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[2017] ZASCA 40
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Minister of Home Affairs and Others v Saidi and Others (294/2016) [2017] ZASCA 40; 2017 (4) SA 435 (SCA); [2017] 2 All SA 755 (SCA) (30 March 2017)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 294/2016
In the
matter between:
THE
MINISTER OF HOME AFFAIRS FIRST
APPELLANT
DIRECTOR-GENERAL:
DEPARTMENT
SECOND APPELLANT
OF HOME
AFFAIRS
MS THEMBI
NDLOVU, ACTING MANAGER
THIRD APPELLANT
CAPE
TOWN REFUGEE FACILITY
and
CISHAHAYO
SAIDI
FIRST RESPONDENT
MICHAEL
BALENZI
SECOND RESPONDENT
LOSOKO
CAMILLE MBOYO
THIRD RESPONDENT
FANNY
AYEMBE MOTANGO FOURTH
RESPONDENT
NGALULA
GLADYS KANULAMBI
FIFTH RESPONDENT
VANNY
MUKEBA MUKENDI
SIXTH RESPONDENT
RUTH MAN
YONGA KABWE
SEVENTH RESPONDENT
MANFRED
LOBE
EIGHTH RESPONDENT
DIEMO MUDIK
MUKUNGWA
NINTH RESPONDENT
JUSTINE
NGALULA
TENTH
RESPONDENT
CHIMENE
KUITCHOU FOBI
ELEVENTH RESPONDENT
AMANI JONAS
NGULWE
TWELFTH RESPONDENT
MINGA PAPY
MINGASHANGA
THIRTEENTH RESPONDENT
AYMAR WILLY
MAKANGOU
FOURTEENTH RESPONDENT
MOUSTAPHA
KANE
FIFTEENTH RESPONDENT
KADIMA
MUKENDI
SIXTEENTH RESPONDENT
GERTRUDE
AKIIKI NYANDOI
SEVENTEENTH RESPONDENT
OCHEN
MUSSA
EIGHTEENTH RESPONDENT
ISSA
NZOBONIMPA
NINETEENTH
RESPONDENT
GRIESSE
MPIANA BADIBANGA
TWENTIETH RESPONDENT
MPANDA
KAGOMA
MWAMEDI
TWENTY-FIRST RESPONDENT
GINA KABWIZ
KAKEZ
TWENTY-SECOND RESPONDENT
BEMBA
BENJAMIN
TWENTY-THIRD RESPONDENT
BERTHELEMY
LOUIS
MUTOMBO
TWENTY-FOURTH RESPONDENT
FRANCK
ARSENE MAHOUNGOU
TWENTY-FIFTH RESPONDENT
GABRIEL
SHIMBI WA-KONYI
TWENTY-SIXTH RESPONDENT
SOLOMON
YIZAW BEHONYE
TWENTY-SEVENTH RESPONDENT
SAIDY
WELONGO SAIDY
TWENTY-EIGHTH
RESPONDENT
Neutral
citation:
Minister
of Home Affairs v Saidi
(294/2016)
[2017] ZASCA 40
(30 March 2017)
Coram:
Maya AP, Majiedt and Swain JJA and
Gorven and Mbatha AJJA
Heard
:
7 March 2017
Delivered:
30 March 2017
Summary:
Refugees Act 130 of
1998
:
section 21(1)
: refusal of application for asylum :
Chapter 4 rights of review and appeal : unsuccessful :
section 22(1)
: grant of asylum seeker permit :
section 22(3)
: Refugee
Reception Officer empowered to extend permit pending outcome of
judicial review : no substantive legitimate expectation
that permits
would be extended : no grounds for court to assume decision makers
discretion to extend permits.
ORDER
On
appeal from:
Western
Cape Division of the High Court (Nuku AJ sitting as court of first
instance):
1
The appeal is dismissed with costs.
2
The cross-appeal is dismissed.
