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[2016] ZAECPEHC 70
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Gorhan v Minister of Home Affairs and Others (3899/2015) [2016] ZAECPEHC 70 (20 October 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case no:
3899/2015
Date heard:
16/8/16
Date delivered:
20/10/16
Not reportable
In
the matter between
OMAR
ABSHIR
GORHAN
Applicant
and
THE
MINISTER OF HOME
AFFAIRS
First Respondent
THE
DIRECTOR GENERAL OF THE
DEPARTMENT
OF HOME
AFFAIRS
Second Respondent
THE
CHAIRPERSON OF THE REFUGEE
APPEAL
BOARD
Third Respondent
THE
REFUGEE STATUS DETERMINATION
OFFICER
N.O.
Fourth Respondent
JUDGMENT
PLASKET
J:
[1]
The applicant, a Somali national, left his home near Kismaayo in the
south of the Federal Republic of Somalia in about February
2011 and,
having travelled through various African countries, entered South
Africa at the Beit Bridge Border Post in about June
2011.
[2]
On the applicant’s arrival in Port Elizabeth he applied for
asylum and was issued with his first asylum seeker temporary
permit
in September 2011. During 2012, he was interviewed by a Refugee
Status Determination Officer (RSDO). On 13 March 2012, the
RSDO
rejected the applicant’s asylum application.
[3]
He took this decision on appeal to the Refugee Appeal Board (RAB). On
18 May 2015, he appeared before the RAB. He was legally
represented
in the preparation of his notice of appeal and in the hearing of the
appeal. On 23 September 2015, the RAB dismissed
the applicant’s
appeal.
[4]
As a result, the applicant launched this application to review and
set aside the decisions of the RSDO at first instance and
the RAB on
appeal. The relief sought in the applicant’s amended notice of
motion are orders:
‘
1.
Declaring that the decision of the Refugee Appeal Board (third
respondent) taken on
23 September 2015, upholding the decision of the
fourth respondent, namely the Refugee Status Determination Officer,
in terms of
section 25
of the
Refugees Act 130 of 1998
, to be
inconsistent with the Constitution, unlawful and invalid.
2.
Reviewing and setting aside the third respondent’s decision,
upholding
the decision of the fourth respondent to decline to grant
the applicant refugee status and asylum.
3.
Declaring the decision of the fourth respondent made in terms of
section 24(3)(b)
of the Refugee Act on 13 March 2012, to be
inconsistent with the Constitution, unlawful and invalid.
4.
Reviewing and setting aside the fourth respondent’s decision
rejecting
the applicant’s application for refugee status and
asylum.
5.
Declaring the applicant is a refugee who is entitled to asylum in
South Africa
as contemplated by
section 3
of the
Refugees Act.
6.
The
third and fourth respondents are ordered jointly and severally,
the one paying the other to be absolved, to pay the costs of the
application.’
[5]
The application is not opposed by any of the four respondents –
the Minister of Home Affairs, the Director-General of
the Department
of Home Affairs, the Chairperson of the RAB and the RSDO who took the
initial decision.
[6]
I was requested, after the matter had been argued, to allow the
applicant’s legal representatives time to engage with
the
respondents’ legal representatives in an effort to settle the
matter. I consequently did not deliver my judgment as expeditiously
as I otherwise would have. I have, after reserving judgment, received
supplementary heads of argument and copies of judgments from
the
applicant’s legal representatives. I have considered these.
[7]
Even though the respondents have not opposed the relief sought, I may
only interfere on review with the decisions under challenge
if I am
satisfied that one or both are tainted by a reviewable irregularity.
In other words, the applicant still bears the onus
of establishing
the presence of one or more grounds of review.
The
legislation
[8]
The Refugee Act 130 of 1998 regulates the position of persons such as
the applicant who, having left their countries of origin,
enter South
Africa and seek asylum.
[9]
The long title of the Act states that its purpose is to ‘give
effect within the Republic of South Africa to the relevant
international legal instruments, principles and standards relating to
refugees; to provide for the reception into South Africa
of asylum
seekers; to regulate applications for the recognition of refugee
status; to provide for the rights and obligations flowing
from such
status; and to provide for matters connected therewith’.
