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[2011] ZASCA 2
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Abdi and Another v Minister of Home Affairs and Others (734/2010) [2011] ZASCA 2; 2011 (3) SA 37 (SCA); [2011] 3 All SA 117 (SCA) (15 February 2011)
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 734/2010
In the matter between:
MAHAMAD ARWAH ABDI
................................................................
First
Appellant
YUSUF ALI DHIBLAWE
...............................................................
Second
Appellant
and
THE MINISTER OF HOME AFFAIRS
...........................................
First
Respondent
THE DIRECTOR GENERAL, DEPARTMENT OF
HOME AFFAIRS
......................................................................
Second
Respondent
KENYA AIRWAYS
.......................................................................
Third
Respondent
ANALYTICAL RISK MANAGEMENT INTERNATIONAL
.........
Fourth Respondent
AIRPORTS COMPANY SOUTH AFRICA
.....................................
Fifth
Respondent
Neutral citation:
Abdi v Minister of Home Affairs
(734/10) [2011] ZASCA 2 (15 February 2011)
Coram:
MPATI P, CACHALIA, LEACH and TSHIQI JJA
and BERTELSMANN AJA
Heard:
24 NOVEMBER 2010
Delivered: 15 FEBRUARY 2011
Summary:
Appellants granted refugee and asylum
seeker status in South Africa prior to departing for Namibia without
informing authorities
– deported from that country to their
country of origin via South African airport – held in
Inadmissible Facility and
refused entry by first and second
respondents – entitled to be re-admitted to South Africa with
retention of their former
status – failure to allow appellants
entry criticised.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from: North Gauteng High Court, Pretoria
(Goodey AJ sitting as court of first instance).
The appeal succeeds with costs, including the costs of
two counsel.
The order of the court a quo is set aside and for it the
following is substituted:
‘
1. The
Fourth and Fifth Respondents are directed forthwith to release the
Applicants from detention in the Inadmissible Facility
at OR Tambo
International Airport.
2. It is declared that the First
Applicant is entitled to remain in South Africa until a decision has
been made on his application
for asylum and, where applicable, the
Applicant has had an opportunity to exhaust his rights of review or
appeal in terms of Chapter
2 of the Refugees Act 130 of 1998 and the
Promotion of Administrative Justice Act 3 of 2000
.
3. It is declared that the
Second Applicant is entitled to remain in South Africa in accordance
with his status as a refugee.
4. The First and Second
Respondents are directed forthwith to issue each of the First and
Second Applicants with an Asylum Transit
Permit in terms of
section
23
of the
Immigration Act 13 of 2002
. Such permits shall remain valid
for 14 days, during which period the First and Second Applicant will
reside at My Lillipot Shelter,
4
th
Street, Rosettenville, or such
other address as is provided to the First and Second Respondents.
5. The First and Second
Respondents are ordered to pay the costs of the application, one
paying the other to be absolved, including
the costs of two counsel
where applicable.’
JUDGMENT
________________________________________________________________
BERTELSMANN AJA (MPATI P, CACHALIA, LEACH and TSHIQI JJA
concurring)
[1] At the end of the hearing of this appeal, by
agreement between the parties concluded at the suggestion of the
President, this
court made the following order:
‘
(a) By
agreement it is ordered:
1. The Fourth and Fifth
Respondents are directed forthwith to release the Applicants from
detention in the Inadmissible Facility
at OR Tambo International
Airport.
2. It is declared that the First
Applicant is entitled to remain in South Africa until a decision has
been made on his application
for asylum and, where applicable, the
Applicant has had an opportunity to exhaust his rights of review or
appeal in terms of Chapter
2 of the
Refugees Act 130 of 1998
and the
Promotion of Administrative Justice Act 3 of 2000
.
3. It is declared that the
Second Applicant is entitled to remain in South Africa in accordance
with his status as a refugee.
4. The First
and Second Respondents are directed forthwith to issue each of the
First and Second Applicants with an Asylum Transit
Permit in terms of
section 23
of the
Immigration Act 13 of 2002
. Such permits shall
remain valid for 14 days, during which period the First and Second
Applicant will reside at My Lillipot Shelter,
4
th
Street
Rosettenville, or such other address as is provided to the First and
Second Respondents.
(b) The issue of costs stands
over for later determination.’
[2] The court indicated that the reasons motivating the
granting of the order and determining the costs would be given at a
later
stage. This judgment not only contains such reasons and deals
with the costs but also serves to highlight significant shortcomings
in the way in which the first and second respondents dealt with the
matter.
[3] The order was issued immediately
to address the self-evident urgency of resolving the appellants’
plight. There is precedent
for the granting of an order prior to
giving judgment at a later stage when the outcome of the appeal is
not in doubt and the litigants’
interests demand an immediate
resolution:
AD &
another v DW & others (Centre for Child Law as amicus curiae
;
Department for
Social Development as Intervening Party)
[2007] ZACC 27
;
2008
(3) SA 183
(CC);
Occupiers
Erf 101, 102, 104 and 112 Shorts Retreat v Daisy Dear (Pty) Ltd &
others
[2009] 2 All
SA 410
(SCA).
