Pinzirai and Others v Minister of Home Affairs and Another (1794/2020) [2022] ZAECPEHC 2 (18 January 2022)

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[2022] ZAECPEHC 2
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Pinzirai and Others v Minister of Home Affairs and Another (1794/2020) [2022] ZAECPEHC 2 (18 January 2022)

THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE NO. 1794/2020
In
the matter between:
CASPER
PINZIRAI
First
Applicant
TAFDZWA
TSENZERE
Second
Applicant
ROGER
MAFOTI
Third Applicant
GUIDE
TSODZO
Fourth Applicant
and
MINISTER
OF HOME AFFAIRS
First
Respondent
DIRECTOR
GENERAL: DEPARTMENT
OF
HOME AFFAIRS
Second
Respondent
JUDGMENT
RUGUNANAN,
J
[1]
The
four applicants are Zimbabwean nationals. The first, second and third
applicants have been residing in South Africa since 2017,
whilst the
fourth applicant has been in the country since 2015. Except for the
third applicant who entered the country at the Beitbridge
border post
in 2015, it is not known how or under what circumstances the others
entered the country.
[2]
The
applicants’ history and existence in South Africa is not disclosed,
but on 23 July 2020 they were employed as truck drivers
when
immigration officials of the Department of Home Affairs (“the
Department”) encountered them in Gqeberha. None of them were
in
possession of a work visa issued in terms of the Immigration Act.
[1]
The first applicant was in possession of a work visa that was not
issued by the Department. Consequent to being interviewed about
their
identity and status, the applicants were arrested under the
Immigration Act.
[2]
[3]
They
were taken into custody without warrants, following a determination
that each of them was an “
illegal
foreigner”
[3]
and was in the country in contravention of section 49(1) of the
Immigration Act. The applicants were detained for purposes of
deportation
to Zimbabwe and were respectively issued with a
notification of deportation. In the opposing affidavit it is asserted
that the applicants
elected to await their deportation and that none
of them wished to invoke the statutory review of the decisions to
deport them.
[4]
The applicants have not disputed this in reply.
[4]
Within
48 hours
[5]
of being arrested the applicants appeared in person before a
magistrate in chambers on 24 July 2020 for the purpose of deportation
to be confirmed by warrant of the court.
[6]
The magistrate conducted enquiries and made an order confirming the
detention of each of them pending deportation. The second, third
and
fourth applicants countered by informing the magistrate of their
intention to apply for asylum. The first applicant did not do
so but
it is clear on the version that he advances in the founding affidavit
to this application that he is an aspirant for seeking
asylum.
[5]
On
1 September 2020 a rule
nisi
issued out of this court.
[7]
This resulted in the applicants being released from detention. They
now seek confirmation of the rule
nisi,
effectively seeking orders interdicting the respondents from causing
them to be removed from South Africa, and permitting each of
them to
make applications for asylum. In summary, the respondents’
opposition to the relief claimed by the applicants leans on
the
assertion that: (i) none of them has made out a case for “
good
cause”
in seeking asylum; (ii) the magistrate, having made no order
permitting them to apply for asylum, effectively made a decision
which
the applicants have not challenged, nor have they challenged
the magistrate’s order confirming their detention for purposes of
deportation; and (iii) the first applicant is a prohibited person in
terms of section 29(1)(f) of the Immigration Act.
[6]
The
Refugees Act
[8]
has been amended with effect from 1 January 2020. Simultaneously on
that date, new regulations published on 27 December 2019 in
Government
Gazette 42932, Government Notice R1707 came into effect.
The new regulations repealed,
inter
alia
,
the previous regulation 2 published on 15 September 2000 in
Government Gazette 21573, Government Notice R938.
[9]
[7]
The
applicants assert that they are refugees
sur
place,
[10]
and contend that they are unable to return to Zimbabwe because they
would be subject to persecution by its government. They contend
that
various human rights violations have taken place in their country of
origin over decades and that the government of the day
is intolerant
of freedom of expression, peaceful dissent and basic human
rights.
[11]
Although
the bald versions as regards the applicants’ fears of persecution
do not instil confidence that they are
bona
fide
asylum seekers, none of the applicants has made an application for
asylum, and no decision has been made about their eligibility
for
asylum, this court cannot be dismissive of their claims on that
basis. From what follows in this judgment the process designed
by the
Refugees Act must be allowed to unfold.