JUDGMENT
Gorven
AJA
(Maya AP, Swain
and Majiedt JJA and Mbatha AJA concurring):
[1]
Persons seeking to
escape threatening situations in their home countries are sometimes
driven to seek refuge elsewhere. They are
accordingly known across
the world as refugees. Such is their desperation that they almost all
enter the country where they seek
refuge illegally and without any
official documents. As was said by this court, our legislature has
responded to their plight:
‘
The condition
of being a refugee connotes a “special vulnerability as
refugees by definition are persons in flight from the
threat of
serious human rights abuse”. . . That especial vulnerability is
recognised in our legislation governing the status
of refugees —
the
Refugees Act
. . . .’
[1]
Even
more vulnerable are those who seek asylum while they await the
outcome of an application for refugee status. This appeal concerns
people in that position.
[2]
A procedure is set out
in the
Refugees Act (the
Act)
[2]
which governs applications for refugee status. An asylum seeker who
is seeking recognition as a refugee must apply for asylum to
the
Refugee Reception Officer (the RRO).
[3]
Pending the outcome of the application, the RRO is obliged to issue
an asylum seeker with a permit entitling her or him to remain
in
South Africa.
[4]
The permit must be issued in the form set out in the Regulations to
the Act.
[5]
These require that the permit must be of ‘limited duration and
contain an expiry date.’
[6]
The Standing Committee for Refugee Affairs (the Standing Committee)
may determine conditions for the permit.
[7]
The RRO is empowered to extend the period reflected in the permit
from time to time and to amend the conditions.
[8]
The first appellant (the Minister) may withdraw the permit on the
happening of specified events.
[9]
If the Minister has withdrawn the permit, he may cause the holder to
be ‘arrested and detained pending the finalisation of
the
application for asylum . . . .’
[10]
[3]
A Refugee Status
Determination Officer (RSDO) decides the application for refugee
status. The RSDO has four possible options once
the application has
been considered: the grant of asylum;
[11]
the rejection of the application as manifestly unfounded, abusive or
fraudulent;
[12]
the rejection of the application as unfounded;
[13]
or the reference of any question of law to the Standing
Committee.
[14]
Where the application is rejected, internal mechanisms are created
for the decision to be reviewed or appealed
(the
internal remedies)
. If
rejected because it is found to be manifestly unfounded, abusive or
fraudulent under
s 24(3)
(b)
,
an automatic internal review process by the Standing Committee is
triggered.
[15]
If rejected simply as being unfounded
under
s 24(3)
(c)
,
an asylum seeker is given the right to lodge an appeal with the
Appeal Board.
[16]
If the asylum seeker exercises that
right, the internal appeal process then takes place. Chapter 4 of the
Act deals with these procedures.
[4]
The outcome of both
this appeal and cross-appeal hinges on the power to extend the
permits which are issued to asylum seekers at
the outset. The RRO is
empowered to extend them by
s 22(3)
of the Act which provides:
‘
A Refugee
Reception Officer may from time to time extend the period for which a
permit has been issued in terms of subsection (1),
or amend the
conditions subject to which a permit has been so issued.’
The
dispute between the parties relates to when this power terminates.
[5]
In the present matter,
the respondents (the asylum seekers) seek refugee status in South
Africa. They applied for asylum. They were
each issued with a permit.
They all had their applications for refugee status refused. They made
use of the internal remedies but
none of them succeeded. They then
launched individual applications to the Western Cape Division of the
High Court, mostly for judicial
review of the decision refusing them
refugee status (the review applications).
[17]
[6]
Some years ago,
difficulties arose where asylum seekers who had exhausted the
internal remedies required extensions to the permits
while they
prosecuted judicial review applications. The State Attorney, Cape
Town, agreed with the attorneys representing those
asylum seekers
that if review proceedings had been instituted in the high court, a
letter would be issued requesting that the RRO
extend the permit in
question. Pursuant to this arrangement, the asylum seekers were each
furnished with such a letter which they
took to the RRO. The RRO, who
was at the time a Mr Mathebula, then extended the permit in question.