[4] Although the deponent on behalf of the first and
second respondents chose to deny this notorious fact, it was never
suggested
in argument that Somalia is anything other than a failed or
dysfunctional state that is unable to maintain public order or
protect
the lives of its citizens. It is not disputed that the
appellants hail from Somalia or that their lives would be in danger
if they
were to be forced to return to that country. The appellants
had been held in the Inadmissible Facility at the Oliver Tambo
International
Airport (‘the airport’) since 7 September
2010. They were entitled to enter and remain in South Africa for as
long
as the law permitted - hence the immediate order.
[5] The present proceedings were
initiated by Pamela Msizi, (‘Msizi’), a protection
officer at the United Nations High
Commissioner for Refugees
(‘UNHCR’) in South Africa. Her
locus
standi
to launch
the application by the exercise of the competence granted by s 38(b)
of the Constitution was not challenged. She approached
the Gauteng
North High Court (Pretoria) on an urgent basis to interdict all
respondents but the third from forcing the appellants
to board a
flight to Somalia and also to obtain a mandamus against them to
facilitate the appellants’ re-admission to the
Republic. The
second appellant was a recognised refugee and the first a registered
asylum seeker. A further mandamus was sought
to allow the ‘second’
appellant to continue his application for asylum under s 22 of the
Refugee Act 130 of 1998 (‘the
Act’) (the reference to the
second appellant was a clear error as the first appellant is the
asylum seeker – but this
mistake caused no prejudice to the
respondents). When the application was launched, the appellants were
being held at the Inadmissible
Facility at the airport. They had made
telephonic contact with Msizi after having been deported from Namibia
as illegal aliens
and informed her that they were on the verge of
being placed on an Air Kenya flight en route to Mogadishu via
Nairobi.
[6] The appellants also told Msizi that they had earlier
fled Somalia for South Africa but, because of their fears of
xenophobia
here, had left for Namibia after they had been told that
the officers of the UNHCR in that country might be able to arrange
for
their admission to a country such as Canada where they might also
further their education. As a result of a misunderstanding it
was
stated in the founding affidavit that the second appellant had left
South Africa for Namibia in April 2009 and not 2010, which
is the
correct date. This mistake was corrected in his replying affidavit. I
deal with this aspect more fully later. Be that as
it may, they left
South Africa for Namibia without informing the authorities and were
then arrested and deported as set out above.
[7] In the process of being deported from Namibia to
Somalia, the appellants were flown by Air Namibia to Johannesburg
where they
were to be placed on a Kenya Airways flight to Nairobi,
Kenya. From this country they were ultimately to be transported to
Mogadishu.
However, they wanted to remain in South Africa and sought
Msizi’s assistance to this end. From memory the appellants
provided
Msizi with the numbers of the files in which their
applications for asylum and refugee status had been processed by the
Department
of Home Affairs (‘the Department’).
[8] Msizi attempted to solve the appellants’
difficulties by engaging with the Department, represented in the
later application
to the court below and in this appeal by its
Minister and its Director-General as first and second respondent
respectively. The
official tasked to deal with the appellants’
case refused to permit their entry into the country on the ground
that the appellants
were Namibian deportees and that South African
authorities had no jurisdiction to interfere with another state’s
deportation
order.
[9] The urgent application referred to above followed.
It was postponed to allow the first and second respondents to prepare
and
file opposing affidavits. An interim order was made to ensure
that appellants were not removed to another country against their
will, pending the finalisation of the application.
[10] The third respondent, Kenya Airways, was joined as
the carrier that was to fly the appellants out of South Africa. The
fourth
respondent, Analytical Risk Management International: Aviation
Security Division, is a private security business with its
headquarters
at 4 Karen Street, Bryanston, Johannesburg. It runs the
international Inadmissible Facility under the auspices of the fifth
respondent,
the Airports Company of South Africa. Established in
terms of the
Airports Company Act 44 of 1993
, the fifth respondent is
responsible for the operation and control of the airport, including
the Inadmissible Facility which is
located in the airport building.
The third, fourth and fifth respondents did not oppose the
application.
[11] As stated above, the appellants sought an interdict
to prevent their deportation from South Africa and also a mandamus to
facilitate
their entry into the country, the second appellant as a
recognized refugee and the first appellant as an asylum seeker. A
further
order was sought against the first and second respondents to
re-issue the second appellant with a permit in terms of the Act.
(This
order should have been sought on behalf of the first appellant
as set out above.)
[12] As proof of the second appellant’s status,
Msizi attached a copy of the second appellant’s Recognised
Refugee Status
Permit to her founding
affidavit. This permit was issued in
2010 in terms of s 27(a) of the Act.
1
It is valid until January 2012.
[13] In a supplementary affidavit prepared after the
interim order had been granted Msizi supplied the file number of the
file in
which the first appellant had lodged his asylum application.
The appellants also filed supplementary affidavits to explain why
they had entered South Africa. The second appellant left his home
country and came to South Africa in 2003 because of the threat
of
violence that endangered his life. The first appellant had been
persecuted in Somalia. Upon entry into South Africa in 2009
he was
issued with a temporary asylum seeker’s permit. He quoted the
number of his file from memory. His memory failed him.
