintain a fully
functional Refugee
Reception Office … in the Nelson Mandela
Bay Municipality’.
4
[12] Similar problems were
experienced at City Deep. In March 2011 Horwitz AJ, sitting in the
South Gauteng High Court, interdicted
the authorities from conducting
a Refugee Reception Office from the premises then being occupied, but
allowed the authorities sixty
days to relocate. According to the
Director-General alternative premises could not be found. The office
was closed on 1 June 2011
and the files were transferred to
Marabastad.
[13] The same problems were
encountered in Cape Town. At first the Refugee Reception Office was
located at Customs House on the
foreshore – a building owned by
the state but shared with others.
5
Complaints from other occupants
and the local authority led to the office relocating to premises at
Airport Industria in November
2006. Again there were complaints and
occupants of properties in the vicinity applied to the Western Cape
High Court for relief.
On 24 June 2009 Rogers AJ (then an acting
judge) declared the operation of the office to be unlawful – on
the grounds that
the use contravened the zoning regulations and was a
common law nuisance – and ordered the authorities to terminate
the operation
of the Refugee Reception Office by no later than 30
September 2009.
6
[14] The office was then
relocated to Maitland. Once again the owner of an adjacent property
brought proceedings in the Western
Cape High Court. They culminated
in Binns-Ward AJ declaring the operation of the office to be
unlawful, because it infringed the
zoning regulations, and created an
actionable nuisance.
7
He interdicted the authorities
from operating the office at the premises until the regulations were
amended to permit it, and until
measures had been put in place to
abate the nuisance. The orders were suspended for some months on
certain conditions. One of the
conditions could not be met by the
authorities and the orders became effective on 13 September 2010.
[15] Notwithstanding those orders
the office continued functioning at the Maitland premises while the
authorities sought alternative
premises. According to the authorities
various premises were identified but found to be unsuitable. In March
2011 offers of premises
were received in response to a public
invitation to tender but again the authorities considered none to be
suitable. The nature
of the premises that were being sought, the
conditions upon which they wished to occupy them, and the reasons the
premises were
found to be unsuitable, are not disclosed in the
affidavits.
[16] The Refugee Reception Office
was still being operated from the Maitland premises at the time the
present proceedings were brought
in June 2012. The affidavits are
silent on whether anything was done in the fourteen months from March
2011 to secure alternative
premises.
[17] The premises from which the
office operated in Maitland were leased under three separate leases.
One was for a road that was
essential for access to the premises, and
was terminable on one month’s notice. On a date not disclosed
in the affidavits
the lessor gave notice that the lease would
terminate on 31 May 2012.
[18] On 7 May 2012 the
authorities convened a meeting – they called it a ‘refugee
stakeholder engagement meeting’.
It was attended by officials
of the Department of Home Affairs and the Department of Public Works,
and by representatives of a
large number of interested organisations,
including the Scalabrini Centre.
8
[19] The minute of the meeting
records that those in attendance were told by the officials that the
purpose of the meeting was
‘
to
inform stakeholders of the recent developments at the Refugee
Reception Centre specifically towards the notice of termination
of
lease (end May 2012) received from the Landlord of the access road’.
[20] One of the officials made a
presentation that was described as follows in the minute:
‘
Mr.
Yusuf Simons (PM: WC) made presentation on the infrastructural
challenges experienced by the RRC Management by giving background
information on previous eviction orders, current office accommodation
and efforts made to [relocate to] alternative premises after
a Court
order was received in 2011. In closure and the way forward it was
indicated that the DHA will engage the landlord for a
possible
extension and in the event of refusal the DHA would investigate
alternative ways to accommodate the different categories
of Refugee
Services. Further consultation with stakeholders will take place
after engagements with the relevant internal and external
stakeholders’.
[21] Those in attendance were
then given the opportunity to ‘provide proposals, inputs and
engage with the [Department of
Home Affairs] and [Department of
Public Works] management’. Various issues were raised, amongst
which was the Scalabrini
Centre’s ‘concern about the DHA
intention to relocate RRC’s to borders and missed [?] the DHA’s
intention
to keep the Refugee Office in Cape Town open’. In
response the Deputy Director-General: Civic Services
‘
reiterated
that the intention of the meeting was to consult and inform
Stakeholders of the current challenges and not to close down
the
office. The intention of the DHA is to continue servicing clients at
the Maitland Office and to come up with a strategy on
how and where
to service clients in the event of a possible closure’
[22] On 10 May 2012 officials met
with the lessor of the access road, who was adamant that the lease
would terminate, but was willing
to extend it to 30 June 2012, and to
allow a further ten days for the premises to be vacated.
[23] The standing committee
referred to earlier in this judgment is the Standing Committee for
Refugee Affairs established by s
9(1) of the Act. It is enjoined to
‘function without any bias and must be independent’ and
its functions include formulating
and implementing procedures for the
granting of asylum, regulating and supervising the work of Refugee
Reception Offices, liaising
with representatives of the United
Nations High Commissioner for Refugees and non-governmental
organisations, and advising the
Minister of Home Affairs and the
Director-General on any matters they refer to it. At the time
relevant to this appeal it comprised
two members – the
chairperson, Mr Sloth-Nielson, and Ms Mungwena.
[24] On 30 May 2012 the
Director-General and three officials from his office met with the
members of the standing committee. It
is apparent from the minute of
the meeting that its purpose was to inform the members of the
standing committee of decisions the
department had taken with regard
to the Refugee Reception Offices at Port Elizabeth and Cape Town, and
the establishment of a new
Refugee Reception Office in Lebombo.
[25] The minute of the meeting
records, amongst other things, that the standing committee was told
the following with regard to
the Port Elizabeth office:
‘
Due
to various challenges that were received by the Department all over
the country in relation to the nuisance factor, the Department
noted
a trend of many court challenges against it operations in
Metropolitan areas and is of the view that Refugee Offices are
not
suitable for such Metropolitan areas. Furthermore, the procuring of
alternative accommodation for another RRO in Port Elizabeth
will not
take less than 18 months, if not longer.
Due to the above, as
well as a policy shift that was discussed at cabinet level to move
RROs close to ports of entry, it has been
decided that the Port
Elizabeth office must be closed.’
[26] As for the Cape Town office,
the standing committee was informed of the termination of the lease,
and then told the following:
‘
Due
to the previous experience in such matters, the Director-General
ordered that consultation take place with the various stakeholders
regarding these developments. This meeting indeed took place on 7 May
2012 and a follow-up meeting is scheduled to take place in
early June
2012 to advise stakeholders of the final decision.
Various measures are
currently being put in place by a Departmental task team in order to
extend services to recognised refugees
and asylum seekers that have
already interacted with the Cape Town RRO.'
Although not expressly stated, I
think it can be taken that the decision to close the Cape Town office
was equally influenced by
the ‘policy shift’ that
influenced the decision to close the Port Elizabeth office.
[27] The members of the standing
committee were also told of plans that were under way to establish a
Refugee Reception Office in
Lebombo. Government land had been
identified for the establishment of the office, temporary premises
were to be erected, and ‘all
the resources’ from Cape
Town were to be transferred to that office.