[10]
In terms of s 3 of the Act a person qualifies for refugee status –
the grant of asylum – if that person:
‘
(a)
owing to a well-founded fear of being persecuted by reason of his or
her race, tribe, religion,
nationality, political opinion or
membership of a particular social group, is outside the country of
his or her nationality and
is unable or unwilling to avail himself or
herself of the protection of that country, or, not having a
nationality and being outside
the country of his or her former
habitual residence is unable or, owing to such fear, unwilling to
return to it; or
(b)
owing to external aggression, occupation, foreign domination or
events seriously disturbing
or disrupting public order in either a
part or the whole of his or her country of origin or nationality, is
compelled to leave
his or her place of habitual residence in order to
seek refuge elsewhere; or
(c)
is a dependant of a person contemplated in paragraph (a) or (b).’
[11]
The system for the determination of the status of persons seeking
asylum is set out in chapter 2 of the Act.
[12]
In terms of s 8(1), the Director-General of the Department of Home
Affairs is empowered to establish Refugee Reception Offices.
Each
must be staffed by at least one Refugee Reception Officer (RRO) and
one RSDO. They must, according to s 8(2), ‘have
such
qualifications, experience and knowledge of refugee matters as makes
them capable of performing their functions’ and
the
Director-General is placed under a duty by s 8(3) to ensure that they
receive the ‘additional training necessary’
to enable
them to perform their functions ‘properly’.
[13]
Section 12 establishes the RAB. It is required to function without
bias and be independent.
[1]
It consists of a chairperson and at least two other members, all of
whom are appointed by the Minister of Home Affairs, who must
have due
regard to their suitability to serve on the RAB by virtue of their
‘experience, qualifications and expertise’
together with
their ‘capability to perform the functions’ of the
RAB.
[2]
[14]
The RAB’s functions include the hearing and determination of
‘any appeal lodged in terms of this Act’.
[3]
[15]
Chapter 3 of the Act regulates applications for asylum. In terms of s
21(1), an application for asylum must be made in person
to a RRO at
any Refugee Reception Office. He or she must accept applications;
must ensure they are properly completed and assist
the applicant if
necessary; may conduct enquiries that he or she deems necessary in
order to verify the information furnished by
the applicant; and must
submit applications to a RSDO, together with whatever further
information he or she has.
[4]
[16]
The powers of RSDO’s regarding applications for asylum are set
out in s 24. It provides:
‘
(1)
Upon receipt of an application for asylum the Refugee Status
Determination Officer-
(a)
in order to make a decision, may request any information or
clarification he or she
deems necessary from an applicant or Refugee
Reception Officer;
(b)
where necessary, may consult with and invite a UNHCR representative
to furnish information
on specified matters; and
(c)
may, with the permission of the asylum seeker, provide the UNHCR
representative with
such information as may be requested.
(2)
When considering an application the Refugee Status Determination
Officer must have due regard for the rights set out in section
33 of
the Constitution, and in particular, ensure that the applicant fully
understands the procedures, his or her rights and responsibilities
and the evidence presented.
(3)
The Refugee Status Determination Officer must at the conclusion of
the hearing-
(a)
grant asylum; or
(b)
reject the application as manifestly unfounded, abusive or
fraudulent; or
(c)
reject the application as unfounded; or
(d)
refer any question of law to the Standing Committee.
(4)
If an application is rejected in terms of subsection (3)(b)-
(a)
written reasons must be furnished to the applicant within five
working days after
the date of the rejection or referral;
(b)
the record of proceedings and a copy of the reasons referred to in
paragraph (a) must
be submitted to the Standing Committee within 10
working days after the date of the rejection or referral.’
[17]
Chapter 4 deals with reviews of decisions by the Standing Committee
established by s 9 of the Act and with appeals to the RAB.
Section 26
is relevant for present purposes. It provides:
‘
(1)
Any asylum seeker may lodge an appeal with the Appeal Board in the
manner and within the period provided for in the rules if
the Refugee
Status Determination Officer has rejected the application in terms of
section 24(3)(c).
(2)
The Appeal Board may after hearing an appeal confirm, set aside or
substitute any decision taken by a Refugee Status Determination
Officer in terms of section 24(3).
(3)
Before reaching a decision, the Appeal Board may-
(a)
invite the UNHCR representative to make oral or written
representations;
(b)
refer the matter back to the Standing Committee for further inquiry
and investigation;
(c)
request the attendance of any person who, in its opinion, is in a
position to provide
the Appeal Board with relevant information;
(d)
of its own accord make further inquiry or investigation;
(e)
request the applicant to appear before it and to provide any such
other information
as it may deem necessary.
(4)
The Appeal Board must allow legal representation upon the request of
the applicant.’