THE STATUS OF THE
MAGISTRATE’S ORDER / DECISION
[8]
It
is now trite that once a foreign national indicates an intention to
apply for asylum, the regulatory framework of the Refugees
Act is
triggered.
[12]
It matters not whether the person is an “
illegal
foreigner”
under the Immigration Act and liable to deportation, the provisions
of the Refugees Act intercede and provide imperatively that,
despite
that status, the individual is safe from detention
[13]
,
and their claim to asylum must first be processed under the Refugees
Act.
[14]
The foundation for this is section 2 of the Refugees Act.
[9]
The
section states:
“
2.
General prohibition of refusal of entry, expulsion, extradition or
return to other country
in certain circumstances
Notwithstanding any provision
of this Act or any other law to the contrary, no person may be
refused entry into the Republic, expelled,
extradited or returned to
any other country or be subject to any similar measure, if as a
result of such refusal, expulsion, extradition,
return or other
measure, such person is compelled to return to or remain in a country
where-
(a)
he or she may be subjected to persecution on account of his or her
race, religion, nationality,
political opinion or membership or a
particular social group; or
(b)
his or her life, physical safety or freedom would be threatened on
account of external
aggression, occupation, foreign domination or
other events seriously disturbing pubic order in any part or the
whole of that country.”
[10]
The
section encapsulates two concepts:
(i)
it
enacts a prohibition; and
(ii)
it
affirms the purpose and intent of a principle – that of
non-refoulement
,
the safeguard that a person fleeing persecution or threats to “
his
or her life, physical safety or freedom”
should not be made to return to the country inflicting it.
[15]
[11]
The
principle overrides and prevails over the Immigration Act.
[16]
In practical terms all asylum seekers are protected by the section
and the protection applies as long as the claim to refugee status
has
not been finally rejected after a proper procedure under the Refugees
Act.
[17]
In sum, once the procedures in the Refugees Act have been followed
through and a proper determination on the merits of an application
to
seek asylum is completed, only then does the Immigration Act
apply.
[18]
[12]
This
approach to the legislation does not provide what the Constitutional
Court
per
Cameron
J in
Ruta
v Minister for Home Affairs
called, “
a
sweethearts’ charter for bogus asylum seekers or an open door for
non-refugees”
[19]
.
The comment by the learned judge emanated from his observation that
foreign nationals do not have the right to enter South Africa,
to
remain in the country or to reside anywhere therein.
[20]
The Refugees Act contains “
hard-headed
and practical”
mechanisms designed for genuine refugees and authentic asylum
seekers.
[21]
It is unnecessary to repeat the analytical aspects of the judgment
which informed the sentiments expressed by the learned judge,
save
that this court unreservedly endorses those sentiments.
[22]
[13]
Seeing
that section 2 of the Refugees Act prevails over the Immigration Act,
the respondents’ contention that the unchallenged detention
order
by the magistrate under the Immigration Act bars reliance on the
Refugees Act, is unsustainable. So too, is the contention
that the
magistrate’s decision in not ordering that the applicants be
permitted to apply for asylum should be set aside on appeal
or review
before the Refugees Act may be resorted to.
“
GOOD
CAUSE”
[14]
The
new regulations 8(3) and 8(4) provide that:
“
(3)
Any person who upon application for asylum fails at a Refugee
Reception Office to produce a valid
visa issued in terms of the
Immigration Act must prior to being permitted to apply for asylum,
show good cause for his or her illegal
entry or stay in the Republic
as contemplated in Article 31(1) of the 1951 United Nations
Convention Relating to the Status of Refugees.
(4)
A judicial officer must require any foreigner appearing before the
court, who indicates
his or her intention to apply for asylum, to
show good cause as contemplated in subregulation (3).”
[15]
Good
cause
is
common to both subregulations. It is derived from Article 31(1) of
the United Nations Convention Relating to the Status of Refugees
(“the UN Convention”), which states (underlining added):
“
The
Contracting States shall not impose penalties, on account of their
illegal entry or presence, on refugees who, coming directly
from a
territory where the life or freedom was threatened in the sense of
Article 1, enter or are present in their territory without
authorization, provided they present themselves without delay to the
authorities and show
good
cause for their illegal entry or presence
.”