[28] No further meeting with
interested parties had taken place by the time the Director-General
met with the standing committee.
So much for the assurance given to
those who had attended the meeting on 7 May 2012 that they would be
consulted if negotiations
with the lessor were unsuccessful. So much,
too, for the statement that the authorities did not intend closing
the office. And
so much for the response to the concern expressed by
the Scalabrini Centre that the department might be intending to
relocate Refugee
Reception Offices to the borders.
[29] Barely three weeks after the
meeting with interested organisations the Director-General had
decided two offices would be closed,
at least partly because of a
‘policy shift’ to move Refugee Reception Offices close to
ports of entry on the northern
borders. Lebombo had already been
identified as the replacement for the Cape Town office. Measures were
already being put in place
to continue dealing in Cape Town only with
those asylum-seekers who were already in the pipeline.
[30] Far from the organisations
being consulted should the lease of the Maitland premises not be
extended, on 6 June 2012 they were
invited instead to attend a
meeting to be held two days later ‘to share some light and
insight into impending closure of
the Cape Town Refugee Reception
Centre with effect from the 30
th
June 2012’, and
advising them of the implications of the closure of the office.
[31] The meeting was duly held,
attended once again by representatives of the organisations that had
attended the earlier meeting
and by others. Far from soliciting their
views on the future of the office, they were informed that the lessor
had declined to
extend the lease, that Customs House would be used
for the ‘servicing of current asylum seekers’, but that
otherwise
the Refugee Reception Office would close on 29 June 2012.
That prompted the present proceedings, which were launched on 19 June
2012.
[32] I think it is plain that
what was said at the meeting on 7 May 2010 was not altogether open
and frank – indeed, going
by the minute of the meeting it was
positively misleading. The clear impression conveyed by the minute is
that the sole concern
of the authorities was to obtain suitable
premises from which to continue operating the office. What would
occur if the existing
lease could not be extended – those in
attendance were told – would be decided only after further
consultation. Not
a word was said about a policy to relocate Refugee
Reception Offices to the borders. On the contrary, the query by the
Scalibrini
Centre on that issue was summarily brushed aside. Yet by
30 May 2012, without so much as notice to the organisations, a
decision
to close the office had been made, and then at least partly
because of a ‘shift in policy’ to relocate offices to the
borders, which had clearly been long in the making.
[33] I cannot help being
sceptical of the protestations in the affidavits that the closure of
the office was unavoidably foisted
upon the authorities by the
unavailability of suitable premises. Quite apart from what was said
at the meeting on 30 May 2012,
the authorities have been at pains to
explain at some length in the affidavits why an office in Cape Town
is neither necessary
nor desirable, and to justify confining Refugee
Reception Offices to the northern borders, which is hardly consistent
with an intention
to keep the office open for any length of time. The
termination of the lease for the Maitland premises may have been the
trigger
for the closure, but the closure appears to have been
consistent with the on-going evolution of government policy for
dealing with
applications for asylum.
[34] In their affidavits the
authorities make much of the fact that few people who claim asylum
enter the country at Cape Town.
They allege that since 2008 an annual
average of only 110 entered the country at Cape Town. Some 90 per
cent of those who attended
at the Cape Town office from the beginning
of 2012 entered across its northern borders. They say the vast
majority of those claiming
asylum are not truly refugees at all, but
enter the country illegally across the northern borders in search of
economic opportunities,
and they point to the undesirability of
allowing them to become lost to the authorities amongst the general
population. Amongst
other things, they say, it is more economical to
deport those who do not qualify for asylum, if they are contained
near the northern
borders.
[35] They say that as far back as
November 2009 the problem of illegal entry to the country from the
north was considered by the
cabinet, which approved the deployment of
members of the defence force to control entry at its borders. It is
apparent that this
was only one element of a broader strategy
discussed for regulating those who claim asylum. As the
Director-General stated:
‘
I
also point out that in support of the Cabinet decision (to deploy
members of the Defence Force to render border control and protection
services at ports of entry), the Department is finalising policy to
move existing Refugee Reception Office (those in Cape Town,
Port
Elizabeth and Durban) closer to the ports of entry.
Furthermore, in line
with the Cabinet decision referred to above, the Department has also
sought to reduce the time for the validity
of the asylum transit
permit in Section 23 of the Immigration Act from 14 days to 5 days. I
must emphasise that this amendment
has not yet come into operation.
We believe that relocating Refugee Reception Office to the ports of
entry will be in line with
the policy direction of the Department and
will ensure that legitimate asylum seekers will be able to be
processed at the ports
of entry before they get lost in the vastness
of the country with the consequent difficulty of tracing them’.
And later:
‘
[The]
Department (being part of the Executive) is in the process of
considering the efficacy to relocate the Refugee Reception Office
to
ports of entry … The full implementation of this view is,
however, dependent on various factors including the inputs
of
interested parties’.
And yet later:
‘
I
must also point out that the decision of the Department to relocate
existing Refugee Reception Office to ports of entry is still
subject
to feasibility scrutiny, the outcome of the O.R. Tambo Airport Pilot
Programme and most importantly how that decision will
be implemented
(unless cogent information directs a re-assessment of the decision)’.
[36] It is difficult to determine
from those conflicting allegations what stage the proposed policy has
reached. At one time it
is said to be ‘still subject to
feasibility scrutiny’ – at another that the department is
‘in the process
of considering the efficacy’ of
relocating the offices – and at another that the policy is
being finalised. Once again
I think the authorities have not been
altogether open and frank. But whether the policy is still in its
infancy, or is close to
finality but has yet to be formally adopted,
it is perfectly clear that it was meanwhile given effect, at least as
a material consideration,
in the Director-General’s decision.
[37] But it is not necessary for
present purposes to probe further the extent to which the ‘shift
in policy’ influenced
the decision. I mention it only to
demonstrate that confining the discussion at the meeting on 7 May
2012 to the future of the
lease meant the meeting came nowhere near
discussing the true intentions of the authorities. If consultation
with the Scalabrini
Centre and other interested parties was required,
then the meeting of 7 May 2012 did not satisfy that requirement,
because that
meeting was not discussing the permanent closure of the
Refugee Reception Office in the Cape Town metropolitan area.
[38] Turning to the issues that
now arise the Scalabrini Centre advanced its case on three bases, all
of which found favour with
the court below, and I deal with each
seriatim.
[39] It is not disputed that,
just as s 8(1) of the Act authorises the Director-General to
establish Refugee Reception Offices,
so, too, does it authorise him
or her to close them. In either case he or she is authorised to do so
only ‘after consultation
with the Standing Committee’. It
was submitted – successfully in the court below – that
the Director-General
failed to consult with the standing court before
making the decision, in consequence of which the decision was
unlawful. What occurred
instead – so it was submitted and held
– is that the Director-General presented the decision to the
standing committee
as a fait accompli, and the standing committee
merely endorsed it.