[18]
The system that I have outlined is a bureaucratic process. The
decisions taken by the public functionaries concerned –
RSDOs
and the RAB – are quintessentially administrative actions as
that term is defined in s 1 of the Promotion of Administrative
Justice Act 3 of 2000 (the PAJA).
[5]
If there is any doubt, the obligation placed on RSDOs to ‘have
due regard to the rights set out in section 33 of the Constitution’
tends to dispel that doubt.
[6]
[19]
Section 6(1) of the PAJA provides that anyone may institute
proceedings in a court for the judicial review of an administrative
action and s 6(2) codifies the grounds upon which administrative
action may be reviewed and set aside.
[7]
Section 8 provides an open-ended list of remedies that a court may
award in the event of finding that administrative action is
either
unlawful, unreasonable or procedurally unfair.
[20]
This case concerns an application for the review of the decisions
taken by the RSDO and the RAB. That means that the court’s
focus is on the way in which the decisions were made rather than
whether they were ‘right’ or ‘wrong’:
it
involves the judicial supervision of the legality, rather than the
wisdom, of the exercise of administrative power. Its starting
point
is that the empowering legislation concerned vested decision-making
power in the administrators concerned, and not in the
court. Baxter’s
observation about the limits of judicial review in the common law era
still holds good today:
[8]
‘
Without
statutory authority, the court may not venture to question the
merits
or wisdom of any administrative decision that may be in dispute. If
the court were to do this, it would be usurping the authority
that
has been entrusted to the administrative body by the empowering
legislation. More than this, the court would be moving beyond
its
special area of expertise.’
[21]
Because judicial review concerns the supervision by the courts of
powers granted by the legislature to the executive, it is
a process
in which the three branches of government are ‘enmeshed in a
trilateral relationship’;
[9]
and that is the reason why Chaskalson P, in
Pharmaceutical
Manufacturers Association of SA & another: In re ex parte
President of the Republic of South Africa & others
[10]
described administrative law (in which judicial review is such a core
concept) as being ‘an incident of the separation of
powers’.
[22]
In a case such as this, therefore, the focus is on how the empowered
functionaries – the RSDO and the RAB – exercised
their
powers, not on whether the court, had it been granted the same
powers, would have exercised them differently. For that reason,
it is
necessary to consider the material before the RSDO and the RAB, and
how they dealt with that material.
The
decisions under challenge
[23]
From my summary of the applicable legislation, it is clear that an
RSDO acts as a decision-maker at first instance in respect
of
applications for asylum. This officer is required to have sufficient
expertise – ‘qualifications, experience and
knowledge of
refugee matters’
[11]
– to do the job, and to have been trained if he or she was
wanting in any of these respects.
[12]
[24]
The RAB is also staffed by persons who are specialists in their
field: s 13(1) provides that those who are appointed to it
must be
suitable for the position by virtue of their ‘experience,
qualifications and expertise’.
[25]
The appeal created by s 26 is a wide one: not only is the RAB
empowered to ‘confirm, set aside or substitute’ any
decision of a RSDO, but it also has powers, inter alia, to ‘make
further inquiry or investigation’.
[13]
In other words, the appeal contemplated by s 26 is a re-hearing of
the merits. In
Tantoush
v Refugee Appeal Board & others
[14]
Murphy J dealt with the powers and functions of the RAB as follows:
‘
The
applicant has trenchantly criticised the RAB's misinterpretation of
the nature of its functions as an appellate body. As already
explained, because of the RAB's powers to gather additional evidence,
the intention of the legislature was to confer upon the RAB
an
appellate jurisdiction in the wide sense, meaning that it is not
bound to pronounce upon the merits within the four corners
of the
record of the RSDO. An ordinary appeal is one where the appellate
body is confined to the record of the body appealed against.
A wide
appeal is one in which the appellate body may make its own enquiries
and even gather its own evidence if necessary -
Tikly
and Others v Johannes NO and Others
1963
(2) SA 588
(T) at 592A - E. In both kinds of appeal the primary
function is one of reconsideration of the merits of the decision in
order
to determine whether it was right or wrong, or perhaps vitiated
by an irregularity to the extent that there has been a failure of
justice. Where the appellate body is placed in exactly the same
position as the original decision-maker it will be able to correct
lesser irregularities and will enjoy a power of rehearing de novo.’
[26]
I turn now to the attacks on the decisions of the RSDO and the RAB.
The
RSDO
[27]
In the record of his decision, the RSDO informed the applicant that
his application for asylum had been rejected as unfounded
in terms of
s 24(3)(c) of the Act.
