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[2024] ZAECMKHC 24
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Megabo v National Director of Public Prosecutions and Another (2988/2021) [2024] ZAECMKHC 24 (13 February 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
NOT REPORTABLE
Case no: 2988/2021
In
the matter between:
LAFAMO
MATEWOS MEGABO
Applicant
and
THE
NATIONAL DIRECTOR OF PUBLIC
First
Respondent
PROSECUTIONS
ACTING
DEPUTY DIRECTOR OF PUBLIC
Second
Respondent
PROSECUTIONS
JUDGMENT
Govindjee J
Issue and background
[1]
The
issue for determination is the application of
s 21(4)
of the
Refugees
Act, 1998
[1]
(‘the
Refugees Act&rsquo
;), and the institution or continuation of criminal
proceedings pending judicial review of a decision to refuse asylum.
[2]
The applicant, an Ethiopian national, fled
to South Africa in 2013. He lodged an application for asylum in the
manner prescribed
by
s 21
of the
Refugees Act and
was issued with an
‘asylum seeker temporary permit’ or visa. The applicant’s
application for asylum was adjudicated
by a Refugee Status
Determination officer. The Refugee Appeal Board subsequently upheld
the decision of that officer to reject
the application, prompting an
application for judicial review.
[3]
The
applicant failed to renew his permit thereafter due to financial
difficulties. During August 2019 he was found by an immigration
officer not to be in possession of a valid permit. He was arrested
and detained and a criminal prosecution was instituted. An
application to challenge the lawfulness of the arrest and detention
was dismissed by Roberson J due to an absence of
bona
fides
.
[2]
The applicant was subsequently released on bail.
[4]
The applicant has made various attempts to
have the criminal proceedings withdrawn or stopped since October
2020. Both the Senior
Public Prosecutor (on 25 February 2021) and the
Acting Deputy Director of Public Prosecutions, Makhanda, (on 14 April
2021) rejected
those submissions. On 27 August 2021, the first
respondent (‘the NDPP’) made a decision to continue
prosecution. It
is that conduct, or those decisions, on the part of
the respondents that forms the basis of the application, the
applicant alleging
irrationality and arbitrariness, alternatively
unreasonableness as the review grounds.
The applicant’s
case
[5]
In particular, reliance is placed on
s
21(4)
(a)
of the
Refugees Act:
‘
(4)
Notwithstanding any other law to the contrary, no proceedings may be
instituted or continued against any person in respect of
his or her
unlawful entry into or presence within the Republic if –
(a)
Such person has applied for asylum in
terms of subsection (1), until a decision has been made on the
application and, where applicable,
such application has been reviewed
in terms of
section 24A
or where the applicant exercised his or her
right to appeal in terms of
section 24B
…’
[6]
The parties were agreed that the
pre-amended version of this section, which operated at the time of
the applicant’s arrest
and refers to ‘rights of appeal
and review in terms of chapter 4’, does not materially alter
the meaning of the section,
that chapter in essence having been
replaced by
sections 24A
and
24B
.
[7]
The applicant also places reliance on
regulation 12(3)
of the Regulations to the
Refugees Act:
‘
An
asylum seeker visa may be issued to a failed asylum seeker upon
service of a Notice of Motion indicating an application for judicial
review: Provided that such visa may be issued for a period not
exceeding 30 days at a time.’
[8]
In
essence, the applicant’s case is that
s 21(4)
(a)
of the
Refugees Act, also
in its pre-amended form, barred the
institution of any criminal proceedings for the contravention of
s
49(1)
(a)
of the
Immigration Act, 2002
[3]
against the applicant. The claim is that this also bars the
continuation of such criminal proceedings against him whilst there
is
a pending review application against the decision of the Refugee
Appeal Board for rejecting his asylum application.
[9]
Reliance
is placed on
Saidi
and Others v Minister of Home Affairs and Others
[4]
(‘
Saidi
’).
In that matter, the applicants were asylum seekers seeking refugee
status in South Africa. They each received an asylum
seeker temporary
permit entitling them to lawfully reside in the country for the
duration of the application process. The temporary
permits were
extended by the Refugee Reception Officer (‘RRO’) on
application on a few occasions while their asylum
seekers’
applications were finalised. Those applications were all rejected in
terms of
s 24(3)
of the
Refugees Act and
subsequent internal reviews
or internal appeals, lodged in terms of
ss 25
and
26
of the
Refugees
Act, were
unsuccessful. The applicants instituted proceedings for
judicial review under PAJA, challenging the rejection of their
applications.