[16]
In
heads of argument it was submitted for the respondents that the
good
cause
requirement allows for judicial oversight in identifying and
eliminating, at an early stage, unmeritorious claims for asylum
especially
when the cry for asylum is raised once the law catches up
with an illegal foreigner.   This contention is
insupportable.
The sole power and duty to determine whether an
applicant for asylum should be afforded refugee status under the
Refugees Act, lay
with the Refugee Status Determination Officer.
[23]
The process legislated in that Act is bureaucratic; the court has no
involvement in determining the likely outcome of an application
for
asylum, save that its role is that of an adjudicator of the legality
of that process.
[24]
[17]
An
additional argument relied on by the respondents is that the
requirement of
good
cause
seeks to discourage undue delay by foreign nationals seeking asylum
by sojourning illegally in the country for long periods of time;
and
that they are now obliged to enter the country legally at a
designated port of entry where they must declare their intention
to
apply for asylum whereafter they will be issued with an asylum
transit visa under section 23(1) of the Immigration Act.
[18]
The
immediate answer to the first leg of the argument is that delay is
not a bar to a belated application for asylum.
[25]
As for the second leg, the proper context is regulation 7.
[19]
Quoting
in relevant part, the regulation provides that:
“
Any
person who intends to apply for asylum must declare his or her
intention, while at a port of entry, before entering the Republic
and
provide his or her biometrics and other relevant data as required (a)
… (f) and must be issued with an asylum transit visa
contemplated
in section 23 of the Immigration Act.”
[20]
In
Mwale
v The Minister of Home Affairs and Another
,
the court’s disposition appears to have been that the right to
apply for asylum is now strictly limited to a port of entry as
stipulated in the above regulation.
[26]
But elsewhere in the judgment it appears that the court did
acknowledge that there may be an exception to entry
via
official ports of entry.
[27]
The Refugees Act implicitly covers asylum seekers who do not enter
through official ports of entry.
[28]
This conclusion is impelled by section 2 which underscores the
principle of
non-refoulement
.
And it must follow by the same conclusion that the Refugees Act
prevails as the governing legislation
[29]
and is not subordinated by the regulation. Respectfully, this is the
point of departure with
Mwale.
It is by no means suggested herein that the regulation loses
functionality or efficacy. It holds good - and it must be applied in
those instances where
bona
fide
persons seeking asylum enter the country at a port of entry.
[21]
Adverting
to the regulations; they do not ascribe a meaning to
good
cause
.
One has a sense that the expression must be informed by the UN
Convention. On this premise, it may be hypothesised that what
regulation
8(4) requires is that a foreigner who appears before court
and indicates their intention to apply for asylum need only show
“
good
cause
for
their illegal entry or presence”
without being required to narrate their claim to asylum.
[22]
The
applicants dispute that they were called upon to show
good
cause
as required by the regulations when they appeared before the
magistrate. The respondents’ answering affidavit indicates that the
magistrate questioned them to establish
good
cause
and that he made no order referring them to apply for asylum. By not
making such an order the magistrate made a decision which effectively
ruled against such a referral for lack of
good
cause
,
which decision, the respondents maintain, must stand since the
applicants have not challenged it on appeal or review.
[30]
[23]
This
argument has been dealt with elsewhere and requires no further
comment. However, two points are made: (i) the Refugees Act
intercedes
and prevails over the Immigration Act as soon as a person
announces their intention to seek asylum (
Ruta
);
and (ii) the regulation does not cloak a judicial officer with the
authority to refuse such a person the opportunity to apply for
asylum
(to do so would be synonymous with
refoulement
);
the regulation plainly requires the judicial officer to enquire
whether
good
cause
exists for the person’s entry and stay in this country.
THE FIRST APPLICANT’S
EXCLUSION FROM THE ASYLUM SEEKING PROCESS
[24]
Section
29(1)(f) of the Immigration Act declares that a foreigner found in
possession of a fraudulent visa, passport, permanent residence
permit
or identification document, is a prohibited person and does not
qualify for a port of entry visa, admission into the country,
a visa
or a permanent residence permit.
[25]
In
the course of the interview regarding his identity and status
[31]
,
it was established that the first applicant was in possession of a
work visa, a document not issued by the Department. In the answering
affidavit it is asserted that the document is fraudulent. For that
reason the respondents contend that the first applicant is excluded
from the asylum seeking process and liable to deportation under the
order confirmed by the magistrate.