The file
number initially supplied was incorrect, but after discovering the
error, he gave the correct reference in the replying
affidavit.
[14] A Director: Port of Entry in charge of immigration
duties at the airport, Mr Ronny Marule, deposed to the first and
second
respondents’ (‘the respondents’) answering
affidavit. He denied that the respondents had any record relating to
the appellants and disputed their status as refugees or asylum
seekers.
[15] He raised a number of further defences that may be
summarized as follows:
(a) The respondents were not responsible for the
appellants as they were being deported by another country. They were
in fact the
responsibility of Air Namibia, on whose flight they had
been brought to South Africa. Reliance was placed on the Chicago
Convention
on International Aviation, which was said to impose that
duty upon the carrier.
(b) While being detained at the Inadmissible Facility
they were not in law in South Africa and the South African
authorities and
courts had no jurisdiction over them. They were held
pending their return to Namibia and were thus not being deported.
Their status
in South Africa was irrelevant to their fate.
(c) South African courts had no jurisdiction to consider
or interfere with the execution of a deportation order issued by
another
country.
(d) As deportees of another country, the appellants had
no right to invoke the protection of the Act. (A further suggestion
that
the appellants were being deported by order of the Namibian High
Court, contained in Marule’s affidavit, has no foundation
in
fact. No attempt was made to explain how that allegation came to be
made. Marule opined, incorrectly, that such an order must
be enforced
by South African courts as a matter of course.)
(e) In argument a further point was raised that was not
referred to in the affidavit filed on respondents’ behalf,
namely
that the appellants had waived any claim to recognition of
their respective status – if such were held to have been
established
– by reason of the fact that they had left the
country without the Minister’s or any other authority’s
consent.
[16] In their replying affidavits the appellants joined
issue with the respondents’ denial of being in possession of
their
files, evidencing their status. Msizi obtained proof from the
Refugee Reception Offices in Durban and Port Elizabeth that a file
existed in the Department for each appellant and confirmed the
correct file numbers. The confusion that had arisen relating to
the
date upon which the appellants left the country was explained.
[17] The court below held that the appellants had not
established their respective status as a recognized refugee and an
asylum
seeker. It concluded that an irresolvable dispute of fact had
arisen in the affidavits in respect of this issue. It further held
that a South African court could not interfere with a Namibian
deportation order and that it could not be argued that the appellants
were in law in South Africa while being held in the Inadmissible
Facility. The application was dismissed, but the appellants were
allowed to remain in the Facility pending this appeal, leave having
been granted by the court below.
[18] In argument before this court, the respondents
relied upon substantially the same defences that had been advanced in
the court
below. I propose to deal with the respondents’
grounds of opposition before commenting upon their approach toward
this matter.
[19] The appellants’ status as an asylum seeker
and a recognized refugee respectively was established by the
identification
of their files and the second appellant’s
permit. The respondents’ allegation that the department had no
record of
the appellants was refuted in the replying affidavits. The
respondents did not file an additional affidavit once the appellants’
correct file numbers were placed on record, which they surely would
have done if the allegations in the replying affidavits were
incorrect. Indeed, the respondents’ officials were eventually
able to trace the appellants’ files. Counsel for the
respondents informed the court from the Bar that they were in her
possession at that stage, although she was instructed that they
contained no trace of the appellants’ permits or applications.
But that does not mean that the applications had not been
lodged nor
permits issued as the appellants have alleged, and the court below
erred in holding that the appellants had not succeeded
in
establishing their status.
[20] The argument that individuals
who are held in an inadmissible facility at a port of entry into the
Republic are beyond the
courts’ jurisdiction flies in the face
of the decision of
Lawyers
for Human Rights & another v Minister of Home Affairs &
another
[2004] ZACC 12
;
2004 (4) SA
125
(CC). Yacoob J said the following at par 25 and 26:
‘
The
government contended that our Bill of Rights does not accord
protection to foreign nationals at ports of entry who have not
yet
been allowed formally to enter the country. It was accordingly
suggested that the provisions in issue cannot be found to be
inconsistent with the Constitution. The government relied on s 7(1)
of the Constitution which enshrines the rights of all the people
“in
our country”. We were urged to find that people at ports of
entry who have not yet been allowed formally to enter
South Africa,
are not “in our country” within the meaning of the
subsection.
It is neither
necessary nor desirable to answer the general question as to whether
the people to whom s 34 of the Act applies are
beneficiaries of all
the rights in the Constitution. It is apparent from this judgment
that the rights contained in s 12 and s
35(2) of the Constitution are
implicated. The only relevant question in this case therefore is
whether these rights are applicable
to foreign nationals who are
physically in our country but who have not been granted permission to
enter and have therefore not
entered the country formally. These
rights are integral to the values of human dignity, equality and
freedom that are fundamental
to our constitutional order. The denial
of these rights to human beings who are physically inside the country
at sea- or airports
merely because they have not entered South Africa
formally would constitute a negation of the values underlying our
Constitution.