[10]
A previous practice, in terms of which the
temporary permit would automatically be extended pending a PAJA
review, had since been
jettisoned, and the acting manager of the
refugee facility concerned had refused to extend any of the
applicants’ permits,
taking the view that this required a court
order. This precipitated an urgent application to the High Court, and
a subsequent appeal
to the Constitutional Court.
[11]
The
Constitutional Court expressed itself on the proper interpretation of
s 22(1)
of the
Refugees Act:
[5
]
‘
The
Refugee Reception Officer must, pending the outcome of an application
in terms of
s 21(1)
issue to the applicant an asylum seeker permit in
the prescribed form allowing the applicant to sojourn in the Republic
temporarily,
subject to any conditions, determined by the Standing
Committee, which are not in conflict with the Constitution or
international
law and are endorsed by the Refugee Reception Officer
on the permit.’
[12]
Section
22(3) provides that a RRO ‘may’ from time to time extend
the period for which a permit has been issued in terms
of s 22(1).
Reading the two subsections together, the Constitutional Court
confirmed the parties’ agreement that that the
word ‘may’
in s 22(3) did not grant the RRO any discretion over the issuing of
permits. In other words, the RRO had
the power to extend permits and
an obligation to exercise this power to extend the permit pending the
outcome of an application
for refugee status.
[6]
This interpretation was held to better afford an asylum seeker
constitutional protection whilst awaiting the outcome of their
application.
[13]
But
what was the pending ‘outcome’ that ‘must’
result in the asylum seeker permit being issued to enable
temporary
sojourn in the Republic? Was this a reference only to an outcome in
terms of the process provided for in the
Refugees Act, including
internal reviews and internal appeals? Or did ‘outcome’
also include the final outcome of judicial review?
[7]
[14]
The
Constitutional Court favoured the interpretation considered to accord
with the purposes of the
Refugees Act, including
giving effect to
relevant international law, and more consonant with the
constitutional rights of asylum seekers.
[8]
The respondents approach in that matter, including the suggestion
that an urgent interdict was possible adequate redress, was held
to
run counter to the principle of
non-refoulement
and the provisions of
s 2
of the
Refugees Act:
[9
]
‘
The
respondents’ interpretation exposes an asylum seeker whose
application has been administratively turned down, but who
is
desirous of seeking, or has launched, a judicial review, to all the
risks set out in the preceding quote. That, when a judicial
review
may eventually establish that the asylum seeker was, in fact,
entitled to be recognised as a refugee. This is absurd, especially
in
the light of another point made by Judge Pinto de Albuquerque that
‘(a) person does not become a refugee because of recognition,
but is recognised because he or she is a refugee”.’
(Footnote omitted).
[15]
A
textual approach would favour the respondents but was held to be
untenable.
[10]
The
Constitutional Court arrived at the following conclusion:
[11]
‘
[42]
What I have held above relative to the existence of the power to
renew pending judicial review does
not leave much room for the
exercise of a discretion before renewal. In particular, the
imperatives of the principle of
non-refoulement
dictate that, until judicial review proceedings have been finalised,
there must be a permit in place. Denying an RRO a discretion
which
she or he does not have before finalisation of the internal
application process does not place the state in a disadvantageous
position. To the extent that, for whatever legally acceptable reason,
an asylum seeker should not have a permit, there may be a
withdrawal
by the Minister in terms of
s 22(6)
of the
Refugees Act.
[43
]
… here are additional reasons why the RRO has to extend
automatically … in the case
of the Minister,
s 22(6)
clearly
specifies the circumstances under which the Minister may effect
cancellation. The RRO, on the other hand, is given carte
blanche …
why would the Minister’s discretion be circumscribed, and the
RRO’s not? If anything, I would have
expected the situation to
be the reverse. To me, this is a pointer that – pending
finalisation of judicial review –
the RRO must extend a permit
automatically.’
[16]
The
Constitutional Court accordingly ordered that a RRO had the power to
extend a
s 22(1)
permit pending finalisation of proceedings for
judicial review of a decision to refuse an application for asylum.
