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[2012] ZAECPEHC 11
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Somali Association for South Africa, Eastern Capr (SASA) EC and Another v Minister of Home Affairs and Others (3759/2011) [2012] ZAECPEHC 11; 2012 (5) SA 634 (ECP) (16 February 2012)
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE, PORT ELIZABETH
Case No.:
3759/2011
Date
Heard: 9 February 2012
Date
Delivered: 16-02-2012
In the matter between:
SOMALI
ASSOCIATION FOR SOUTH AFRICA
EASTERN
CAPE (SASA) EC
…................................................................
First
Applicant
PROJECT
FOR CONFLICT RESOLUTION AND
DEVELOPMENT
(PCRD
)
….................................................................
Second
Applicant
And
MINISTER
OF HOME AFFAIRS
….......................................................
First
Respondent
DIRECTOR
GENERAL: DEPARTMENT OF HOME AFFAIRS
…..
Second Respondent
CHIEF
DIRECTOR: ASYLUM SEEKER MANAGEMENT
…...............
Third
Respondent
STANDING
COMMITTEE FOR REFUGEE AFFAIRS
…..................
Fourth
Respondent
MINISTER OF PUBLIC WORKS
…......................................................
Fifth
Respondent
JUDGMENT
PICKERING J
:
This application, launched by the Somali Association of South Africa,
Eastern Cape, (first applicant) and the Project for Conflict
Resolution and Development (second applicant), arises out of an
alleged decision of the Minister of Home Affairs (first respondent),
Director-General: Department of Home Affairs (second respondent) and
the Chief Director of the Asylum Management Directorate (third
respondent) to close the Port Elizabeth Refugee Reception Office
without opening a suitable alternative Refugee Reception Office
(“Reception Office”) within the area of the Nelson
Mandela Bay Municipality.
The application was brought in two parts. In relation to Part A an
order was granted by consent by Beshe J on 13 December 2011
in the
following terms:
“
1.1 The First to Third Respondents are
directed to ensure that, by Wednesday 14 December 2011, they provide
at the interim annex
refugee office, the full services of a refugee
reception office to all holders of permits issued in terms of
sections 22
and
24
of the
Refugees Act 130 of 1998
;
2. The First to Third Respondents are further directed not to
impose fines or other sanctions in terms of
section 37
of the
Refugees Act 130 of 1998
for the non-renewal of permits which expired
during the period 30 November 2011 to 14 December 2011;
1.3 The First to Third Respondents are further directed to
publicise in a local newspaper as well as by way of notice
immediately
posted at the previous Port Elizabeth Refugee Reception
Office of the address of the interim annex refugee office;
2. It is recorded that the parties are agreed that Part B of this
application is urgent.”
In Part B of the application the applicants seek the following final
relief:
“
1. The decision of the First to Third
Respondents to close the Port Elizabeth Refugee Reception Office
without having in place an
alternative Refugee Reception Office
within the Nelson Mandela Bay Municipality is declared to be unlawful
and is reviewed and
set aside.
2. The First to Third Respondents are directed to ensure that:
2.1 A Refugee Reception Office remains open and fully functional
within the Nelson Mandela Bay Municipality, either at the existing
premises of the Port Elizabeth Refugee Reception Office or at some
suitable alternative premises;
2.2 The Refugee Reception Office referred to in paragraph 2.1
provides all the services contemplated by the
Refugees Act 130 of
1998
, including providing services to existing asylum seekers and
recognised refugees and accepting and adjudicating new applications
for asylum in terms of
section 21
and
22
of the
Refugees Act 130 of
1998
.
3. The costs of Part B of this application are to be paid by any
party opposing the relief sought in Part B.”
Reception Offices are established in terms of section 8 of the
Refugees Act 130 of 1998 (“the Act”). Section 8(1)
provides as follows:
“
(1) The Director-General 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.
(2) Each Refugee Reception Office must consist of at least one
Refugee Reception Officer and one Refugee Status Determination
Officer
who must-
(a) be
officers of the Department, designated by the Director-General for a
term of office determined by the Director-General;
and
(b) have
such qualifications, experience and knowledge of refugee matters as
makes them capable of performing
their functions.
(3) The Director-General must, with the approval of the Standing
Committee, ensure that each officer appointed under this section
receives the additional training necessary to enable such officer to
perform his or her functions properly.”
The Standing Committee for Refugee Affairs is itself established in
terms of section 9 of the Act. In terms of section 10 of the
Act the
chairperson and members of the Standing Committee are appointed with
due regard to their experience, qualifications and
expertise, as well
as their ability to perform the functions of their office properly.