[28]
The RSDO recorded the applicant’s claim as being that he had
left Somalia ‘because of fighting between Al Shabaab
group and
another Somali group over ruling the country’. He then set out
the grounds in terms of which asylum could be claimed,
contained in s
3 of the Act, and recorded that the burden of proving the claim for
asylum rested on the appellant. He stated that
the standard required
was ‘reasonable possibility of persecution’ which must be
‘considered in light of all circumstances
i.e. past persecution
and forward looking appraisal of risk (reasonable possibility of
persecution)’.
[29]
He furnished his reasons for the decision that the claim was
unfounded, stating:
‘
The
determination of refugee status requires an evaluation of the
applicant’s frame of mind “fear of persecution”,
however, “well-foundedness” implies that the frame of
mind must be supported by an objective situation prevailing in
own
country of origin.
Upon
evaluation of your statements it was found that your claim is
insufficient and thus not acceptable to the decision maker.
According
to the Somalia COIR 2011, Kismayo is, in general safe regardless of
clan membership.’
[30]
In his application, the applicant had, in answer to the question as
to why he had applied for asylum, said that he had left
Somalia
‘because of civil war and if I go back I’ll be killed’.
In the interview notes that are part of the rule
53 record, two
issues are noteworthy. First, it is recorded that the applicant did
not require the services of an interpreter.
Secondly, his version was
recorded as follows:
‘
He
left his country because of fighting between Al Shabaab group and
another Somali group over ruling the country. All his children
are
married so he did not have any responsibility towards them and his
wife is still there because they did not have enough finance
to leave
with her, he sends money to her whenever he can and he intends to
bring the wife when he makes enough money to bring her.’
[31]
In his founding affidavit, the applicant stated that the decision of
the RSDO was irregular because it was materially influenced
by an
error of law; was not rationally connected to the information before
him; was taken as a result of irrelevant considerations
being
considered and relevant considerations being ignored; was
unreasonable; and was ‘unconstitutional and unlawful’.
The founding affidavit contains no factual allegations that support
these legal conclusions.
[32]
It is not suggested in the founding affidavit that the recordal of
the facts in the eligibility determination form for asylum
seekers
(dated 13 August 2011), the RSDO’s interview notes (dated 13
March 2012) and the record of decision (also dated 13
March 2012) are
inaccurate in any way.
[33]
In these documents the applicant said he left Somalia ‘because
of civil war’ and ‘because of fighting between
Al Shabaab
and another group over ruling the country’. No other facts were
provided and it became clear that he had lied
about his wife, stating
that she was still alive whereas he later said she had been killed by
a stray bullet.
[34]
The information, gleaned from the applicant, that was before the RSDO
was that the applicant had left Somalia because of civil
war. In
other words, the claim for asylum was based on s 3(b): the applicant
had to establish that owing to events seriously disturbing
or
disrupting public order in Somalia, he was compelled to leave and
seek refuge elsewhere. It was not part of the applicant’s
claim
that he fell within the terms of s 3(a) – a well-founded fear
of persecution as a result of race, tribal affiliation,
religion,
nationality, political opinion or membership of a particular social
group. (On the different facts set out in the founding
affidavit, the
applicant would not fall within s 3(a) either, but that is neither
here nor there because this version was not before
the RSDO.)
[35]
It was in the context of the claim based on civil war causing the
applicant to leave Somalia that the RSDO referred to the
country
information report available to him concerning the current situation
in Somalia, namely that Kismaayo was, in general,
safe. The RSDO was
entitled to have regard to this information.
[15]
There is no allegation in the founding papers that the RSDO made use
of this information in a procedurally unfair manner by not
affording
the applicant a fair opportunity of dealing with it.
[36]
In the heads of argument the point was taken that ‘the
respondents’ failed to assist the applicant in his application
for refugee status and during his interview with the RSDO; and that,
as a result, s 24 of the Act was not complied with. This argument
has
no merit because there is absolutely no evidence in the applicant’s
founding affidavit in support of it.
[37]
In summary, the RSDO had before him a version, the credibility of
which he doubted, which, because of his information about
the current
situation in Somalia, did not pass muster: it failed to establish the
need for the applicant to seek refuge in South
Africa. In my view,
the applicant has not established any ground upon which the decision
of the RSDO may be reviewed and set aside.