[40] That the decision had
already been made by the time the Director-General met with the
standing committee is certainly supported
by the minute of the
meeting. It records that after being told by the Director-General of
the decisions that had been made
‘
[the]
Standing Committee approved the decision to closure of the Port
Elizabeth and Cape Town Refugee Reception Offices and further
approved the establishment of the Lebombo Refugee Reception Office.’
The chairperson later placed that
on record – as if to avoid what had happened at Port Elizabeth
– in a letter to the
Director-General on 12 June 2012:
‘
The
Standing Committee for Refugee Affairs, after consultation with you
on 30 May 2012 and consideration of the reasons advanced
by the
Department, approves the decision to close the Port Elizabeth and
Cape Town Refugee Reception Offices and approves the decision
to
establish a Refugee Reception Office at Lebombo’.
[41] It is alleged by the
authorities that consultation with the standing committee was not
confined to what occurred at the meeting,
but had also occurred in
earlier informal engagements, which seems to me to be inconsistent
with what was said in the letter. Be
that as it may, I will assume,
in favour of the Scalibrini Centre, that the standing committee was
indeed told of the decision
only once it had been made.
[42] The learned judge said, with
support from various cases decided mainly in the English courts, that
seeking approval for a decision
already made is not consultation. He
said that consultation entails ‘a genuine invitation to give
advice and a genuine receipt
of that advice’,
9
it is ‘not to be treated
perfunctorily or as a mere formality’,
10
and that engagement after the
decision-maker has already reached his decision, or once his mind has
already become ‘unduly
fixed’, is not compatible with
true consultation.
11
[43] While all that is true, and
there is no reason not to apply the principles in those decisions to
similar effect in this country,
12
it does not follow that the
decision is impeachable by the Scalabini Centre on the ground that
consultation with the standing committee
did not occur. What also
appears from those cases is that an obligation to consult demands
only that the person who is entitled
to be consulted be afforded an
adequate opportunity to exercise that right. Only if that right is
denied is the obligation to consult
breached.
[44] The cases relied upon from
the English courts all concerned complaints that the right to be
consulted had been denied –
which is not the present case. The
right to be consulted was conferred upon the standing committee
alone, and so far as it was
not consulted in the true sense, it is
quite apparent from the stance it has taken that it has chosen not to
assert that right.
It may have been supine, or made little
contribution to the decision, but it says it was aware of the
situation and agreed with
the Director-General. That being so, the
Director-General can hardly be said to have denied it its right, and
his decision is not
impeachable on that ground. As Lord Morris of
Borth-y-Gest said in
Port
Louis Corporation v Attorney-General of Mauritius
:
13
‘
The
local authority cannot be forced or compelled to advance any views
but it would be unreasonable if the Governor in Council could
be
prevented from making a decision because the local authority had no
views or did not wish to express or declined to express
any views’.
[45] The remaining issues are
more fundamental to the decision of the Director-General. The
Scalibrini Centre contends that the
decision constituted
administrative action for purposes of the Promotion of Administrative
Justice Act 3 of 2000 (PAJA), and that
the Director-General failed to
meet the requirements of the Act. In the alternative it contends that
the decision was in conflict
with what has been called the doctrine
of legality.
[46] Notwithstanding his
conclusion on the first point the learned judge considered all those
submissions – saying he was
doing so in case the matter went on
appeal – and found in favour of the Scalabrini Centre on them
all.
[47] He found the decision of the
Director-General indeed constituted administrative action for
purposes of PAJA,
14
that the failure to consult the
standing committee was contrary to ss 6(2)(f)(i) and 6(2)(i),
15
that the manner in which the
decision was taken was procedurally unfair in conflict with s
6(2)(c),
16
that it was not rationally
connected to the purpose of the empowering provision in conflict with
s 6(2)(f)(ii),
17
and that it was so unreasonable
that no reasonable person could have made it, as envisaged by s
6(2)(h).
18
[48] I do not find it necessary
to recite the cumbersome definition in PAJA of ‘administrative
action’. It is sufficient
to say that it is defined to mean a
‘decision of an administrative nature’ that has various
features, amongst which
are that it ‘adversely affects the
rights of any person’.
[49] This court had occasion in
Grey’s Marine,
19
to comment on the incongruity of
that feature as a defining element of ‘administrative action’.
It is difficult to see
how a clerk who is called upon to say ‘yes’
or ‘no’ to applications for bicycle licences is
performing
an administrative act when he or she says ‘no’,
but is not performing an administrative act by saying ‘yes’.
It is true that only a person who is refused a licence will have
reason to complain, but that goes to the actionability of the
decision, and not to its nature.
[50] The learned judge
nonetheless considered that whether rights were adversely affected by
the decision was determinative of whether
it constituted
administrative action, and dealt only with that question. He found
that rights were indeed adversely affected by
the decision, and on
that basis concluded it constituted administrative action. A
fortiori, he said, if that was not a necessary
feature of
administrative action.
20
[51] On the view I take of the
matter it is not material to decide whether that finding was correct
because not every exercise of
public power having that feature –
if it is required at all – constitutes administrative action.
The prior question
– which was not dealt with by the court
below – is whether the decision is ‘of an administrative
nature’,
which is an element of the definition of a ‘decision’.
As this court said in
Grey’s
Marine
:
21
‘
At
the core of the definition of administrative action is the idea of
action (a decision) ‘of an administrative nature’
taken
by a public body or functionary.’
[52] That was expounded upon more
fully by my colleague Wallis – then sitting in the
KwaZulu-Natal High Court – in
Sokhela
v MEC for Agriculture and Environmental Affairs
:
22
'[The
requirement that the decision be of an administrative nature]
precludes the determination of what constitutes administrative
action
from becoming a mechanical exercise in which the court merely asks
itself whether a public power is being exercised or a
public function
is being performed, and then considers whether it falls within one or
other of the exceptions [in subparas (aa)
– (ii) of the
definition of ‘administrative action’]. The inclusion, of
the requirement that the decision be
of an administrative nature,
demands that a detailed analysis be undertaken of the nature of the
public power or public function
in question, to determine its true
character. This serves in turn to demonstrate that the exceptions
contained in the definition
of administrative action are not a closed
list, nor are cases falling outside those exceptions to be looked at
on the basis that,
if they are not
eiusdem
generis
with
the exceptions, they are automatically to be treated as constituting
administrative action. There is accordingly no mechanical
process by
which to determine whether a particular exercise of public power or
performance of a public function will constitute
administrative
action. That will have to be determined in each instance by a close
analysis of the nature of the power or function
and its source or
purpose.'
[53] PAJA is the legislative
measure that gives effect to the right to fair administrative action
afforded by s 33 of the Constitution,
and should be construed
consistently with that section to avoid constitutional invalidity. A
review of the cases on the subject
demonstrate that a universal test
for what constitutes ‘administrative action’ under s 33
of the Constitution –
and by extension a decision ‘of an
administrative nature’ under PAJA – is destined to remain
elusive. In
SARFU
23
it was said by the Constitutional
Court – referring to whether an action should be characterised
as the implementation of
legislation or the formulation of policy in
the context of s 33 of the Constitution – that
‘
[a]
series of considerations may be relevant to deciding on which side of
the line a particular action falls. The source of the
power, though
not necessarily decisive, is a relevant factor. So, too, is the
nature of the power, its subject matter, whether
it involves the
exercise of a public duty and how closely it is related on the one
hand to policy matters, which are not administrative,
and on the
other to the implementation of legislation, which is. While the
subject-matter of a power is not relevant to determine
whether
constitutional review is appropriate, it is relevant to determine
whether the exercise of the power constitutes administrative
action
for the purposes of s 33’.