Pending finalisation
of this review, a RRO was obliged to issue or
extend the permit of the asylum seeker concerned in accordance with
the provisions
of the
Refugees Act and
Regulations made in terms of
s
38
of that Act. Notable is that the court did not in fact make a
specific order for the issuing of extensions of the applicants’
temporary permits, leaving it to the applicants to ‘again
approach the RRO and for the RRO to act in accordance with this
judgment and the declaratory orders’.
[12]
The respondents’
case
[17]
The respondents chose to oppose the relief
sought by filing a notice as contemplated in Uniform
Rule
6(5)
(d)
(iii),
raising limited points of law absent any answering affidavit. The
consequence is that the factual averments contained in
the founding
papers must be accepted and constitute the facts upon which the
application stands to be determined.
[18]
Initially,
the respondents took the point that the applicant had erred in basing
its case on the
Promotion of Administrative Justice Act, 2000
,
[13]
when the decisions in question were not ‘administrative
decisions’. That angle was correctly jettisoned during
arguments,
the application, read in its entirety, being grounded in
the constitutional principle of legality.
[19]
By time the matter was argued, the
respondents’ stance had also changed in respect of its second
point, namely that the protection
afforded by
s 21(4)
(a)
of the
Refugees Act did
not extend to unsuccessful asylum seekers who
had lodged judicial review applications. An order interdicting and
restraining the
respondents from continuing with the criminal
proceedings instituted against the applicant, pending the
finalisation of the applicant’s
pending judicial review, was
conceded. That concession was properly made and accords with my
understanding of at least part of
the appropriate interpretation to
be afforded to
s 21(4)
of the
Refugees Act, particularly
when
considering the judgment in
Saidi
.
[20]
Following this concession, the only
questions remaining, on my understanding, pertain to the formulation
of the relief to be granted,
and the question of costs.
Analysis
[21]
The
Constitutional Court has emphasised crucial aspects of the purposive
reading to be given to the
Refugees Act, including
an interpretation
in accordance with international law and the obligation of
non-refoulement
.
[14]
It has been established that once asylum seekers are in the country,
the
Refugees Act ensures
the immediate protection of their rights,
regularising their status pending the determination of their
applications and ensuring
their freedom and security in the
interim.
[15]
Saidi
specifically
highlights the significance of ‘immunity from prosecution’
as part of the appropriate interpretation of
the Refugees Act:
[16]
‘
To
illustrate a little more on the absurdity, an asylum seeker would be
immune from prosecution while pursuing an internal appeal
or review.
This immunity would end as soon as this internal process is
finalised. She or he would not have immunity pending a PAJA
review.
However, upon completion of the PAJA review, with the court deciding
that the applicant ought to have been granted asylum,
the immunity
would kick in again. An unfortunate, ominous game of “ping
pong”.’
[22]
Saidi
establishes
that the principle of
non-refoulement
has an overarching effect that ‘at the very least’
endures until judicial review proceedings have been finalised.
[17]
This follows the core principle of refugee law that asylum seekers
must be treated as presumptive refugees until the merits of
their
claim have been finally determined through a proper process.
[18]
That principle was linked to the ‘continued entitlement to a
temporary permit’ and must extend to the prohibition of
institution or continuation of criminal proceedings, ‘notwithstanding
any law to the contrary’, in respect of a person’s
unlawful entry into or presence within the country.
[19]
As the Constitutional Court has explained, this interpretation
accords with s 39(2) of the Constitution and constitutes an
interpretation
that better protects the rights of persons in the
position of the applicant, including the rights to human dignity,
freedom and
security of the person, access to courts and just
administrative action.
[20]
For
an asylum seeker, a life of dignity includes protection from a
possible violation of their right to freedom and security of
the
person, and ‘communing in ordinary human intercourse without
undue state interference’.
[21]
I am also mindful of the various underpinning principles of the 1951
United Nations Convention Relating to the Status of Refugees
(1951
Geneva Convention), including non-pensalisation.
[22]
[23]
The
judgment of Schippers AJ in
Scalabrini
Centre of Cape Town v The Minister of Home Affairs and Others
is also relevant in determining the appropriate relief to be
granted.
[23]
In that matter,
deemed abandonment of asylum applications under impugned sections of
the
Refugees Act was
held to cut across various fundamental rights,
thereby exposing asylum seekers to arrest, detention and deportation
as if they
were ‘illegal foreigners’, merely because a
visa had not been renewed.