The
RAB
[38]
The appeal hearing before the RAB is a complete rehearing. In the
applicant’s appeal, he was legally represented and
a detailed
affidavit was submitted. So too were a number of documents concerning
the current situation in Somalia and heads of
argument. It was thus a
re-hearing in the fullest sense. Even if I am wrong in respect of my
conclusion that the hearing before
the RSDO was free of reviewable
irregularity, the appeal was capable of curing any irregularity that
there may have been.
[39]
In the founding affidavit no distinction was drawn concerning the
attacks upon the decision of the RSDO and the RAB: the same
grounds
of review apply to both.
[40]
The applicant placed a more complete version before the RAB than he
appears to have done before the RSDO. A detailed affidavit
told of
how he had farmed on land owned by him in an area called Jamami about
60 kilometres from Kismaayo. He also owned a boat
which he used to
transport people on the Juba River.
[41]
He came into conflict with Al Shabaab, then engaged in a struggle for
control of the area with a warlord, Bare Hirale. Al Shabaab
wanted
his land and his boat and detained him. He was released after three
days. Al Shabaab wanted him to join it and offered him
employment in
return for his land and boat. As a result of fear that he would
be targeted by Al Shabbab for failing to co-operate,
he left Jamami
for Kismaayo.
[42]
In Kismaayo, he said, he was ‘internally displaced for about
three months’. On realising, he said, that he
could not
depend on the government to protect him, and Al Shabbab taking
control of Kismaayo, he fled Somalia.
[43]
As with the decision of the RSDO, s 3(a) of the Act does not arise.
On the facts set out above, whatever well-founded fear
of being
persecuted the applicant may have harboured, he was not going to be
persecuted by reason of his ‘race, tribe, religion,
nationality, political opinion or membership of a particular social
group’.
[44]
The RAB, like the RSDO, found that the applicant’s version
lacked credibility for various reasons, including the fact
that he
lied about his wife, made a frankly nonsensical attempt to explain
that and, at a late stage, also said for the first time
that his
father had also been killed in the conflict. It found that he had
‘failed to give a coherent and plausible version
of how he was
personally affected by the above fighting to the extent that he was
compelled to leave his habitual place of residence
to seek refuge in
foreign countries’.
[45]
Secondly, the RAB took the view that the fact that the applicant’s
five children and three siblings still reside in Kismaayo
tended to
show that ‘the impact of the insecurity situation in Somalia,
particularly in Kismaayo on the appellant and his
family did not
compel the appellant to surrender the protection of Somalian
government to seek refuge elsewhere hence his family
is still in
Kismaayo’. This, it said, was ‘supported by the evidence
of the appellant to the effect that Kismaayo is
now under the control
of government soldiers, and this shows a relative stability in
Kismaayo and a safe place to return to’.
[46]
The RAB concluded as follows on the credibility issue:
’
28.
The Board is entitled to accept that there was a civil war in Somalia
between government forces and rebel groups, in particular
Al-shabaab
militants and that the attendant unrest has caused serious
disturbances or disruption to public order.
29.
However the contradictory factual accounts of the effect of situation
on the appellant personally does not support a finding,
based on
evidence before the Board, that he was compelled to leave his country
of origin in the sense required for him to qualify
as a refugee in
terms of
section 3(b)
of the
Refugees Act
>.
30.
For the appellant to qualify as a refugee, his evidence regarding a
reasonable possibility of persecution or harm must be coherent
and
plausible. It must not run counter to generally known facts.
31.
Consequently the Board cannot give the appellant the benefit of doubt
since, when looking at the totality of evidence in this
case, his
factual accounts is not plausible.’
[47]
The RAB then considered what it termed objective information
concerning the position in Somalia from 2011 to 2014, including
constitutional reform and the holding of elections in 2012; the
recapture in early 2013 by Somali government forces and the African
Union Mission in Somalia (AMISOM) of ‘all of Somalia’s
major urban centres from Al-Shabaab’, although, it said,
Al-Shabaab still controlled most rural areas; the strengthening of
the military forces in Somalia with the deployment by the United
Nations of 4 000 troops to augment the approximately 22 000
African Union troops; and the launching of extensive military
operations in March 2014 ‘to remove Al-Shabaab from all the
remaining areas in the southern parts of Somalia that were still
under its control’ and, in August 2014, the launching of ‘an
operation in the Indian Ocean with the mandate of cleaning
up the
remaining rebels in the countryside’.
[48]
On the basis of this information, the RAB concluded that, in
‘applying forward looking approach, the Board finds that
there
is no reasonable possibility of persecution or harm if the appellant
returns to his country of origin’.