It said that what matters when
drawing the distinction ‘is not so much the functionary as the
function’ and that
‘
[d]ifficult
boundaries may have to be drawn in deciding what should and what
should not be characterised as administrative action
for the purposes
of s 33. These will need to be drawn carefully in the light of the
provisions of the Constitution and the overall
constitutional purpose
of an efficient, equitable and ethical public administration. This
can best be done on a case by case basis’.
[54] I do not think it is helpful
to refer to other fact-specific cases in which the question what
constitutes administrative action
has been considered. But I think
some guidance is to be had from recent cases enjoining courts to
recognise the concept of the
separation of powers that is inherent in
the Constitution. While much of that has been said outside the
context of PAJA it is nonetheless
foundational for the distinction
between administrative and other forms of governmental action. As
pointed out in
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa,
24
‘
administrative
law, which forms the core of public law, … is an incident of
the separation of powers under which courts regulate
and control the
exercise of public power by the other branches of government. It is
built on constitutional principles which define
the authority of each
branch of government, their inter-relationship and the boundaries
between them’.
[55] In
International
Trade Administration Commission v Scaw South Africa (Pty) Ltd (ITAC)
25
the Constitutional Court said the
following of the separation of powers:
'The
Constitution makes no express provision for separation of powers. In
the
First
Certification
judgment,
26
the
court was satisfied that the new Constitution did comply with the
requirement for separation of powers envisaged in Constitutional
Principle VI. It reasoned as follows:
"The principle
of separation of powers, on the one hand, recognises the functional
independence of branches of government.
On the other hand, the
principle of checks and balances focuses on the desirability of
ensuring that the constitutional order,
as a totality, prevents the
branches of government from usurping power from one another. In this
sense it anticipates the necessary
or unavoidable intrusion of one
branch on the terrain of another. No constitutional scheme can
reflect a complete separation of
powers: the scheme is always one of
partial separation."'
[56] In
National
Treasury v Opposition to Urban Tolling Alliance
,
27
the court affirmed
ITAC
,
and also repeated what had been said to the same effect in
Doctors
for Life International v Speaker of the National Assembly
:
28
''(w)here the
Constitution or valid legislation has entrusted specific powers and
functions to a particular branch of government,
courts may not usurp
that power or function by making a decision of their preference. That
would frustrate the balance of power
implied in the principle of
separation of powers. The primary responsibility of a court is not to
make decisions reserved for or
within the domain of other branches of
government, but rather to ensure that the concerned branches of
government exercise their
authority within the bounds of the
Constitution. This would especially be so where the decision in issue
is policy-laden as well
as polycentric.'
[57] I think it is clear from
those and other cases that decisions heavily influenced by policy
generally belong in the domain of
the executive. It seems to me that
if decisions of that kind are to be deferred to by the courts then
that must necessarily be
a strong guide to what falls outside
‘administrative action’ and the review powers given to
the courts by PAJA. The
more a decision is to be driven by
considerations of executive policy the further it moves from being
reviewable under PAJA and
vice versa. That seems to me to be
consistent with
SARFU
,
in which it was said that one of the considerations to be taken into
account in determining what constitutes administrative action
is ‘how
closely it is related … to policy matters, which are not
administrative’.
[58] While that is not
necessarily the only factor that is relevant to whether conduct is
administrative action, I think it is sufficient
for our decision in
this case. The question whether a Refugee Reception Office is
necessary for achieving the purpose of the Act
is quintessentially
one of policy. Where, and how many, offices should be established,
will necessarily be determined by matters
like administrative
effectiveness and efficiency, budgetary constraints, availability of
human and other resources, policies of
the department, the broader
political framework within which it must function, and the like. I do
not think courts, not in possession
of all that information, and not
accountable to the electorate, are properly equipped or permitted to
make those decisions.
[59] In her seminal work on
administrative law,
29
Professor Hoexter cites two
extracts to that effect, the first written by Jeffrey Jowell:
30
‘
[It]
is not the province of courts, when judging the administration, to
make their own evaluation of the public good, or to substitute
their
personal assessment of the social and economic advantage of a
decision. We should not expect judges therefore to decide whether
the
country should join a common currency, or to set a level of taxation.
These are matters of policy and the preserve of other
branches of
government and courts are not constitutionally competent to engage in
them.'
And the second by Sachs J in
Du
Plessis v De Klerk
:
31
'The judicial
function simply does not lend itself to the kinds of factual
enquiries, cost-benefit analyses, political compromises,
investigations of administrative/ enforcement capacities,
implementation strategies and budgetary priority decisions which
appropriate
decision-making on social, economic, and political
questions requires. Nor does it permit the kinds of pluralistic
public interventions,
press scrutiny, periods for reflection and the
possibility of later amendments, which are part and parcel of
Parliamentary procedure.
How best to achieve the realisation of the
values articulated by the Constitution is something far better left
in the hands of
those elected by and accountable to the general
public than placed in the lap of the Courts.'
[60] But that does not mean the
decision of the Director-General is immune from scrutiny by the
courts. ‘It is by now axiomatic
that the exercise of all public
power must comply with the Constitution, which is the supreme law,
and the doctrine of legality,
which is part of the rule of law’.
32
[61] Professor Hoexter has
observed that the doctrine is in the process of evolution, and will
continue to evolve,
'quite possibly to
the extent that it eventually encompasses all the grounds of review
associated with "regular" administrative
law. Meanwhile,
the principle fairly easily covers all the grounds ordinarily
associated with authority, jurisdiction and abuse
of discretion: ….
Here at least, the principle of legality is a mirror image of
administrative law. It is administrative
law "under another
name".'
33
[62] In this case the learned
judge found that even if the decision of the Director-General was not
administrative action under
PAJA, it was nonetheless unlawful for
want of legality on two grounds.
[63] The first was that there was
said to be no ‘objectively rational relationship between the
closure decision and the purpose
of s 8(1)’ and that the
decision was also ‘vitiated by the [Director-General’s]
failure to apply his mind properly
to the matter.’
[64] It is well-established that
legality calls for rational decision-making. As it was expressed in
Pharmaceutical Manufacturer’s Association
:
‘
It
is a requirement of the rule of law that the exercise of public power
by the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.’
34
[65] But an enquiry into
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. As appears from the passage above,
rationality entails that the decision
is founded upon reason –
in contra-distinction to one that is arbitrary – which is
different to whether it was reasonably
made. All that is required is
a rational connection between the power being exercised and the
decision, and a finding of objective
irrationality will be rare.