[24]
In
the present proceedings, the applicant duly lodged an application for
asylum in the manner prescribed and was issued with ‘an
asylum
seeker temporary permit’, which is now a ‘visa’. He
followed the internal appeal process when his application
for asylum
was turned down, and launched an application for judicial review
during 2016. That application remains pending. The
applicant
encountered financial difficulties and, for that reason, failed to
renew his permit in person in Durban, which was seemingly
the only
option available at the time. This resulted in his arrest, during
August 2019, detention and the institution of criminal
proceedings.
[24]
[25]
For the sake of completeness, it may be
noted that Ms
Crouse
,
applicant’s counsel, handed in a copy of an ‘asylum
seeker temporary visa’ by consent during the course of her
argument. That document reflects that the applicant now enjoys
temporary permission to remain in the country ‘for the purpose
of applying for asylum in terms of the
Refugees Act…&rsquo
;.
Reference is made to the pending judicial review. This visa was
seemingly issued on 7 July 2023 for a five-month period. Reference
is
also made on the document to ‘7’ extensions. I was
informed from the bar that an online extension of this visa was
now
possible, had been sought and was pending.
[26]
Although
decisions to prosecute are subject to judicial review, it has been
established that this does not extend to a review on
the wider basis
of PAJA, instead being restricted to grounds such as legality and
rationality, the meaning of which continues to
evolve.
[25]
Legality review is an incident of the rule of law and acts as a
safety net, affording the court a measure of control over action
that
involves the exercise of public power but does not qualify for PAJA
review.
[26]
To be rational, a
decision must be based on accurate findings of fact and a correct
application of the law. On the appropriate
interpretation of
s
21(4)
(a)
of the
Refugees Act, also
in its pre-amended form, in the light of
Saidi
,
no proceedings could be instituted or continued in respect of the
applicant’s presence within the country given the pending
review. Being misaligned with the correct interpretation and
application of the law, such decisions are irrational and must be
set
aside.
[27]
As
the applicant has already pleaded to the charge levelled against him,
the respondents may not simply withdraw the charge.
[27]
Instead, it is the prerogative of the first respondent to stop the
prosecution in respect of a charge, which will necessarily result
in
acquittal.
[28]
While it
would be inappropriate for this court to direct that the prosecution
be stopped, it is within the court’s
power to review decisions
of the respondents and set them aside for reconsideration.
[29]
There is no compelling reason why the respondents should not be given
the opportunity to perform their constitutional mandates.
[30]
This appears to me to be the appropriate relief to be awarded,
coupled with the declaratory relief sought.
Costs
[28]
The applicant has been successful in this
application and is entitled to his costs. Both parties made use of
the services of two
counsel. Considering the complexity of this
matter, which involved statutory interpretation, consideration of
repealed legislation
as well as the application of various decisions
of the Constitutional Court and SCA, this was a reasonably necessary
precaution,
justifying a costs order to that effect.
Order
[29]
The following order is issued:
1.
The applicant’s non-compliance with
Uniform
Rule 53(4)
is condoned.
2.
The respondents’ decisions rejecting
the applicant’s representations to have the proceedings
instituted under case number
A1353/2019 stopped, based on the
provisions of s 21(4)
(a)
of the Refugees Act 130 of 1998 (‘the Act’), are reviewed
and set aside.
3.
It is declared that s 21(4)
(a)
of the Act barred the institution of any criminal proceedings for the
contravention of
s 49(1)
(a)
of the
Immigration Act 13 of 2002
against the applicant, and also
bars the continuation of such criminal proceedings against him while
there is a pending application
to review the decision of the Refugee
Appeal Board to reject his asylum application.
4.
The matter is remitted to the first
respondent to make a decision after due consideration of the
declarator in the previous paragraph
of this order.
5.
The respondents shall bear the costs of the
applicant, including the costs of two counsel where so employed.