It could hardly be suggested that persons who are being
unlawfully detained on a ship in South African waters cannot turn to
South
African courts for protection, or that a person who commits
murder on board a ship in South African waters is not liable to
prosecution
in a South African court.’
2
[21] It is a matter for comment that the respondents
were parties to that matter and that the Constitutional Court
rejected a similar
argument that was advanced in the court below and
before us. No submission was made before us that would justify any
departure
by this court from the principles laid down in that
decision.
[22] Passengers on an international
flight landing in South Africa are subject to the jurisdiction of
South African courts:
Nkondo
v Minister of Police & another
1980
(2) SA 894
(O). The respondents’ submission is not only
incompatible with the provisions of the 1951 United Nations
Convention on the
Status of Refugees and its Protocol as well as the
1969 Convention Governing the Specific Aspects of Refugee Problems in
Africa,
but also with the provisions of the Act, section 6 of which
provides for it to be applied with due regard to the provisions of
the UN Convention and its Protocol as well as the 1969 OAU
Convention. The Act also provides for the admission of foreigners who
find themselves in distressed circumstances owing to the conditions
enumerated in ss 2 and 3 thereof.
3
The words of the Act mirror those of
the UN Convention and the OAU Convention of 1969.
4
They patently prohibit the prevention
of access to the Republic of any person who has been forced to flee
the country of her or
his birth because of any of the circumstances
identified in s 2 of the Act. Refugees entitled to be recognised as
such may more
often than not arrive at a port of entry without the
necessary documentation and be placed in an inadmissible facility.
5
Such persons have a right to apply
for refugee status, and it is unlawful to refuse them entry if they
are
bona fide
in
seeking refuge. The Department’s officials have a duty to
ensure that intending applicants for refugee status are given
every
reasonable opportunity to file an application with the relevant
Refugee Reception Office – unless the intending applicant
is
excluded in terms of s 4 of the Act.
6
[23] An intending applicant’s rights are clearly
justiciable, even if the individual is held in an inadmissible
facility.
The Act indubitably applies to the very category of persons
into which the appellants fall. The respondents’ argument that
the Act does not apply to them ignores the very reason for placing
the Act on the statute book.
[24] The Act’s provisions are
in accordance with international law and practice, as evidenced by
decisions of the European
Court of Human Rights to which we were
referred by counsel for the appellants:
Amuur
v France
(1996) 23
EHRR 533
and
Riad
and Idiab v Belgium
No
29787/03. In both instances that court had no difficulty in holding
that municipal courts had jurisdiction to deal with the rights
of
persons held in circumstances similar to those of the appellants.
[25] The respondents relied on the Chicago Convention on
International Civil Aviation to support the argument that an
inadmissible
facility is the domain of international carriers who are
responsible for the transport of deportees to the state to which the
deporting
state has decreed that they should be deported to,
regardless whether the deportees are refugees from that country or
not. It appears,
however, that they had the previous version of
Article 5.4 of Annex 9 to the Convention (Standards and Recommended
Practices on
Facilitation) in mind, which placed the responsibility
for looking after a person who was denied entry into a contracting
state’s
territory on the carrier who transported him or her to
the relevant Port of Entry. Counsel for the appellant drew attention
to
the latest version of this particular Article, to which a note was
added in 2005 which reads:
‘
Note –
nothing in this provision is to be construed so as to allow the
return of a person seeking asylum in the territory
of a Contracting
State, to a country where his life or freedom would be threatened on
account of his race, religion, nationality,
membership in a
particular social group or political opinion.’
The Convention, which has been incorporated into our
municipal law by the
Civil Aviation Act 13 of 2009
, thus provides no
support for the respondents’ case.
[26] The appellants would face a real
risk of suffering physical harm if they were forced to return to
Somalia. It is obvious that
no effective guarantee can be given that
the appellants would not be persecuted or subjected to some form of
torture, or cruel,
inhuman and degrading treatment if they are
compelled to re-enter that country. It is the prevention of this harm
that the Act
seeks to address by prohibiting a refugee’s
deportation. Deportation to another state that would result in the
imposition
of a cruel, unusual or degrading punishment is in conflict
with the fundamental values of the Constitution:
Mohamed
& another v President of the Republic of South Africa &
others (Society for the Abolition of the Death Penalty in
South
Africa & another intervening)
[2001] ZACC 18
;
2001
(3) SA 893
(CC) in which the court stated:
7
‘
In
Makwanyane Chaskalson P said that by committing ourselves to a
society founded on the recognition of human rights we are required
to
give particular value to the rights to life and dignity, and that
'this must be demonstrated by the State in everything that
it does'.
In handing Mohamed over to the United States without securing an
assurance that he would not be sentenced to death, the
immigration
authorities failed to give any value to Mohamed's right to
life, his right to have his
human dignity respected and protected and his right not to be
subjected to cruel, inhuman or degrading
punishment. . . .