[7]
The third appellant was
subsequently appointed as the RRO. With effect from May 2015, she
refused to extend the permits of any of
the asylum seekers. She
considered that the power to extend permits under
s 22(3)
of the
Act did not endure beyond the exhaustion of the internal remedies. In
refusing to extend the permits of the asylum seekers,
she accordingly
did not enter into the merits of any applications for extensions.
[8]
The asylum seekers then
approached the Western Cape Division of the High Court for the
following substantive relief:
‘
1
Ordering the [RRO] to issue, extend or re-issue to the [asylum
seekers] and their
families temporary asylum seeker permits in terms
of
section 22
of the
Refugees Act 130 of 1998
within one week of the
date of this Order and subsequently to extend or re-issue such
permits in accordance with the [next paragraph].
2
Ordering that permits shall be extended or re-issued and shall remain
valid
pending the final outcome of the proceedings instituted in the
High Court cases pending that were launched on behalf of the
individual
[asylum seekers], and in particular that:
2.1
the expiry date of the permits initially
issued, extended or re-issued shall be no earlier than 31 January
2016;
2.2
each subsequent extension or re-issuing
shall be for a period of not less than three months;
2.3
the further terms and conditions be the
same as those which were contained in the temporary permits of the
[asylum seekers] and
their families held or previously held by the
[asylum seekers].
3
To the extent necessary, reviewing and setting aside the decision of
the
RRO refusing to issue, extend or re-issue permits to the [asylum
seekers] and their families.
4
Ordering the Respondents to pay the costs of this application, the
one paying
the other to be absolved.’
The high
court, per Nuku AJ, declined to grant the orders sought in the first
two paragraphs of the notice of motion. Instead it
granted an order
in the following terms:
‘
1
That
Section 22
(3) of the Act empowers the Refugee Reception Officer
to extend the
Section 22
permits from time to time after an applicant
for asylum has exhausted his or her rights of review or appeal in
terms of Chapter
4 of the Act.
2
That the Third Respondent’s decision
to refuse to extend the
Section 22
permits of the applicants is
reviewed and set aside. The matter is remitted back to the Third
Respondent for consideration.
3
That Respondents are to pay the costs.’
[9]
The appellants were
granted leave to appeal against this judgment and order. The asylum
seekers were likewise granted leave to cross-appeal
against the
refusal to direct the RRO to issue, re-issue or extend the permits.
In both instances leave was granted by the high
court.
[10]
The crisp issue in the
appeal is whether
s 22(3)
of the Act empowers the RRO to extend
permits once the internal remedies have been exhausted by an asylum
seeker. The crisp issue
in the cross-appeal is whether, if this Court
finds that she is so empowered, the high court should have directed
the RRO to extend
the permits if an application for judicial review
of the refusal of asylum is pending. I shall deal with each of these
in turn.
[11]
It is the
interpretation of
s 22(3)
which is in issue. A number of
principles of interpretation find application. I begin with the
principle that the process of interpretation
is an
objective
one. ‘The “inevitable point of departure is the language
of the provision itself” read in context and
having regard to
the purpose of the provision and the background to the preparation
and production of the document.’
[18]
[12]
There is nothing in the
language of
s 22
(3) itself which limits the power to extend
permits to the period prior to the exhaustion of the internal
remedies. No period for
the exercise of the power is specified. The
RRO is simply given the power ‘from time to time to extend the
period for which
a permit has been issued . . . .’
[13]
Counsel for the
appellants submitted that the limitation contended for emerges when
s 22(3)
is interpreted in the light of
ss 21(1)
,
21
(4) and
22
(1). The first of these sections simply provides that an
application for asylum must be made to the RRO. The relevant parts
of
s 21(4)
provide:
‘
(4)
Notwithstanding any 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 person has had an opportunity to exhaust his or her rights of
review or appeal in terms of Chapter
4 . . . .’