A GOVINDJEE
JUDGE OF THE HIGH
COURT
Heard:
25
January 2024
Delivered:
13
February 2024
Appearances:
Counsel
for the Applicant:
Adv
L Crouse SC and Adv C Mcoseli
Club
Chambers, Gqeberha
Instructed
by:
SPJ
Attorneys
Attorneys
for the Applicant
Unit
BLKB4, First Floor
No.32
Albany Road
Central
Gqeberha
Email:
jali@spjattorneys.co.za
C/o:
Akhona
George and Associates
118
High Street
Millbarn
Centre
Makhanda
Email:
reception@aglaw.org.za
Counsel
for the Respondents:
Adv
V Notshe SC and Adv AM Da Silva SC
Chambers,
Johannesburg and Bisho
Instructed
by:
The
State Attorney
Attorneys
for the Respondents
17
Fleet Street
East
London
C/o:
Mabece
Tilana Inc.
39
New Street
Makhanda
Tel:
046 622 2432
[1]
Act
130 of 1998.
[2]
The
basis for that decision is apparent from the papers and the judgment
and is immaterial for present purposes.
[3]
Act
13 of 2002.
[4]
Saidi
and Others v Minister of Home Affairs and Others
2018
(4) SA 333
(CC) (‘
Saidi
’).
[5]
The
section, along with other parts of the
Refugees Act, has
been
amended, but the relevant amendments only took effect from 1 January
2020, after the applicant was arrested.
[6]
Saidi
above
n 4 paras 16, 18.
[7]
Saidi
above
n 4 para 19.
[8]
Saidi
above
n 4 paras 26, 27 and following.
[9]
Saidi
above
n 4 para 34.
[10]
Saidi
above
n 4 paras 37 – 39.
[11]
Saidi
above
n 4 paras 42, 43.
[12]
Saidi
above
n 4 para 46.
[13]
Act
3 of 2000.
[14]
See,
for example
Saidi
above n 4 paras 27, 31. Section 233 of the Constitution provides:
‘When interpreting any legislation, every court must
prefer
any reasonable interpretation of the legislation that is consistent
with international law over any alternative interpretation
that is
inconsistent with international law.’ Also see
Minister
of Home Affairs and Others v Somali Association of South Africa and
Another
2015 (3) SA 545
(SCA) para 2.
[15]
Scalabrini
Centre, Cape Town and Others v Minister of Home Affairs and Others
2018
(4) SA 125
(SCA) para 35. Cf
Ashebo
v Minister of Home Affairs and Others
2023 (5) SA 382
(CC).
[16]
Saidi
above
n 4 para 35.
[17]
Saidi
above
n 4 para 37. Also see
Ruta
v Minister of Home Affairs
[2018] ZACC 52
;
2019 (2) SA 329
(CC);
2019 (3) BCLR 383
(CC) para
29: all asylum seekers are protected by the principle of
non-refoulement
,
and the protection applies as long as the claim to refugee status
has not been finally rejected after a proper procedure.
[18]
Ruta
above
n 17 paras 26-27. Also see
Abore
v Minister of Home Affairs and Another
2022 (2) SA 321
(CC);
2022 (4) BCLR 387
;
[2021] ZACC 50
para 48.
[19]
S
21(4)
(a)
of the
Refugees Act, read
with
Saidi
above
n 4.
[20]
Saidi
above
n 4 paras 38, 40.
[21]
Saidi
above
n 4 para 18.
[22]
See,
for example,
Scalabrini
Centre of Cape Town and Another v The Minister of Home Affairs and
Others
[2023] ZACC 45
(‘
Scalabrini
Centre
’)
para 30.
[23]
Scalabrini
Centre
above n 22 para 40.
[24]
On
the effect of the
Refugees Act on
detention pursuant to an evinced
intention to apply for asylum, see
Abraham
v Minister of Home Affairs
and
Another
2023 (5) SA 178 (GSJ).
[25]
National
Director of Public Prosecutions and Others v Freedom Under Law
2014
(4) SA 298
(SCA) (
NDPP
v FUL
)
para 27 and following.
[26]
Ibid
para 29.
[27]
S
6
(a)
of the Criminal Procedure Act, 1977 (Act 51 of 1977) (‘the
CPA’).
[28]
S
6
(b)
of the CPA, read with s 45 of the National Prosecuting Authority
Act, 1998 (Act 32 of 1998). See
Attorney-General
v Additional Magistrate, Middledrift, and Others
1987 (4) SA 914 (Ck).
[29]
Essop
v National Director of Public Prosecutions
2020
JDR 2162 (KZP) para 1 fn 1.
[30]
See
NDPP
v FUL
above n 25 para 51.