‘
But
whatever the position may be under Canadian law where deprivation of
the right to life, liberty and human dignity is dependent
upon the
fundamental principles of justice, our Constitution sets different
standards for protecting the right to life, to human
dignity and the
right not to be treated or punished in a cruel, inhuman or degrading
way. Under our Constitution these rights are
not qualified by other
principles of justice. There are no such exceptions to the protection
of these rights. Where the removal
of a person to another country is
effected by the State in circumstances that threaten the life or
human dignity of such person,
ss 10 and 11 of the Bill of Rights are
implicated. There can be no doubt that the removal of Mohamed to the
United States of America
posed such a threat. This is perhaps best
demonstrated by reference to the case of Salim, who was extradited
from Germany to the
United States subject to an assurance that the
death penalty would not be imposed on him. This assurance has been
implemented by
the United States and Salim is to be tried in
proceedings in which the death sentence will not be sought. . . .
It is not only ss 10 and 11 of
the Constitution that are implicated in the present case. According
to s 12(1)(d) and (e) of our
Constitution, everyone has the right to
freedom and security of the person, which includes the right not to
be tortured in any
way and not to be treated or punished in a cruel,
inhuman or degrading way. For the reasons given in Makwanyane, South
African
law considers a sentence of death to be cruel, inhuman and
degrading punishment.’
[27] By the same token, refusing a refugee entry to this
country, and thereby exposing her or him to the risk of persecution
or
physical violence in his home country is in conflict with the
fundamental values of the Constitution.
[28] The argument that a South African court has no
jurisdiction over the Inadmissible Facility by virtue of the fiction
that it
does not form part of the Republic’s territory is
wrong. Potential asylum seekers and refugees held in that facility
are
entitled to the assistance of the Department’s officials
and need show no more than that they are persons who might qualify
as
refugees or asylum seekers. Whether or not the appellants were
previously admitted to the Republic or were granted the status
of
recognized refugee or asylum seeker is irrelevant for the
determination of this question.
[29] The suggestion that a Namibian
deportation order precludes the South African authorities and courts
from dealing with the case
of a Namibian deportee who is held in an
inadmissible facility at a South African port of entry is untenable.
If correct, it would
constitute an unwarranted administrative
intrusion into the affairs of the Republic, a sovereign state. This
suggestion is foreign
to international law:
Commissioner
of Taxes, Federation of Rhodesia v McFarland
1965
(1) SA 470
(W) at 473G - 474G. A sovereign State has exclusive
control over its territory. Foreign States may exercise only such
authority
in its domain as may be agreed by international treaty.
Dugard
International
Law – A South African Perspective
3
rd
ed (2005) p 82 states that statehood
is defined by a) a permanent population; b) a defined territory; c)
government; and d) capacity
to enter into relations with other
states. He adds in respect of the characteristic of government: ‘In
order to meet this
requirement a state must have a government that is
in effective control of its territory, and that is independent of any
other
authority.’ South Africa is clearly a sovereign and
independent state.
8
The appellants are within this
country and are entitled to the protection of its laws, even if they
happen to have arrived here
in the course of being deported from
another sovereign and independent state The respondents’
contrary contentions are without
merit.
[30] The respondents sought to persuade this Court that
the appellants were not held by them, but by the fourth and fifth
respondents,
who fall under the Department of Transport’s
jurisdiction. This argument was not raised in the court below. It is
pure sophistry.
Refugees are the responsibility of the respondents,
who are tasked by the Act to attend to individuals who find
themselves in such
invidious circumstances. The fourth and fifth
respondents did not oppose the application. The respondents’
refusal to allow
the appellants to enter the country is the single
cause for their continued sojourn in the Inadmissible Facility.
Nothing more
need be said about this submission.
[31] The respondents’ contention that the
appellants would not be deported, but only returned to Namibia, where
they would
not face physical hardship, is also bereft of validity. If
returned to Namibia the appellants would simply be deported again –
this time perhaps via another country - to Somalia.
[32] The further suggestion that the
appellants had waived their right to be considered as refugees or
asylum seekers, advanced
for the first time in reaction to a question
by this court, faces insurmountable obstacles. Waiver is never to be
presumed, especially
not in respect of an alleged surrender of the
protection afforded by fundamental rights.
9
Quite apart from the fact that
reg 9(1) published in terms of the Act expressly provides for a
second application by a returning
refugee, there is nothing in the
papers to suggest that the appellants were aware of the full extent
of their rights, or that they
appreciated that their departure might
be regarded as a waiver of the
protection they enjoyed under the Act. There can be no suggestion
that the appellants intended to
abandon their respective refugee or
asylum seeker status.
[33] It follows that the appeal must succeed. However,
it is unfortunately necessary to comment upon the respondents’
approach
to this litigation. Section 7 of the Constitution imposes
the duty on organs of State – and thus on officials of the
Department
– to ‘respect, promote and fulfil the rights
in the Bill of Rights.’ The respondents’ officials have
failed
to comply with these demands. It is obvious from the manner in
which they dealt with the appellants that they had little regard
to
their fears for their safety should they be compelled to return to
Somalia.