[49]
I can see no misdirection in the RAB’s factual findings and its
conclusions drawn from the facts: the appellant had only
himself to
blame for the adverse credibility findings made against him as a
result of his untruthfulness, for changing his version
and for
offering a nonsensical explanation for doing so. There is, in the
absence of misdirection on the part of the RAB –
and I can
detect none – no basis upon which I may interfere with its
decision.
[50]
Furthermore, the RAB, in the application of its expert knowledge,
took into account events that tended to indicate that there
was no
reason why the appellant could not return to Somalia. The fact that
the appellant’s legal representatives put forward
a different
picture in the documents that they lodged with the appeal does not
avail the appellant: it was for the RAB to determine
the facts and,
in the absence of any other ground of review, it is only within the
narrow ambit of material mistake of fact as
a ground of review that I
would be able to interfere.
[51]
In
Dumani
v Nair & another
[16]
Cloete JA considered the scope of this relatively recently developed
ground of review. He held (in the context of a comparative
analysis
of this ground of review):
[17]
‘
In
none of the jurisdictions surveyed by the authors have the courts
gone so far as to hold that findings of fact made by the
decision-maker
can be attacked on review on the basis that the
reviewing court is free, without more, to substitute its own view as
to what the
findings should have been — ie an appeal test. In
our law, where the power to make findings of fact is conferred on a
particular
functionary — an “administrator” as
defined in PAJA — the material-error-of-fact ground of review
does
not entitle a reviewing court to reconsider the matter afresh.’
In
order not to intrude too far into the merits, the error of fact must
relate to a fact that is objectively verifiable –
one that can
be ‘established in the sense that it is uncontentious and
objectively verifiable’.
[18]
[52]
The facts relating to the current situation in Somalia do not fall
within this narrow band with the result that, even if the
RSDO’s
and the RAB’s factual findings were incorrect, they are not
reviewable on that basis.
The
result
[53]
As the applicant has failed to establish any ground of review in
respect of the decisions taken by both the RSDO and the RAB,
the
application cannot succeed.
[54]
The application is dismissed.
__________________________
C
Plasket
Judge
of the High Court
APPEARANCES
For
the applicant: M Veldsman instructed by the NMMU Refugee Rights
Centre
For
the respondents: No appearance
[1]
Section
12(3).
[2]
Section
13(1).
[3]
Section
14(1)(b).
[4]
Section
21(2).
[5]
See the
distinction drawn in
Minister
of Home Affairs & others v Scalabrini Centre & others
2013 (6) SA 421
(SCA), paras 97-98 between the policy laden
executive functions of deciding where to establish Refugee Reception
Offices, how
many staff to employ in them and where to situate them,
on the one hand, and the administrative function of determining the
rights
of asylum seekers, on the other. See too
Grey’s
Marine Hout Bay (Pty) Ltd & others v Minister of Public Works &
others
[2005] ZASCA 43
;
2005 (6) SA 313
(SCA), paras 21-24.
[6]
Section 33
deals with the fundamental right to just administrative action.
Section 33(1)
entrenches rights to administrative action that is
lawful, reasonable an procedurally fair while
s 33(2)
creates a
general right to reasons.
Section 33(3)
requires national
legislation to give effect to these rights. That legislation is the
PAJA.
[7]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs &
others
[2004] ZACC 15
;
2004 (4) SA 490
(CC), paras 24-25.
[8]
Baxter
Administrative
Law
at 305. See too Hoexter
Administrative
Law in South Africa
(2 ed) at 61. (‘A fundamental limitation is that the focus of
review is essentially on the legality of a decision rather
than its
merits: a court of review is not supposed to approve or disapprove
the decision but merely to consider whether it was
arrived at in an
acceptable manner.’)
[9]
Baxter
(note 8) at 300.
[10]
Pharmaceutical
Manufacturers Association of SA & another: In re ex parte
President of the Republic of South Africa & others
[2000] ZACC 1
;
2000 (2) SA 674
(CC), para 45.
[11]
Section
8(2)(b).
[12]
Section
8(3).
[13]
Section
26(2)
and (3).
[14]
Tantoush
v Refugee Appeal Board & others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T), para 90.
[15]
Khan and
Schreier (eds)
Refugee
Law in South Africa
at 40.
[16]
Dumani v
Nair & others
2013 (2) SA 274 (SCA).
[17]
Para 32.
[18]
Para 32.