The Standing Committee may, in terms of
s 11(b) regulate and
supervise the work of the Refugee Reception Offices and must, in
terms of s 11(d) advise the Minister or Director-General
on any
matter referred to it by the Minister or Director-General.
It is not in dispute that Refugee Reception Offices form a critical
part of the administrative machinery under the
Refugees Act and
the
Refugee Regulations. In terms of s 21(1) an application by a person
for asylum must be made in person at any Refugee Reception
Office.
Section 22 provides that the Refugee Reception Officer must, pending
the outcome of an application in terms of section
21(1), issue to the
applicant an asylum seeker permit allowing the applicant to sojourn
in the Republic temporarily subject to
certain conditions.
Where a person is recognised as a refugee, his refugee status must be
renewed every two years, in terms of regulation 15. In order
to
effect such renewal the refugee must present him or herself at the
Refugee Reception Office. Until an asylum seeker permit has
been
issued to him he is and remains an illegal foreigner. See
Kiliko
and Others v The Minister of Home Affairs and Others
2006 (4) SA
114
(C) at para [27];
Arse v The Minister of Home Affairs and
Others
2010 (7) BCLR 640
(SCA) at para [22].
The importance of Refugee Reception Offices in the scheme of the Act
cannot therefore be underestimated.
It is common cause that, pursuant to the statutory obligation to
establish Refugee Reception Offices in South Africa, five such
offices were established in Pretoria, Durban, Cape Town, Johannesburg
and Port Elizabeth respectively.
The Port Elizabeth Refugee Reception Office, which was established in
2000, was located at 5 Sidon Street, North End. It is common
cause
that the Port Elizabeth Office served a very large number of
individuals. During the period May 2010 to March 2011 for instance,
it provided assistance to approximately 22 000 persons. The
large number of persons visiting the office gave rise, however,
to
complaints from business persons and residents working or living in
proximity thereto. This led in turn to the launching of
an
application in the High Court, Port Elizabeth by certain business
owners for an order that the Minister of Home Affairs and
the
landlord of the premises occupied by the Reception Office, take steps
to abate the nuisance created by persons visiting the
office. An
order to this effect was duly granted by Jones J on 2 November 2009
(see
Stuart James Graham NO and Others v The Minister of Home
Affairs and Others,
Eastern Cape High Court, Port Elizabeth, case
no. 2016/2008).
Despite this, the problems continued and, during June 2011, six
months prior to the expiry by effluxion of time of the lease
agreement
in November 2011, the landlord advised the Department of
Home Affairs that he would not agree to a renewal thereof.
According to Mr Apleni, the second respondent herein, the process of
securing suitable alternative premises for the Reception Office
promised to be a protracted, and difficult, if not impossible, task.
According to applicants, however, various stakeholders were
advised
as early as June 2011 by Mr Lucas, the Manager of the Port Elizabeth
Reception Office, that three potential sites for the
relocation of
the Office in Port Elizabeth had been identified.
Be that as it may, the second respondent, on 7 October 2011,
addressed a letter to,
inter alia
, the various Refugee
Reception Offices, the Refugee Appeal Board and the Standing
Committee for Refugee Affairs, officially notifying
them that the
Port Elizabeth Refugee Reception Office would be “
permanently
closed as from 30 November 2011
”. This letter (Annexure
MJM10) continues as follows:
“
The Department came to this decision
after ongoing dissatisfaction expressed by local business community.
Further consideration
was also the fact that Port Elizabeth is not
located strategically to assist people who want to apply for asylum.
As a result,
the registration of new intakes for asylum (new
applications) will be discontinued with effect from Friday 21 October
2011. Existing
applications will be transferred to a nearby office to
assist applicants in finalising their asylum claims.”
It is common cause that in an attempt to resolve the situation, a
meeting was arranged on 20 October 2011 with Ms Lusu, the Acting
Provincial Manager for the Department of Home Affairs in the Eastern
Cape, and a number of stakeholders, including the two applicants.
At
this meeting Ms Lusu informed those present that the Office was
indeed scheduled to close permanently on 30 November 2011 and
that no
new asylum applications would be processed with effect from 21
October 2011. It was at this meeting that the applicants
were
provided with a copy of the letter by the second respondent dated 7
October 2011 (Annexure MJM10). Ms Lusu, however, undertook
to discuss
the concerns raised by the applicants with second respondent the
following day. On the same day, 20 October 2011, a
notice was posted
on the gate outside the reception office stating:-
“
Due to the closure of this office no
newcomers will be assisted after 21 October 2011. Kindly report to
your nearest office. We
apologise for any inconvenience.”