[34] A copy of the second appellant’s Recognised
Refugee Status Permit was annexed to the founding affidavit. It
contained
a clear fingerprint and a clear Bar Code which, if it had
been read even once, would have provided confirmation of second
appellant’s
status and identity. Marule failed to inform the
court whether or not he had inspected the Bar Code. He adopted an
evasive approach
by arguing that if second appellant had left the
country in 2009, he could not have been issued with a permit in 2010.
When the
correct date was recorded in the replying affidavit, no
attempt was made to place the correct information on record and to
concede
what could not be denied. Instead, Marule indulged in a
sophistic exercise of referring to another official, one Sibanyone,
who
had allegedly informed him that the permit was not authentic. Her
so-called confirmatory affidavit, upon which he relied, revealed
no
more than a laconic confirmation of Marule’s allegation as far
as they related to her. This slothful way of placing Sibanyone’s
evidence before the court resulted in her confirming no more than
that she had told Marule what he said she had, but this is no
evidence of the truth of the content of that statement or why she had
said that the permit was not authentic. This comes perilously
close
to a deliberate failure to take the court into the official’s
confidence.
[35] Similar criticism must be levelled at the
respondents’ failure to inform the court immediately of the
fact that the appellants’
files had been traced in the
Department’s records. In spite of the fact that the respondents
could no longer harbour any
doubt about the appellant’s
identity once the correct file numbers were placed on record, and
they were therefore in duty
bound to set the record straight, the
respondents persisted in their heads of argument with the denial of
being in possession of
any record relating to the appellants, putting
them to needless effort and expense to meet this spurious defence.
[36] Our courts have on several
occasions expressed their disquiet at the failure of Government
officials, including the Department’s
officials, to respect the
rights of individuals they deal with and to act in accordance with
their duties imposed by the Constitution:
Eveleth
v Minister of Home Affairs & another
2004
(11) BCLR 1223
(T) paras 45 to 48;
Nyathi
v MEC for the Gauteng Deparrtment of Health & another
2008
(5) SA 94
(CC);
Total
Computer Services (Pty) Ltd v Municipal Mayor, Potchefstroom Local
Municipality & others
[2007] ZAGPHC 239
;
2008
(4) SA 346
(T) para 21;
Van
Straaten v President of the Republic of South Africa & others
2009 (3) SA 457
(CC). In the present
instance the respondents’ officials failed to understand the
very object and purpose of the Act it was
their duty to apply,
causing unnecessary litigation and wasted costs. Had the appellants
given timeous notice of an intention to
apply for a punitive costs
order, such would in all likelihood have been granted.
[37] The respondents also argued that even if the appeal
succeeded they should not be held liable for the appellants’
costs.
This argument, too, is devoid of substance. The appellants had
to approach a court to avoid their deportation and this court in
order to obtain relief denied them in the court below. There is no
reason for costs not to follow the event.
[38] The appeal is upheld with costs, including the
costs of two counsel. The order of the court a quo is set aside and
replaced
with the following order (for completeness I repeat
paragraphs 1 – 4 of the order granted at the conclusion of the
appeal):
‘
1. The
Fourth and Fifth Respondents are directed forthwith to release the
Applicants from detention in the Inadmissible Facility
at OR Tambo
International Airport.
2. It is declared that the First
Applicant is entitled to remain in South Africa until a decision has
been made on his application
for asylum and, where applicable, the
Applicant has had an opportunity to exhaust his rights of review or
appeal in terms of Chapter
2 of the
Refugees Act 130 of 1998
and the
Promotion of Administrative Justice Act 3 of 2000
.
3. It is declared that the
Second Applicant is entitled to remain in South Africa in accordance
with his status as a refugee.
4. The First and Second
Respondents are directed forthwith to issue each of the First and
Second Applicants with an Asylum Transit
Permit in terms of
section
23
of the
Immigration Act 13 of 2002
. Such permits shall remain valid
for 14 days, during which period the First and Second Applicant will
reside at My Lillipot Shelter,
4
th
Street Rosettenville, or such
other address as it provided to the First and Second Respondents.
5. The first and second
respondents are ordered to pay the costs of the application, jointly
and severally, the one to pay, the
other to be absolved, including
the costs of two counsel where applicable.’
_________________________
E BERTELSMANN
ACTING JUDGE OF APPEAL
APPEARANCES:
For
appellants: S Budlender
J
van Garderen
N
Lewis
Instructed
by:
Lawyers for Human Rights Johannesburg Law Clinic,
Johannesburg
Webbers, Bloemfontein
For
respondents: N Cassim SC
N
Manaka
Instructed
by:
The
State Attorney, Pretoria
The
State Attorney, Bloemfontein
1
'27
Protection and general rights of refugees
A
refugee –
is
entitled to a formal written recognition of refugee status in the
prescribed form;
enjoys
full legal protection, which includes the rights set out in Chapter
2 of the Constitution and the right to remain in
the Republic in
accordance with the provisions of this Act;
is
entitled to apply for an immigration permit in terms of the Aliens
Control Act, 1991, after five years’ continuous
residence in
the Republic from the date on which he or she was granted asylum,
if the Standing Committee certifies that he
or she will remain a
refugee indefinitely;
is
entitled to an identity document referred to in section 30;
is
entitled to a South African travel document on application as
contemplated in section 31;
is
entitled to seek employment; and
Is
entitled to the same basic health services and primary education
which the inhabitants of the Republic receive from time to
time.’