And
s 22(1)
obliges the RRO to issue a permit ‘
pending
the outcome of an application . . . .’ Counsel for the
appellants submitted that, read together, this means that the
permit
endures only until the asylum seekers have had the opportunity to
exhaust the internal remedies.
[19]
It was submitted that this is so because the moratorium against
proceedings granted by
s 21(4)
ends once the internal remedies
have been exhausted. The outcome referred to in
s 22(1)
must
thus have been reached when the internal remedies have been
exhausted. Accordingly, a permit may also not be extended beyond
the
date when the internal remedies have been exhausted.
[14]
There are a number of
difficulties with these submissions. The words relied on in
s 22(1)
– ‘pending the outcome of an application’ –
are used in relation to the issuing of a permit. They do not
find
echo in
s 22(3)
dealing with the extension of permits. In any
event, they cannot mean that the permit is issued in order to lapse
once the internal
remedies have been exhausted. I say this for a
number of reasons. First, a permit is issued with an expiry date
which must be specified
on the document. That is why it requires
extension ‘from time to time’. There is no way of knowing
when the internal
remedies will have been exhausted. It is thus not
possible to insert a date that will coincide with the date on which
the internal
remedies will have been exhausted. It is accepted by all
that a permit can be extended prior to that date. Unless the asylum
seeker
fails to have it extended, it will be extended beyond that
date. If
s 22(1)
must be interpreted to mean that the permit
automatically expires or lapses on that date, one would have expected
the legislature
to say so expressly. This was done in
s 22(5)
which provides that if asylum seekers depart South Africa without
permission from the Minister to do so, their permits lapse.
[15]
Secondly, if a permit
was issued, until the internal remedies had been exhausted, the power
to extend would only be required once
the internal remedies had been
exhausted. There would be no need to extend the permits ‘from
time to time’ before that
date. This gives an interpretation
which is precisely the opposite of the one contended for by counsel
for the appellants.
[16]
Thirdly, the submission
does not take into account other provisions in
s 22.
In the
scheme of the Act,
s 21
deals with applications while
s 22
deals with permits. The immediate context for
s 22(3)
is,
accordingly, the rest of
s 22.
Counsel for the appellants
candidly conceded that the provisions of
s 22(6)
had been
overlooked in approaching this matter. In my view, this section is of
great significance in the present matter.
Section 22(6)
provides:
‘
The Minister
may at any time withdraw an asylum seeker permit if-
(a)
the
applicant contravenes any conditions endorsed on that permit; or
(b)
the
application for asylum has been found to be manifestly unfounded,
abusive or fraudulent; or
(c)
the
application for asylum has been rejected; or
(d)
the
applicant is or becomes ineligible for asylum in terms of
section 4
or
5
.
[17]
It was accepted by
counsel for the appellants in argument that the discretion given to
the Minister to withdraw a permit in the
circumstances set out in
s 22(6)
(b)
and
(c)
arises only once the internal remedies have been exhausted. This
supports the interpretation that a permit can survive the date
on
which the internal remedies have been exhausted. If this were not so,
there would be nothing for the Minister to withdraw. More
important
is the fact that the Minister is not obliged to withdraw a permit
once the internal remedies have been exhausted. He
has a discretion
whether or not to do so. Since he has a discretion to withdraw or
leave a permit intact, the interpretation contended
for cannot be
correct. If the Minister can leave a permit intact, it seems to
envisage that this may be while an application for
judicial review of
the refusal of asylum is being dealt with. No other reason was
suggested as to why a permit would otherwise
not be immediately
withdrawn. It stands to reason that in those circumstances a permit
may also be extended.
[18]
This finds some support
in
s 23
of the Act.