35
[66] Whether a decision is
rationally related to its purpose is a factual enquiry blended with a
measure of judgment. It is here
that courts are enjoined not to stray
into executive territory. I do not think it can be found, on the
brief and incomplete information
provided in the affidavits alone,
which were directed in the main towards explaining the history of the
department’s attempts
to find premises, that the decision was
irrational. Although the information concerning the search for and
alleged unavailability
of alternative premises is scanty and
incomplete, it is not rebutted and there is no evidence that such
premises are indeed available.
Then as I have already pointed out it
is quite apparent that the decision was at least influenced by an
evolving policy to relocate
offices to the borders. Myriad factors
would go towards determining such a policy. On the facts assessed by
the court below one
might indeed find it unreasonable to close the
Cape Town office, but I think they fall far short of showing the
decision was irrational,
in the sense of being arbitrary.
36
[67] The second ground upon which
it was found the decision fell short of constitutional legality was
for want of consultation with
interested parties. There was some
suggestion in the submission on behalf of the Scalibrini Centre of a
general obligation on those
who exercise public power to afford a
hearing to interested parties but I think that takes it too far. The
very nature of representative
government is that matters of
government policy are properly to be ventilated in the appropriate
representative forums.
[68] Nonetheless, there are
indeed circumstances in which rational decision-making calls for
interested persons to be heard. That
was recognised in
Albutt
v Centre for the Study of Violence and Reconciliation
,
37
which concerned the exercise by
the President of the power to pardon offenders whose offences were
committed with a political motive.
One of the questions for decision
in that case was whether the President was required, before
exercising that power, to afford
a hearing to victims of the
offences. It was held that the decision to undertake the special
dispensation process under which pardons
were granted, without
affording the victims an opportunity to be heard, must be rationally
related to the achievement of the objectives
of the process. Ngcobo
CJ said:
38
'All this flows from
the supremacy of the Constitution. The President derives the power to
grant pardon from the Constitution and
that instrument proclaims its
own supremacy and defines the limits of the powers it grants. To pass
constitutional muster therefore,
the President's decision to
undertake the special dispensation process, without affording victims
the opportunity to be heard,
must be rationally related to the
achievement of the objectives of the process. If it is not, it falls
short of the standard that
is demanded by the Constitution.
The Executive has a
wide discretion in selecting the means to achieve its
constitutionally permissible objectives. Courts may not
interfere
with the means selected simply because they do not like them, or
because there are other more appropriate means that
could have been
selected. But, where the decision is challenged on the grounds of
rationality, courts are obliged to examine the
means selected to
determine whether they are rationally related to the objective sought
to be achieved. What must be stressed is
that the purpose of the
enquiry is to determine not whether there are other means that could
have been used, but whether the means
selected are rationally related
to the objective sought to be achieved. And if, objectively speaking,
they are not, they fall short
of the standard demanded by the
Constitution.’
[69] That the process by which a
decision is taken – in contra-distinction to a decision on the
merits of the matter under
consideration – might itself be
impeached for want of rationality – was affirmed in
Democratic
Alliance v President of the Republic of South Africa
,
39
in which one of the issues was
‘whether the process as well as the ultimate decision must be
rational’.
40
After referring to a passage from
Minister of Justice and
Constitutional Development v Chonco
,
41
Yacoob ADCJ said:
‘
It
follows that both the process by which the decision is made and the
decision itself must be rational.
Albutt
is
authority for the same proposition….'
And later:
42
'The conclusion that
the process must also be rational in that it must be rationally
related to the achievement of the purpose for
which the power is
conferred, is inescapable and an inevitable consequence of the
understanding that rationality review is an evaluation
of the
relationship between means and ends. The means for achieving the
purpose for which the power was conferred must include
everything
that is done to achieve the purpose. Not only the decision employed
to achieve the purpose, but also everything done
in the process of
taking that decision, constitutes means towards the attainment of the
purpose for which the power was conferred.'
[70] In this case the
Director-General was pertinently aware that there were a number of
organisations – including the Scalibrini
Centre – with
long experience and special expertise in dealing with asylum-seekers
in Cape Town. His representative, Mr Yusuf,
had specifically
undertaken to consult with those organisations on any proposal to
close the Cape Town office. In the absence of
any explanation for not
having done so, I am left to infer that the Director-General’s
failure to hear what they might have
to say when deciding whether
that office was necessary for fulfilling the purpose of the Act, was
not founded on reason and was
arbitrary. Even more so to stage what
was in truth a charade that could only have misled interested parties
as to the intentions
of the authorities, which was inconsistent with
the responsiveness, participation and transparency that must govern
public administration.
[71] On this issue I agree with
what was said by the court below:
'The purpose of the
power conferred by
s 8(1)
of the
Refugees Act is
to ensure that there
are as many RROs in South Africa as are needed for the purposes of
the Act. Ultimately the person whose judgment
on that question is
decisive is the DG but in order to reach his conclusion he must
follow a process which is rationally connected
to the attainment of
that purpose. Section 8(1) imposes one express process requirement as
an aid to rational decision-making,
namely consultation with the
SCRA. This does not mean, however, that nothing else need be done.
Internally the DG must follow a
proper process of investigation. In
addition, however, I consider that he could not achieve the statutory
purpose without obtaining
the views of the organisations representing
the interests of asylum seekers. His decision obviously would affect
asylum seekers.
The information available to the DHA internally and
through the SCRA might tell the DG what he needed to know concerning
the DHA's
operational procedures, its capabilities and its history of
operational problems in Cape Town but would not give him the
perspective
(or the full perspective) from the asylum seekers' side.
This perspective appears to me to have been of obvious importance in
reaching
a rational conclusion as to whether or not an RRO in Cape
Town was needed.
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.'
43
[72] That conclusion
in this case does not have as a consequence that there is a general
duty on decision makers to consult organisations
or individuals
having an interest in their decisions. Such a duty will arise only in
circumstances where it would be irrational
to take the decision
without such consultation, because of the special knowledge of the
person or organisation to be consulted,
of which the decision maker
is aware. Here the irrationality arises because the Director-General,
through his representatives,
at the meeting on 7 May 2012,
acknowledged the necessity for such consultation. That he did so is
not surprising bearing in mind
that the organisations represented at
that meeting included not only the Scalabrini Centre, with its close
links to the refugee
community, but also the United Nations High
Commissioner for Refugees, and organisations close to the challenges
relating to alleged
refugees.
[73] On that ground I agree with
the court below that the decision of the Director-General was
unlawful, and fell to be set aside,
as the court did in para (a) of
its order. I have difficulty, however, with the remaining orders.
[74] Once having found the
decision to be unlawful for want of consultation with the standing
committee, I can see no basis for
having decided the office should be
re-opened, and compelling the authorities to do so, without such
consultation. The fate of
the office is for the Director-General to
decide, and there were no grounds for a court to supplant that
function, least of all
without itself hearing what the standing
committee might have to say. That is even more the case where the
basis for holding the
decision to have been unlawful was the
irrationality of the process by which that decision was taken.