2
See
further Madala J’s minority judgment paras 55 to 57.
3
‘
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-
he
or she may be subjected to persecution on account of his or her
race, religion, nationality, political opinion or membership
of a
particular social group; or
his
or her life, physical safety or freedom would be threatened on
account of external aggression, occupation, foreign domination
or
other events seriously disturbing or disrupting public order in
either part or the whole of that country.’
3 Refugee status
Subject to Chapter 3, a person qualifies for refugee
status for the purposes of this Act if that person-
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
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
is a dependant of a person contemplated in paragraph
(a) or (b).’
Sections 2, 3 and 4 of the Act have been amended by the
Refugees Amendment Act 33 of 2008
, which has not yet been
implemented. The amendments do not change the essential spirit or
import of the Act.
4
1969
OAU Convention
'Article
1
Definition
of the term "Refugee"
1. For the purposes of this Convention, the term
"refugee" shall mean every person who, owing to
well-founded fear of
being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political
opinion, is
outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the protection
of that country, or who, not having a nationality and being outside
the country of his former habitual residence as a result of
such
events is unable or, owing to such fear, is unwilling to return to
it.
2. The term "refugee" shall also apply to
every person who, owing to external aggression, occupation, foreign
domination
or events seriously disturbing public order in either
part or the whole of his country of origin or nationality, is
compelled
to leave his place of habitual residence in order to seek
refuge in another place outside his country of origin or
nationality.
3. In the case of a person who has several
nationalities, the term "a country of which he is a national"
shall mean
each of the countries of which he is a national, and a
person shall not be deemed to be lacking the protection of the
country
of which he is a national if, without any valid reason based
on well-founded fear, he has not availed himself of the protection
of one of the countries of which he is a national.
4. This Convention shall cease to apply to any refugee
if: (a) he has voluntarily re-availed himself of the protection of
the
country of his nationality, or, (b) having lost his nationality,
he has voluntarily reacquired it, or, (c) he has acquired a new
nationality, and enjoys the protection of the country of his new
nationality, or, (d) he has voluntarily re-established himself
in
the country which he left or outside which he remained owing to fear
of persecution, or, (e) he can no longer, because the
circumstances
in connection with which
he was recognized as a refugee have ceased to exist,
continue to refuse to avail himself of the protection of the country
of his
nationality, or, (f) he has committed a serious non-political
crime outside his country of refuge after his admission to that
country as a refugee, or, (g) he has seriously infringed the
purposes and objectives of this Convention.
5. The provisions of this Convention shall not apply to
any person with respect to whom the country of asylum has serious
reasons
for considering that:
(a) he has committed a crime against peace, a war
crime, or a crime against humanity, as defined in the international
instruments
drawn up to make provision in respect of such crimes;
(b) he committed a serious non-political crime outside
the country of refuge prior to his admission to that country as a
refugee;
(c) he has been guilty of acts contrary to the purposes
and principles of the
Organization
of African Unity;
(d) he has been guilty of acts contrary to the purposes
and principles of the United Nations.
For the purposes of this Convention, the Contracting
State of Asylum shall determine whether an applicant is a refugee.
Article
2
Asylum
Member States of the OAU shall use their best
endeavours consistent with their respective legislations to receive
refugees and
to secure the settlement of those refugees who, for
well-founded reasons, are unable or unwilling to return to their
country
of origin or nationality.
The grant of asylum to refugees is a peaceful and
humanitarian act and shall not be regarded as an unfriendly act by
any Member
State.
3. No person shall be subjected by a Member State to
measures such as rejection at the frontier, return or expulsion,
which would
compel him to return to or remain in a territory where
his life, physical integrity or liberty would be threatened for the
reasons
set out in Article I, paragraphs 1 and 2.
4. Where a Member State finds difficulty in continuing
to grant asylum to refugees, such Member State may appeal directly
to other
Member States and through the OAU, and such other Member
States shall in the spirit of African solidarity and international
cooperation
take appropriate measures to lighten the burden of the
Member State granting asylum.
5. Where a refugee has not received the right to reside
in any country of asylum, he may be granted temporary residence in
any
country of asylum in which he first presented himself as a
refugee pending arrangement for his resettlement in accordance with
the preceding paragraph.
6. For reasons of security, countries of asylum shall,
as far as possible, settle refugees at a reasonable distance from
the frontier
of their country of origin.'
5
Yacoob
J’s description of alleged illegal foreigners in
Lawyers
for Human Rights
supra para 20 applies in equal measure to
refugees and asylum seekers:
‘
The provisions challenged in
the High Court are of immense public importance, being concerned
with a delicate issue that has implications
for the circumstances in
and the extent to which we restrict the liberty of human beings who
may be said to be illegal foreigners.
The determination of this
question could adversely affect not only the freedom of the people
concerned but also their dignity
as human beings. The very fabric of
our society and the values embodied in our Constitution could be
demeaned if the freedom
and dignity of illegal foreigners are
violated in the process of preserving our national integrity.