[20]
If the Minister has withdrawn a
permit,
s 23
gives the Minister a discretion to cause an asylum
seeker to be arrested and detained ‘pending the finalisation of
the application
for asylum’. The words ‘pending the
finalisation of the application’ presuppose that, at that
stage, an application
has not been finalised. These words – and
those in
s 22(1)
, ‘
pending
the outcome of an application’ –
differ
from the words in
s 21(4)
, ‘a decision has been made on
the application’. The latter phrase clearly refers to the
decision of the RSDO since
it is followed by a reference to the
asylum seeker then having ‘an opportunity to exhaust his or her
rights of review or
appeal in terms of Chapter 4’. No mention
is made in that section of the finalisation or outcome of an
application for asylum.
This lends credence to an interpretation that
‘finalisation of an application’ would include any
judicial review application.
Only once this has been dealt with is
the application for asylum finalised.
[19]
In addition, if the
discretions to withdraw, and arrest and detain, in
s 22(6)
and
s 23
respectively, arise after the exhaustion of the internal
remedies, those provisions dovetail with the time when the
s 21(4)
moratorium against proceedings involving asylum seekers is lifted. In
those circumstances neither the actions of the Minister to
arrest or
to detain an asylum seeker at that time would offend against the
provisions of
s 21(4).
[20]
Counsel for the asylum
seekers also relied on
ss 21(4)
and
22
(1) to submit that the RRO
is given the specific power to extend pending the outcome of a
judicial review. It was submitted that
the phrase in
s 21(4)
,
‘rights of review or appeal in terms of Chapter 4’,
supports this interpretation. In this regard, much was made of
the
fact that the word ‘rights’ is rendered in the plural.
This plural, it was submitted, applies to the word ‘review’
giving more than one right of review. The second right of review
would be a judicial review. On this approach, only the word ‘appeal’
is qualified by the words ‘in terms of Chapter 4’.
Counsel conceded that the inherent difficulty with this submission
is
that it requires the addition of a comma to the text. The relevant
part would then read ‘rights of review, or appeal in
terms of
Chapter 4’. But no comma has been included. And Chapter 4 deals
with two rights, that of internal review and internal
appeal. There
is nothing in the text to suggest that the word ‘rights’
does not refer to the two rights in Chapter
4. No absurdity arises
from a straightforward textual reading. It is therefore inappropriate
to read in a comma where none has
been included.
[21]
But the process of
interpretation does not stop at considering the language in its
context. Regard must be had to
‘
the
purpose of the provision and the background to the preparation and
production of the document’.
[21]
Prior to the
promulgation of the Act, persons seeking asylum in the Republic were
dealt with under the Aliens Control Act 96 of
1991. In general terms,
that legislation was couched in prohibitive terms and sought to
exclude refugees from the Republic. This
Court has already recognised
that the
Refugees Act signalled
a decisive break with such past
legislation.
[22]
This break from the past is signalled
by the stated purpose of the Act:
‘
To give effect
within the Republic of South Africa to the relevant international
legal instruments, principles and standards relating
to refugees; to
provide for the reception into South Africa of asylum seekers; to
regulate applications for and recognition of
refugee status; to
provide for the rights and obligations flowing from such status; and
to provide for matters connected therewith.’
[22]
The purpose of the Act
and the background to its promulgation clearly seeks to apply the
values espoused in the Constitution,
[23]
including human dignity, the advancement of human rights and freedoms
and the supremacy of the Constitution and the rule of law.
It also
seeks to give effect to a commitment to the comity of nations and a
desire to bring our legislation concerning refugees
into line with
the human rights and other instruments mentioned in the Act and the
standards and principles of international law.
And, in case this is
not sufficiently clear, s 6(1) of the Act itself states that the
Act must be interpreted with due regard
to: the Convention Relating
to the Status of Refugees (UN, 1951); the Protocol Relating to the
Status of Refugees (UN, 1967); the
OAU Convention Governing the
Specific Aspects of Refugee Problems in Africa (OAU, 1969); the
Universal Declaration of Human Rights
(UN, 1948) and any other
relevant convention or international agreement to which the Republic
is or becomes a party.