On 21 October 2011 Ms Lusu informed the applicants that the decision
to close the Office permanently and to cease providing services
to
new applicants for asylum was “
cast in stone
” and
would take effect that day.
It is the decision of the second respondent as encapsulated in the
letter of 7 October 2011, to close the Reception Office, which
is at
issue in this application.
Applicants aver that the decision to close the Reception Office falls
to be declared unlawful and to be reviewed and set aside
on any or
all of the following procedural and substantive grounds, namely:
(a) the decision was taken without consultation with the Standing
Committee for Refugee Affairs
(b) There was no proper public consultation or opportunity for
representations afforded to those affected by the decision; and
(c) the decision was irrational, unreasonable and based on irrelevant
considerations.
Second respondent has answered these contentions at considerable
length.
He reiterates the factors which informed his decision such as the
fact that the lease of the premises was due to expire on 30 November
2011 and the difficulty of obtaining suitable alternative premises;
the fact that the Reception Office had been the subject of
litigation
instituted by business owners in the nearby vicinity for abatement of
the nuisance caused at the premises; the fact
that the Department of
Home Affairs was in the process of considering the desirability of
relocating all the Refugee Reception
Offices to ports of entry with
regard to which a “
feasibility study
” was being
conducted, albeit that no information was forthcoming as to when such
feasibility study would be completed; and
the fact that the Port
Elizabeth Reception Office was not “strategically located”
in as much as the majority of applicants
processed by that office
were people whose entry into the country were persons coming from the
North of Africa, making Port Elizabeth
and Cape Town the farthest
points of service for them.
It is these reasons which applicants attack as being irrational and
unreasonable as set out under ground (c) above.
In the view that I take of the matter it is not necessary to deal any
further with these averments. In my view the basis upon which
the
decision is assailed as set out in ground (a) above, is decisive of
the matter.
Mr Semenya, who with Ms Manaka appeared for the first to third
respondents (there being no appearance for the remaining
respondents),
submitted that the decision to close the asylum
services at the Port Elizabeth Reception Office to “
newcomers
”
did not amount to the disestablishment of that Reception Office. In
this regard he stressed the averments made by second
respondent to
the effect that the Reception Office had been closed to new asylum
applicants only and that measures had been put
in place to assist
those persons with existing applications to “
process such
applications to their finality from a different regional office
”.
Mr Semenya submitted that the second respondent was therefore correct
in averring that the decision to stop rendering services
to the
applicants did not amount to the disestablishment of a Refugee
Reception Office especially in as much as the annex to the
Regional
Office was fully equipped and functional insofar as it was rendering
services to existing asylum applications.
I cannot agree with these submissions. In my view second respondent’s
averment to the effect that the Reception Office has
not been
permanently disestablished is little short of disingenuous. In this
regard the provisions of section 21 and 22 of the
Act bear repeating.
Section 21(1) provides:
“
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.”
Section 22 provides:
“
(1) The Refugee Reception Officer must,
pending the outcome of an application in terms of section 21(1),
issue to the applicant
an asylum seeker permit in the prescribed form
allowing the applicant to sojourn in the Republic temporarily …
.”
It is clear from these provisions that one of the core functions of a
Refugee Reception Office is to provide the necessary administrative
machinery to enable new applicants to apply for asylum. If that core
function is removed and the Reception Office closed to newcomers
then, whatever the remaining rump of the Office may be, it is clearly
not a Refugee Reception Office in terms of the Act. In the
circumstances there is no other conclusion to draw but that the Port
Elizabeth Refugee Reception Office has been permanently closed
and
thereby disestablished.
Mr Budlender, who with Mr van Garderen appeared for the applicants,
submitted that it was a necessary implication from the power
afforded
to second respondent in terms of section 8(1) of the Act to establish
as many Refugee Reception Offices as he, after consultation
with the
Standing Committee regarded as necessary, that any decision by the
second respondent to close or “to disestablish”
an
existing Reception Office could also only be taken after consultation
with the Standing Committee.
This submission is clearly correct and Mr. Semenya accepted that this
was so.
As a result of the closure of the Port Elizabeth Reception Office
there is now one less Refugee Reception Office in the Republic
than
was considered necessary at the time of its establishment in 2000.
Clearly at that time the then Director-General, after consultation
with the Standing Committee, considered that a Refugee Reception
Office in Port Elizabeth was necessary and that it was strategically
located.