Moreover, many of the people who arrive at a port of
entry without being entitled to any of the large variety of
residence permits
allowed by the Act may be vulnerable and poor
without support systems, family, friends or acquaintances in South
Africa. Their
understanding of the South African legal system, its
values, its laws, its lawyers and its non-governmental organisations
may
be limited indeed. Finally, it is apparent that in most cases,
the ship that brought the affected person into the country would
depart within a few days, and in many cases in under 24 hours of its
arrival.’
6
‘
4
Exclusion from refugee status
A person does not qualify for refugee status for the
purposes of this Act if there is reason to believe that he or she-
has committed a crime against peace, a war crime or a
crime against humanity, as defined in any international legal
instrument
dealing with any such crimes; or
has committed a crime which is not of a political
nature and which, if committed in the Republic, would be punishable
by imprisonment;
or
has been guilty of acts contrary to the objects and
principles of the United Nations Organisation or the Organisation
of African
Unity; or
enjoys the protection of any other country in which he
or she has taken residence.
For the purposes of subsection (1) (c), no exercise of
a human right recognised under international law may be regarded as
being
contrary to the objects and principles of the United Nations
Organisation or the Organisation of African Unity.’
7
7
Paragraphs 48, 52 and 54.
8
Friedman
J identified independence in a defined territory as a key aspect of
sovereignty in
S v Banda & others
1989 (4) SA 519
(BG) at
524F – 525G, adopting the concept of territorial sovereignty
coined in the
Island of Palmas Arbitration
by Max Huber.
‘
It is beyond question that
the Republic of South Africa is a sovereign State having majestas,
and is recognised as such internationally.
Sovereignty has been
defined in international law G by Max Huber, Arbitrator on
Territorial Sovereignty, in Island of Palmas
Arbitration (1928) 22
AJIL 867 at 874, 875, 876 as follows:
“
. . .Sovereignty in relation
to a portion of the surface of the globe is the legal condition
necessary for the inclusion of such
portion in the territory of any
particular State. . . . Sovereignty in the relation between States
signifies independence. Independence
in regard to a portion of the
globe is the right to exercise therein, to the exclusion of any
other State, the functions of a
State. The development of the
national organisation of States during the last few centuries and,
as a corollary, the development
of international law, have
established this principle of the exclusive competence of the State
in regard to its own territory
in such a way to make it the point of
departure in settling most questions that concern international
relations. . . .
Territorial sovereignty, as has already been said,
involves the exclusive right to display the activities of a State.
This right
has as a corollary a duty: the obligation to protect
within the territory the rights of other States, in particular their
right
to integrity and inviolability in peace and in war, together
with the rights which each State may claim for its nationals in
foreign territory. Without manifesting its territorial sovereignty
in a manner corresponding to circumstances, the State cannot
fulfil
this duty. Territorial sovereignty cannot limit itself to its
negative side, ie to excluding the activities of other States;
for
it serves to divide between nations the space upon which human
activities are employed, in order to assure them at all points
in
the minimum of protection of which international law is the
guardian. . . . ”
‘
An incident of the general
right of sovereignty is the right of a State to deal with its
territory. According to the
Journal
of American Jurisprudence
:
'It is part of the general right of sovereignty
belonging to independent nations to establish and fix the disputed
boundaries
between their respective limits. The boundaries so
established and fixed by compact between nations become conclusive
on all
the subjects and citizens thereof, and bind their rights;
they are to be treated, to all intents and purposes, as the real
boundaries.
Included within the territory of a nation are all such
islands as are natural appendages of the coast on which they border
and
from which they are formed. It is immaterial whether they are
formed of earth, sand, rock, or some other substance, or whether
they are of sufficient firmness to be inhabited or fortified.
Islands of alluviation are within the rule. Governments as well
as
private persons are bound by the practical line that has been
recognised and adopted as their boundary. A settlement of national
boundaries is not a judicial, but a political, question. The courts
are bound by the decisions of the executive and legislative
departments of the government in this respect, and judicial notice
may be taken of the territorial extent of the nation whose
laws the
courts administer.'
(See 45 Am Jur 2d S 23 at 363.) 'Sovereignty' has been
further defined in 45 Am Jur 2d S 37 at 378 as follows:
'"Sovereignty", in its full sense, imports
the supreme, absolute, and uncontrollable power by which an
independent State
is governed. (Moore v Smaw
17 Cal 199
, 218; M
Salimoff & Co v Standard Oil Co 237 App Div 686,
262 NYS 639
,
affd
262 NY 220
,
186 NE 679
, F
89 ALR 345.
For other definitions,
see Brandes v Mitterling
67 Ariz 349
,
196 P2d 464
; Bisbee v Cochise
County
52 Ariz 1
,
78 P2d 982
; Antonik v Chamberlain
81 Ohio App 465
,
37 Ohio Ops 305
,
78 NE2d 752.)'
In addition thereto, each State legislates for itself,
but its legislation can operate on itself alone, and except as
otherwise
provided by statute or government, only within its own
territory.’
9
Mahomed’s
case paras 62 to 64.