[26]
A
supporting affidavit in terms of section 212(3) of the Criminal
Procedure Act
[32]
is attached to the answering affidavit. Section 212(3) relates to the
question as to whether anything has been registered under any
law or
whether any fact or transaction has been recorded under a particular
law. The section essentially provides that any affidavit
by “
the
person upon whom the law in question confers the power or imposes the
duty to register such matter or to record such fact or transaction”
shall be admissible (on its mere production) and shall be
prima
facie
proof of its contents.
[33]
[27]
The
deponent states that she is “
a
Deputy Director in the Department of Home Affairs, employed in the
Directorate: Permit Functional Services and Visa Management at
the
Head Office of the Department”
.
She indicates that the document purporting to be a work visa is
fraudulent since no record of its issue exists. There is no
indication
that she is the person falling within the description of
the statutory jurisdictional qualification.
[28]
It
follows that the conclusion to the effect that the first applicant’s
work visa is a fraudulent document is left unsubstantiated
where no
primary facts have been proffered to establish the relevant
jurisdictional requirement. On its own, the conclusion is hearsay.
Thus, it cannot be unequivocally determined if the first applicant is
a prohibited person.
[29]
If
this is correct, it seems rational that the first applicant’s
simple claim to asylum appears to be sufficient to grant him access
to the application process legislated in the Refugees Act.
[34]
This deduction is informed by recognising the principle of
non-refoulement
and the first applicant’s assertion that he is a refugee
sur place
.
Consistent with
Ruta
(and the line of cases from the Supreme Court of Appeal referred to
therein), it is obvious that the internal processes (and remedies)
of
the Refugees Act should first be exhausted before recourse may be had
to the Immigration Act. The same applies for the other applicants.
CONCLUSION
[30]
The
grounds of opposition relied on by the respondents do not justify
denying the applicants the relief which they seek. The respondents
did not deal with the
non-refoulement
principle which lies at the core of this application. Consequently
the applicants have made out a proper case for the confirmation
of
the rule
nisi
and the following order is made:
30.1
The rule
nisi
issued on 1 September 2020 is confirmed.
30.2
The first and second respondents are ordered, jointly and severally,
to
pay the applicants’ costs.
S. RUGUNANAN
JUDGE OF THE HIGH COURT
Appearances:
For the Applicants:
A Beyleveld SC
Instructed by Rwexana Attorneys
Applicants’ Attorneys
North End
Gqeberha
(Ref: LR/P00010/20)
Tel: 041-484 2137
Email:
rwexanaattorneys@gmail.com
For the Respondents:
N. Mullins SC and A. Barnett
Instructed by The State Attorney
Gqeberha
(Ref: 1081/2020/Z)
Tel: 041-585 7921
Email:
MicBotha@justice.gov.za
Date heard: 19 August 2021
Date Delivered: 18 January 2022
This
judgment was handed down electronically by circulation to the
abovementioned legal representatives by email. The date and time
for
hand-down is deemed to be 09h30 on 18 January 2022.
[1]
Section 19 of Act 13 of 2002
[2]
13 of 2002
[3]
Section 1 of the Immigration Act defines a “foreigner” as an
“individual who is not a citizen”; and an “illegal foreigner”
as “a foreigner who is in the Republic in contravention of this
Act”.
[4]
The review procedures are provided for in section 8(1) and 8(4) of
the Immigration Act
[5]
This accords with the order of the Constitutional Court in
Lawyers
for Human Rights v Minister of Home Affairs and Others
2017 (5)
SA 480 (CC)
[6]
Section 34(1)(b) of the Immigration Act
[7]
The order essentially provided that the Second Respondent show cause
why the following order should not be made final (all
sic
):
“3.1      It is declared that the
continued detention of the Applicants is unlawful;
3.2       The Second Respondent or any
official(s) duly authorised by the Second Respondent be and
hereby
directed to immediately release the Applicants from unlawful
detention;
3.3       The Second Respondent or any
officials duly authorised or acting under the instruction
of the
Second Respondent, be and hereby interdicted from removing the
Applicants or causing the Applicants’ removal from the
Republic of
South Africa pending final determination of their respective asylum
claims including exhaustion of the appeal and review
remedies;
3.4       Directing the Second
Respondent to accept the respective asylum applications of the
Applicant's
as soon as reasonable practical to do so, and issue the
Applicants with asylum visas in terms of
section 22
of the
Refugees
Amendment Act 33 of 2008
."