[75] We were informed from the
bar, however, that the order was intended only to maintain the status
quo while the Director-General
made a fresh decision. If that is so
there are two further difficulties. First, once having found, as the
court did, that closing
the office would be irrational, it is
difficult to see what scope would be left for the Director-General to
reach any other conclusion,
which means, effectively, the order is
not temporary at all. Secondly, the order does not correctly reflect
the status quo. At
the time the application was brought the status
quo was that the office was operating from premises that would cease
to be available
within ten days, and alternative premises had not
been identified. The status quo was that the authorities were faced
with taking
steps, within their means, and subject to administrative
and budgetary constraints, to locate alternative premises for the
continuation
of the office. If an order maintaining the status quo
was to be made, it ought to have been confined to compelling the
authorities
to proceed on that course.
[76] Courts ought not to compel
the impossible. Contrary to the protestations of the authorities, the
learned judge was of the view
that the order was capable of being
complied with, but I do not think the information in the papers was
sufficient for that conclusion.
There is no indication that premises
are readily available, and the authorities pointed out that they are
obliged to function within
the framework of government procurement
constraints, which a court has no authority to override.
[77] Moreover, litigants who are
required to comply with court orders, at the risk otherwise of being
in contempt if they do not,
must know with clarity what is required
of them. An order that a ‘fully functional’ office must
be established seems
to me to fall far short of that clarity.
[78] I have no difficulty
endorsing the order declaring unlawful, and setting aside, the
decision of the Director-General, but in
my view it was premature for
the remaining orders to have been made. Before us counsel for the
Scalabrini Centre proposed alternative
orders referring the matter
back to the Director-General for a fresh decision to be made within
three weeks, and directing the
authorities meanwhile to allow new
applicants for asylum to apply for the relevant permits. That seems
to me to be little more
than a reformulation of the order of the
court below.
[79] No doubt the
Director-General will be compelled by circumstances to consider
afresh the future of the Cape Town Refugee Reception
Office, and we
cannot say the outcome is a foregone conclusion. In those
circumstances it would be unreasonable to order the re-establishment
of the office if it turns out that a lawful decision will not end in
that result, and if it turns out that the Director-General
decides
otherwise, no such order will be called for. In my view an equitable
order would be one that allows the Director-General
an opportunity to
consider afresh, after consulting with the interested parties, what
is to become of the Cape Town office. If
no decision is made within
the stipulated time the Scalabrini Centre should be given leave to
approach the court below for further
relief – the parties
having leave to place before the court the factual position at that
time.
[80] Finally there is the matter
of costs. The authorities have succeeded in setting aside part of the
order that was made, but
persisted in defending the lawfulness of the
decision, which was the foundation for the claim. My finding that the
decision was
unlawful constitutes substantial success for the
Scalibrini Centre and the first to third appellants ought to pay
their costs.
The interim order by Davis J lapsed upon the grant of
the order on review, with the consequence that there is no order now
subject
to appeal. The first to third appellants brought that
application at that risk and it ought to pay those costs.
[81] Save for setting aside
paragraphs (b) and (c) of the order of the court below, and
substituting them with the order that follows,
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 (b) and (c) are substituted with the following:
‘
In the
event that a decision as to the future of the Cape Town Refugee
Reception Office has not been made by 30 November 2013, the
applicants are granted leave to apply upon the same papers,
supplemented so far as they consider that to be necessary, for
further
relief’.
__________________
R W NUGENT
JUDGE OF APPEAL
WILLIS JA:
[82] It has been edifying to read
the judgment of Nugent JA. I concur with much of what that he has
said. I regret that I disagree
with his conclusions.
Bato
Star Fishing (Pty) Limited v Minister of Environmental Affairs and
Others
44
provides the lodestar by which to
navigate one’s way through this case.
Bato
Star
makes it clear
that the decision by the Director-General of Home Affairs, which has
been the subject of judicial scrutiny both in
the High Court and this
Court constitutes ‘administrative action’ in terms of
section 1 of the Promotion of Administrative
Justice Act 3 of 2000
(‘PAJA’).
[83] If the decision of the Chief
Director in the Department of Environmental Affairs and Tourism
relating to the allocation of
fishing quotas was held by the
Constitutional Court to have been reviewable as administrative action
in terms of PAJA in
Bato
Star
then, by parity
of reasoning, so must this decision of the Director-General. Both
Bato Star
and this case have involved
questions of policy and, ultimately, of ‘politics’ as
well as the ‘exercising of a
public power’
45
and the ‘performing of a
public power in terms of an empowering provision,’
46
as provided for in PAJA. Fishing
quotas in South Africa are about sustainable development and economic
transformation (an issue
which loomed large in
Bato
Star
). No less than
asylum for refugees, both sustainable development and economic
transformation demand wisdom and compassion if we
are to have a
future on this planet. Both sustainable development and the tragedy
that there should even be refugees require that
we develop a
deepening awareness, among all people, of our shared humanity.
[84] As the judgement of Nugent
JA makes plain, the obligations of the government to refugees are
neither unrestrained nor unconfined.
The material resources of
governments are limited. That is why they often have to make
difficult decisions, an example of which
is whether or not to
continue with the operation of a Refugee Reception Office in Cape
Town. There cannot be, inherently, a 'legitimate
expectation', as
provided for in s 3(1) of PAJA, on the part of anyone to have a
Refugee Reception Office in any specific
geographic location in the
country, including Cape Town. So, too, there can no inherent ‘right’
on the part of the
public, as envisaged by s 4(1) of PAJA, to have a
Refugee Reception Office specifically in Cape Town, or at any other
particular
place, for that matter. Nugent JA and I agree on these
substantive issues.
[85] In the court below much
attention was focused on the provisions of s 6(2) of PAJA, in
particular, ss 6(2)(
f
)(ii),
which relates to the rationality of the decision and 6(2) (h) which
relates to reasonableness of the decision.
[86] The decision of the
Director-General was not an irrational one. It does not fall foul of
any of the tests in PAJA and, more
particularly cannot be found, in
the formulation of
Bato
Star
, to have been one
that a reasonable decision-maker could not reach.
47
[87] In any event, as was made
clear in
Pharmaceutical
Manufacturers Association of South Africa and Another: in Re Ex Parte
President of the Republic of South Africa and
Others
48
the exercise of all public power
is, under our constitutional order, subject to judicial scrutiny. I
agree with Nugent JA in this
regard.
[88] As I consider that there was
no legal obligation whatsoever on the part of the Director-General to
have consulted with the
Scalabrini Centre before making its final
decision in the matter – even though this may have been
desirable – I disagree
with Nugent JA when he says, in
paragraph 70 above, that the ‘Director-General’s failure
to hear what they (the Scalabrini
Centre and others) might have to
say when deciding whether that office was necessary for the
fulfilment of the purposes of the
Act was not founded on reason and
was arbitrary’.
[89] Besides, even if I am wrong
with regard to the right of the public to be consulted on the
question of the closure of Refugee
Reception Office in Cape Town, the
context in which the decision was made to close the office justifies
the procedures that were
adopted in the final stages of that
decision-making process. As Lord Steyn said in
R
v Secretary of the State for the Home Department, ex parte Daly,
49
‘
[i]n law, context is
everything’. This dictum was approved by this court in
Aktiebolaget Hässle
and Another v Triomed (Pty) Ltd
.