It is disquieting that the second respondent did not see fit to
consult with the Standing Committee before taking the decision
to
close the Reception Office. As set out above, the chairperson and
members of the Standing Committee are appointed in terms of
section
10 of the Act with due regard to their experience, qualifications and
expertise. They must, in terms of section 11(d) advise
the second
respondent on any matter he may refer to it. As was submitted by Mr
Budlender, with reference to
Premier, Western Cape v The
President of the Republic of South Africa and Another
[1999] ZACC 2
;
1999
(3) SA 657
(CC) at para
[85]
, fn 94; and
President of the
Republic of South Africa v South African Rugby Football Union
[1999] ZACC 9
;
1999 (4) SA 147
(CC) at para
[63]
, although the second respondent is
not bound to follow the views or advice of the Standing Committee he
is obliged to consider
their views seriously and in good faith before
taking a decision. The Legislature required the second respondent to
consult with
the Standing Committee as to how many Reception Offices
were necessary in the Republic and where they were to be situated.
Equally,
second respondent is required to consult with the Standing
Committee should he be contemplating the closure of one of the
Reception
Offices with all the negative and prejudicial consequences
to vulnerable asylum seekers which would ensue therefrom. As to the
particularly vulnerable position of asylum seekers see:
Union of
Refugee Women v Director: Private Security Industry Regulatory
Authority and Others
2007 (CC) SA 395 (CC) at 406G – 407E.
Mr Semenya submitted further, however, that in the event of it being
found that the second respondent was obliged to have consulted
with
the Standing Committee, such failure to consult has not adversely
affected the rights of asylum seekers whose claims await
finalisation
because an alternative Office has been provided to deal with and
finalise those claims. There is accordingly no prejudice
to them. He
submits therefore that the impugned decision does not constitute
administrative action and is not therefore subject
to review under
the
Promotion of Administrative Justice Act 3 of 2000
.
It is not necessary to determine whether or not the decision did
constitute administrative action because it is abundantly clear
that
in exercising his powers the second respondent is constrained by the
principle of legality.
In
President of the Republic of South Africa and Others v The
South African Rugby Football Union and Others
2000 (1) SA 1
(CC) the following was stated at p. 148:
“
It does not follow, of course, that,
because the President’s conduct in exercising the power
conferred upon him by
s 84(2)
(f) does not constitute administrative
action, there are no constraints upon it. The constraints upon the
President when exercising
powers under
s 84(2)
are clear: ….
the exercise of the powers must not infringe any provision of the
Bill of Rights; the exercise of the powers
is also clearly
constrained by the principle of legality and, as is implicit in the
Constitution, the President must act in good
faith and must not
misconstrue the powers. These are significant constraints upon the
exercise of the President’s power.
They arise from provisions
of the Constitution other than the administrative justice clause.”
In all the circumstances I am satisfied that the decision taken by
the second respondent to close the Port Elizabeth Refugee Reception
Office without having first consulted with the Standing Committee for
Refugee Affairs is unlawful and falls to be set aside.
Mr. Budlender, with reference to
S v Jordaan
2006 (6) SA 642
(CC) urged me to deal also with grounds (b) and (c) as set out above.
In my view, however, where the closure of the Reception Office
was so
patently unlawful on ground (a) above it is neither necessary nor
desirable that I should do so.
Counsel submitted that in the event of the application succeeding I
should remit the matter to the second respondent for redetermination.
In my view, however, such an order would not be appropriate. It is
for the second respondent to decide whether or not he wishes
to take
the matter further, bearing in mind, if he does so, what has been
stated in this judgment.
Finally, lest there be any misunderstanding on the part of the
respondents as to the effect of the order declaring the closure
to be
unlawful I intend to add a further order thereto in terms of which
they will be ordered to re-open the Reception Office forthwith.
The following order is made:
The decision of the First to Third Respondents to close the Port
Elizabeth Refugee Reception Office without having in place an
alternative Refugee Reception Office within the Nelson Mandela Bay
Municipality is declared to be unlawful and is reviewed and
set
aside.
The first to third respondents are directed forthwith to open and
maintain a fully functional Refugee Reception Office to provide
services to asylum-seekers and refugees, including new applicants
for asylum, in the Nelson Mandela Bay Municipality.
The first to third respondents are jointly and severally directed to
pay the applicants’ costs, including the costs of
two counsel.
___________________
J.D.
PICKERING
JUDGE
OF THE HIGH COURT
Appearing
on behalf of Applicant: Adv. S. Budlender and Adv. J. Van Garderen
Instructed
by: Lawyers for Human Rights, Johannesburg Law Clinic
c/o
Refugee Rights Centre, Nelson Mandela Metropolitan University
Mr. Linto
Harmse
Appearing
on behalf of Respondents: Adv. A. Semenya S.C. and Adv. N. Manaka
Instructed
by: State Attorneys Offices, Port Elizabeth.