[8]
130 of 1998
[9]
Regulation 2
, as it previously existed read:
“
2(1)
An application for asylum in terms of section 21
of the Act:
(a)        must be lodged by
the applicant in person at a designated Refugee Reception Office
without delay;
(b)        must be in the form and
contain substantially the information prescribed in Annexure 1 to
these Regulations; and
(c)
must be completed in duplicate.
(2)       Any person who entered the
Republic and is encountered in violation of the Aliens Control Act,
who has not submitted an application pursuant to subregulation 2(1),
but indicates an intention to apply for asylum shall be issued
with
an appropriate permit valid for 14 days within which they must
approach a Refugee Reception Office to complete an asylum

application.”
[10]
Refugees
sur place
are an internationally recognised category
of refugees who enter the country of refuge on one basis and
thereafter supervening
events in their country of origin
involuntarily render them refugees.
Ruta v Minister of Home
Affairs
2019 (2) SA 329
(CC) at paragraph [51]
[11]
Founding affidavit, pages 1-11
[12]
Bula and Others v Minister of Home Affairs and Others
2012
(4) SA 560
(SCA) at paragraph [72]
[13]
Nwankwo v Minister of Home Affairs and Others
[2020] ZAGPJHC
377 at paragraph [6]; wherein the provisions of section 21(4) of the
Refugees Act have been considered;
Ruta v Minister of Home
Affairs
2019 (2) SA 329
(CC) at paragraph [16]
[14]
Ruta,
paragraph [43],
Nwankwo,
t paragraph [10]
[15]
Ruta v Minister of Home Affairs supra
at paragraph [24], and
see paragraphs [25]-[27] and [30] on how on becoming a
constitutional democracy South Africa became a state
party to
various international instruments and protocols which embraced the
rights of asylum seekers and the principle of
non-refoulement
.
[16]
Ruta
, paragraphs [32]-[33]
[17]
Ruta
, paragraph [29]
[18]
Ruta
, paragraph [54]
Nwankwo,
paragraph [11]
[19]
Footnote 11
supra
at paragraph [40]
[20]
Ruta
, paragraph [37]
[21]
Ruta
, paragraphs [39]-[40]
[22]
Ruta
, paragraphs [30]-[47]
[23]
Ruta
, paragraph [4]. See also
Gorhan v Minister of Home
Affairs
[2016] ZAECPEHC 70 at paragraphs [11]-[17] and
Mapingure
v The Chairperson Standing Committee for Refugee Affairs
[2021]
ZAECPEHC 18 for the procedure in the determination of the status of
persons seeking asylum.
[24]
Nwankwo,
paragraph [15]
[25]
Nwankwo,
paragraph [12], and see
Ruta
, at paragraphs
[16]-[19] and the list of cases from the Supreme Court of Appeal
cited therein
[26]
Unreported Case No. 1982/2020 ECLDPE, 22 September 2020, at
paragraph [30]
[27]
See paragraph [28] of the judgment. The exception is conveyed by the
court’s reference to section 21(1)(B) of the Refugees Act;
it
reads: “
An applicant who may not be in possession of an asylum
transit visa as contemplated in section 23 of the Immigration Act,
must be
interviewed by an immigration officer to ascertain whether
valid reasons exist as to why the applicant is not in possession of

such visa.”
[28]
This is conveyed by a reading of section 21(1)(B)
supra
and
section 4(1)(h) which by necessary implication recognises alternate
entry: “
(1) An asylum seeker does not qualify for refugee
status for the purposes of this Act if a Refugee Status
Determination Officer
has reason to believe that he or she
(a)...(g);
(h)
having entered the Republic, other than through a port of entry
designated as such by the Minister in terms of section 9A of
the
Immigration Act, fails to satisfy a Refugee Status Determination
Officer that there are compelling reasons for such entry”
[29]
Ruta
, paragraph [53]
[30]
Answering affidavit, page 82, paragraphs [43]-[44]
[31]
Section 41 of the Immigration Act
[32]
Act 51 of 1977. The supporting affidavit is attached to the
answering affidavit as Annexure “C”
[33]
Schwikkard Van Der Merwe,
Principles of Evidence
, second
edition at page 273
[34]
Nkwankwo
, paragraph [12] and [32]