50
As the decision approached
finality, the Director-General’s patience may have worn thin
but I do not consider that he was
the architect of a charade. The
history of the matter shows that the Director-General and the
Department of Home affairs did not
act impulsively but took a
decision after careful deliberation on what had been a protracted and
difficult matter.
[90]
More
than 2000 years ago, the Roman playwright
Roman
comic playwright, Publius Terentius Afer (Terence) wrote in
Phormio
:
“
Quot
homines, tot sententiae
:
suo
quoique mos
’
.
– ‘There are as many opinions as there are people (men in
the original): each has his own correct way’. This
aphorism is
apposite in this case. There is an extensive range of legitimate
opinions which may be formed as what should be done
about this
Refugee Reception Office. Opinions among reasonable men and women may
differ.
That is why
we have politics. That is why, when it comes to political matters in
a constitutional state such as ours, the courts
will, as a general
rule, hold their swords behind their backs. Ordinarily, moreover, the
courts will, in such matters, hold the
sword in their left hands and
their shields in the right: the courts hold up the shield in
preference to the sword when it comes
to political matters of policy.
[91] I should have upheld the
appeal and dismissed the application in its entirety with costs,
including the costs of two counsel.
_______________
N P WILLIS
JUDGE OF APPEAL
WALLIS JA: (NUGENT, LEWIS and
THERON CONCURRING)
[92] I concur in the judgment of
Nugent JA. This judgment serves only to explain why I am unable to
agree with my colleague, Willis
JA, that
Bato
Star Fishing (Pty) Limited v Minister of Environmental Affairs &
others
51
disposes of the question whether
the Director-General’s decision to stop processing fresh
applications for asylum at the Cape
Town RRO, with its ultimate
consequence that the RRO will be closed, constitutes administrative
action in terms of PAJA.
[93] The fundamental ground for
my disagreement with my colleague lies with his approach that we can
determine whether the Director-General’s
decision in this case
under the Refugees Act was administrative action, by referring to
another case, dealing with a different
decision taken in terms of a
different statute about a different subject matter. That is not how
the Constitutional Court has enjoined
courts to undertake the enquiry
whether particular conduct is administrative action. The enquiry we
must undertake is into the
nature of the very power under
consideration in the particular case. The power being exercised in
Bato Star
was
fundamentally different from the power being exercised here by the
Director-General, as is demonstrated by the following analysis.
[94]
Bato
Star
dealt with the
allocation of fishing quotas in the deep sea trawl sector of the hake
fishing industry. The process by which those
quotas were allocated
initially involved a screening process in accordance with a detailed
scoring system. The scores determined
by this system formed the basis
for the Chief Director’s allocation of quotas. His approach was
to start from the existing
quota held by applicants and to deduct 5%
from those quotas and place the tonnages of permissible catch in a
redistribution pool.
That pool was then redistributed among existing
rights holders in direct proportion to the scores they had achieved
in the screening
process. The process involved ‘each
application [being] carefully considered and rated according to a
range of criteria identified
as relevant by the Department.’
52
[95] In those circumstances it
was common cause that the determination of the quota to be allocated
to each applicant involved administrative
action. The only issue in
that regard was whether the decision fell to be reviewed under the
common law as set out in
Johannesburg
Stock Exchange & another v Witwatersrand Nigel Ltd &
another
,
53
or under PAJA. There is no
analysis of the nature of the power being exercised by the Chief
Director, but no doubt that was because
a power of that nature has
always been regarded as administrative in nature and subject to
review. It was nothing more, nor less,
than a decision to grant a
licence and such decisions are quintessentially administrative
decisions that have always been subject
to judicial review.
54
[96] If one examines the power
being exercised in
Bato
Star
one sees
that the Chief Director had to
exercise it in order to allocate fishing quotas in the light of a
detailed screening process that
had allocated scores to every
applicant for a quota. In turn the Chief Director took as the
starting point existing quotas, which
recognised existing rights,
removed a portion of such quota to create the redistribution pool and
then re-allocated quotas in accordance
with the results of the
initial screening. The determination of the factors that would be
taken into account in terms of the screening
process flowed from the
terms of the governing statute. The Chief Director did not have any
discretion in that regard, nor was
he determining policy. The policy
was clearly embodied in the statute. The power being exercised by the
Chief Director, whilst
of great importance to participants in the
industry, involved little discretion. He was granting a licence in
accordance with a
policy prescribed in legislation. It is not
surprising that this was regarded as administrative action. The
implementation of policy
by way of the grant or refusal of rights in
accordance with clearly defined processes of evaluation is
administrative in nature.
[97] The present is an entirely
different situation. It concerns the manner in which the state
determines how it will discharge
its international law obligations as
enshrined in the
Refugees Act. This
requires the establishment of
Refugee Reception Offices and the appointment of appropriate persons
to perform the functions required
by that Act. The responsibility for
doing this on behalf of the executive is that of the
Director-General. As Nugent JA has explained
in para 58 of his
judgment, that involves an assessment of the need for such
facilities. The Director-General has to determine
the locality in
which the offices will be situated and the number of Refugee
Reception Officers and Refugee Status Determination
Officers needed
to meet anticipated demand for their services. In turn that requires
the Director-General to determine what else
will be necessary to
enable the offices to function, including the needs of the Department
to maintain central records of its dealings
with asylum seekers. An
adequate budget will need to be prepared as well as a system for
monitoring whether the operations of such
offices is appropriate in
the light of the overall need for them. This, as the Director-General
explained in his affidavit, can
fluctuate depending on political
events beyond our borders, which affect the flow of refugees and the
ability of refugees to return
to their home countries. It is
accordingly necessary for the Director-General on an ongoing basis to
evaluate whether the facilities
that have been put in place to deal
with asylum seekers are appropriately situated, staffed and funded.
[98] None of this involves the
determination of any asylum seeker’s rights, which is what is
involved in the administration
of the
Refugees Act. It
requires the
Director-General to decide how the Act is to be implemented. That is
something to be determined as a matter of policy,
subject to
budgetary constraints, the availability of suitable facilities and
suitable staff. That this is a policy question is
apparent from the
fact that the Director-General was influenced in making his decision
by a possible shift in governmental policy
in dealing with asylum
seekers to one where it is regarded as preferable for them to be
dealt with at places that are close to
our borders and their points
of entry into this country. Whether that is indeed preferable to the
original decision to have Refugee
Reception Offices located both at
the principal point of entry (Musina) and in our five largest cities,
is a debatable question.
It will undoubtedly make it more difficult
for refugees to settle in some areas until after they have been
granted asylum. But
the important point is that the debate is one
that takes place within the executive where the decision falls to be
taken. That
demonstrates that the decision does not constitute
administrative action.