[23]
An international
principle of cardinal importance when dealing with refugees is that
of non-refoulement.
[24]
The Convention Relating
to the Status of Refugees
provides:
‘
Article 33
prohibition of expulsion or return (“refoulement”)
1. No Contracting State
shall expel or return (“refouler”) a refugee in any
manner whatsoever to the frontiers of territories
where his life or
freedom would be threatened on account of his race, religion,
nationality, membership of a particular social
group or political
opinion.
2. The benefit of the
present provision may not, however, be claimed by a refugee whom
there are reasonable grounds for regarding
as a danger to the
security of the country in which he is, or who, having been convicted
by a final judgment of a particularly
serious crime, constitutes a
danger to the community of that country.’
This principle
is specifically embraced in s 2 of the Act:
‘
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 of 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 or disrupting public order in
either part or the whole of that country.’
[24]
It is significant that
the effect of not having a valid permit is that the provisions of the
Immigration Act
[25]
concerning illegal foreigners come into effect. Section 23 of the
Immigration Act provides that an asylum transit visa, valid for
five
days, may be issued at a port of entry to a person claiming asylum.
If the holder does not apply for asylum under the Act
within that
period, she or he becomes an illegal foreigner under the Immigration
Act. And s 32 of that Act provides:
‘
(1) Any
illegal foreigner shall depart, unless authorised by the
Director-General in the prescribed manner to remain in the Republic
pending his or her application for a status.
(2) Any illegal
foreigner shall be deported.’
The
clear meaning is that, unless an asylum seeker has a permit, he or
she is obliged to leave South Africa and is subject to deportation.
If the RRO is not empowered to extend permits after the internal
remedies have been exhausted, the asylum seekers will be subject
to
deportation if their permits lapse before the judicial review
applications are finalised. In most cases, this is all but
inevitable.
[25]
The provisions of the
Act are designed to determine whether an asylum seeker is such a
person.
[26]
While this decision is being finalised, the Act provides temporary
refuge by way of a permit. The right to just administrative
action
contained in s 33 of the Constitution gives persons a right to
review administrative action under the Promotion of
Administrative
Justice Act (PAJA).
[27]
An adverse decision of an application
for asylum amounts to administrative action. If an application for
judicial review succeeds,
the asylum seekers could be accorded
refugee status. It stands to reason, then, that until it is finally
determined whether an
asylum seeker ‘may be subjected to
persecution’ on one of the mentioned grounds or ‘his or
her life, physical
safety or freedom would be threatened’, s 2
of the Act would militate against the return of the asylum seeker. If
the
asylum seeker was returned, and if it was later determined in the
judicial review that the asylum seeker had met the requirements
for
refugee status, s 2 of the Act, and the principle of
non-refoulement, would have been transgressed. The rights under PAJA
would also have been rendered nugatory.
[26]
This approach is
supported by the
United
Nations High Commissioner for Refugees
Handbook
[28]
(UNHCR) which includes two requirements which make the approach to be
taken while there is still a prospect that an asylum seeker
may prove
that he or she is entitled to refugee status explicit:
‘
(vi)
If the applicant is not recognised, he should be given a reasonable
time to appeal for a formal reconsideration
of the decision, either
to the same or to a different authority, whether administrative or
judicial, according to the prevailing
system.
(vii)
The applicant should be permitted to remain in the country pending a
decision on his initial
request by the competent authority referred
to in paragraph (iii) above, unless it has been established by that
authority that
his request is clearly abusive. He should also be
permitted to remain in the country while an appeal to a higher
administrative
authority or to the courts is pending.’