[99] I cannot therefore accept
that
Bato Star
is
determinative of the question whether the Director-General’s
decision constituted administrative action. It is therefore
unnecessary to explore the implications of that conclusion. However,
a contrary finding would necessarily mean that the decision
materially and adversely affected the rights or legitimate
expectations of any person or the rights of the public. In turn that
conclusion would direct us to the provisions of sections 3 and 4 of
PAJA and the obligation either to afford affected persons a
hearing
or, more probably, given the nature of the decision, to undertake a
notice and comment exercise in terms of s 4. Those
obligations
cannot be escaped, although the manner in which decision makers
comply with these obligations may vary. They certainly
cannot be
avoided where there has been an undertaking to consult with
interested parties, including Scalabrini Centre, over the
issue. One
cannot, as my colleague Willis does, simply assert that the
Director-General was under no obligation to engage in such
consultation. Nor can it be suggested, as he also does, that a
complete failure to engage in consultation on an issue may constitute
a permissible departure
55
from the procedures prescribed in
sections 3 and 4 of PAJA.
__________________
M J D WALLIS
JUDGE OF APPEAL
APPEARANCES
For
Appellant: M A Albertus SC
G
R Papier
G
G M Quixley
Instructed by:
The State Attorney, Cape Town
The State Attorney, Bloemfontein
For Respondent: S Budlender
N Mayosi
J Bleazard
Instructed by:
W R Kerfoot & Ms Khan, Cape
Town
1
Minister
of Home Affairs v Watchenuka
2004 (4) SA 326
(SCA).
2
The
Minister of Public Works was also cited but has played no part in
the proceedings and abides the decision of the court.
3
Reported
as
Scalabrini Centre v Minister of Home Affairs
2013 (3) SA
531
(WCC).
4
Reported
as
Somali Association for South Africa v Minister of Home Affairs
2012 (5) SA 634
(EC).
5
Said
in the affidavits to be tenants, but described in
Kiliko v
Minister of Home Affairs
2006 (4) SA 114
(WCC) para 9 as ‘other
operational divisions of the Department’
6
Reported
as
Intercape Ferreira Mainliner (Pty) Ltd v Minister of Home
Affairs
2010 (5) SA 367
(WCC)
7
Reported
as
410 Voortrekker Road Property Holdings CC v Minister of Home
Affairs
[2010] 4 All SA 414
(WCC).
8
The
attendance list reflects attendance on behalf of the SA Red Cross,
the United Nations High Commissioner for Refugees, the
Legal
Resources Centre, the University of Cape Town Refugee Law Clinic,
the Somali Association of South Africa, the Somali Community
Board,
the Somali Bellville Business Association, the Adonis Musati
Project, the Avenir Empowerment Centre, Friends from Abroad,
Scalabrini Centre, the University of the Witwatersrand, and others.
9
R
v Secretary of State for Social Services: Ex parte Association of
Metropolitan Authorities
[1986] 1 All ER 164
(QB);
Hayes v
Minister of Housing, Planning & Administration, Western Cape
1999 (4) SA 1229
(C) at 1242 C-F.
10
Port
Louis Corporation v Attorney-General of Mauritius
[1965] AC 1111
(PC) 1124 d-e.
11
Sinfield
v London Transport Executive
[1970] 2 All ER 264
(AC) 269 c-e.
12
S
v Smit
2008 (1) SA 135
(T) at 149A –
153H.
13
Port
Louis Corporation v Attorney-General of Mauritius,
above, at
1124 D-E.
14
Para
69.
15
Para
79.
16
Para
90.
17
Para
109.
18
Para
111.
19
Grey’s
Marine Hout Bay (Pty) Ltd v Minister of Public Works
[2005] ZASCA 43
;
2005 (6) SA
313
(SCA) para 23.
20
Para
69.
21
Para
22.
22
Sokhela
v MEC for Agriculture and Environmental Affairs
2010 (5) SA 574
(KZN) para 61.
23
President
of the Republic of South Africa v South African Rugby Football Union
2000 (1) SA 1
(CC) para 143.
24
Pharmaceutical
Manufacturers Association of SA: In re Ex parte President of the
Republic of South Africa
[2000] ZACC 1
;
2000 (2) SA 674
(CC) para 45.
25
International
Trade Administration Commission v Scaw South Africa (Pty) Ltd (ITAC
2012 (4) SA 618
(CC) para 90.
26
Ex
parte Chairperson of the Constitutional Assembly: In re
Certification of the Constitution of the Republic of South Africa
,
1996 (4) SA 744
(CC).
27
National
Treasury v Opposition to Urban Tolling Alliance
2012 (6) SA 223
(CC) para 63.
28
Doctors
for Life International v Speaker of the National Assembly
[2006] ZACC 11
;
2006
(6) SA 416
(CC).
29
Cora
Hoexter:
Administrative Law in South
Africa
2 ed p 148.
30
Jeffrey
Jowell ‘Of Vires and Vacuums: The Constitutional Context of
Judicial Review’
1999
Public Law
448
at 451.
31
[1996] ZACC 10
;
1996
(3) SA 850
(CC) para 180.
32
Per
Ngcobo CJ in
Albutt v Centre for the Study of Violence and
Reconciliation
2010 (3) SA 293
(CC) para 49.
33
Above
at 254.
34
Above,
para 85.
35
Pharmaceutical
Manufacturers Association
, above, para
90.
36
Masethla
v President of the Republic of South Africa
[2007] ZACC 20
;
2008
(1) SA 566
(CC) para 81.
37
Albutt
v Centre for the Study of Violence and Reconciliation
2013
(1) SA 248
(CC).
38
Paras
50-51.
39
Democratic
Alliance v President of the Republic of South Africa
2013
(1) SA 248
(CC).
40
Para
12.
41
Minister
of Justice and Constutional Development v Chonco
2010
(4) SA 82
(CC).
42
Para
36.
43
Paras
95 and 96.
44
Bato
Star Fishing (Pty) Limited v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC).
45
Section
1 of PAJA.
46
Ibid.
47
Ibid
para 44.
48
Pharmaceutical
Manufacturers Association of South Africa and Another: in Re Ex
Parte President of the Republic of South Africa
and Others
[2000] ZACC 1
;
2000
(2) SA 674
(CC).
49
R
v Secretary of the State for the Home Department, ex parte Daly
[2001] UKHL 26
;
[2001] 3 All ER 433
(HL) at 447a.
50
Aktiebolaget
Hässle and Another v Triomed (Pty) Ltd
2003 (1) SA 155
(SCA) para 1.
51
Bato
Star Fishing (Pty) Limited v Minister of Environmental Affairs &
other
s
[2004] ZACC 15
;
2004 (4) SA 490
(CC).
52
Para
56.
53
Johannesburg
Stock Exchange & another v Witwatersrand Nigel Ltd & another
1988 (3) SA 132
(A) at 152A – D.
54
See,
for example,
Loxton v Kenhardt Liquor Licensing Board
1942 AD
275
dealing with liquor licences and
Bangtoo Bros v National
Transport Commission
1973 (4) SA 667
(N) involving a review of
the refusal to grant a motor carrier certificate under the Motor
Carrier Transportation Act 30 of 1939.
55
Under
s 3(4)
(a)
or 4(4)
(a)
of PAJA.