The rights
accorded under PAJA must be seen as part of the ‘prevailing
system’ for persons to have a decision formally
reconsidered as
provided for in the Handbook. This approach is also supported by a
directive of the European Court of Human Rights:
‘
Given the
irreversible nature of the harm that might occur if the alleged risk
of torture or ill-treatment materialised and the
importance which the
Court attaches to Article 3, the notion of an effective remedy under
Article 13 requires (i) independent and
rigorous scrutiny of a claim
that there exist substantial grounds for believing that there was a
real risk of treatment contrary
to Article 3 in the event of the
applicant’s expulsion to the country of destination, and (ii)
the provision of an effective
possibility of suspending the
enforcement of measures whose effects are potentially
irreversible’.
[29]
[27]
Section 39(2) of
the Constitution
[30]
is a bedrock principle of interpretation requiring courts to
interpret statutes so as to ‘promote the spirit, purport and
objects of the Bill of Rights’.
[31]
This has been expanded on in various ways: ‘
The
Constitution requires that judicial officers read legislation, where
possible, in ways which give effect to its fundamental
values’;
[32]
a
court
must ‘prefer a generous construction over a merely textual or
legalistic one in order to afford to claimants the fullest
possible
protection of the constitutional guarantees’;
[33]
and, again in
Bato
Star
, ‘first,
the interpretation that is placed upon a statute must, where
possible, be one that would advance at least an identifiable
value
enshrined in the Bill of Rights; and, second, the statute must be
reasonably capable of such interpretation.’
[34]
[28]
I have concluded that s
22(3) is at least capable of the interpretation that the RRO is
empowered to extend permits after the internal
remedies have been
exhausted. The rights to bodily integrity, just administrative action
and access to courts are immediately identifiable
values which would
be advanced by this interpretation. These would be placed at risk if
the asylum seekers are returned for no
other reason than that the
internal remedies have been exhausted in circumstances where judicial
review proceedings have been launched.
[29]
Counsel for the
appellants submitted that this was not a necessary outcome. The
asylum seekers are not left without a remedy if
it is found that the
RRO is not empowered to extend permits. The suggested remedy was to
approach a court for an interdict staying
their ‘arrest,
detention and deportation until the outcome of such review.’
There is at least one significant problem
with this submission. If
the Minister has withdrawn a permit, she or he has a discretion to
have the asylum seeker concerned arrested
and detained. If a court
interdicts the arrest and detention, this interferes with the
discretion of the Minister where there may
be a valid basis for this
discretion to be exercised against the asylum seeker which has
nothing to do with the application for
judicial review. If, on the
other hand, the RRO is empowered to extend permits after the
exhaustion of the internal remedies, this
leaves the discretion of
the Minister under s 22(6) intact. In addition, this option may
not be practicable where asylum seekers
have only 30 days before
deportation to bring an application and may not have access to legal
representation to assist.
[30]
All of these lead to
the conclusion that s 22(3) empowers the RRO to extend permits
after the internal remedies have been exhausted.
However, even where
the tools of text and context produce a stalemate, the Constitutional
Court has held:
‘
The balance
must be tilted by looking at which interpretation will best “promote
the spirit, purport and objects of the Bill
of Rights”.’
[35]
It was
readily conceded by counsel for the appellants that if this position
is reached in the present matter, the interpretation
of s 22(3)
which grants the RRO the power to extend permits beyond the
exhaustion of the internal remedies, must be preferred.
[31]
Taking into account the
various interpretative tools applicable to this matter, it is my view
that the high court correctly found
that the RRO is empowered to
extend permits after the internal remedies have been exhausted. I am
accordingly satisfied that the
appeal must be dismissed.
[32]
I turn to the
cross-appeal. Not content with a finding that the RRO has the power
to extend permits beyond the exhaustion of the
internal remedies,
counsel for the asylum seekers submitted that the RRO is obliged to
do so pending the outcome of an application
for judicial review, and
that the high court should have directed the RRO to do so. Counsel
for the asylum seekers relied, in this
regard, on two bases for this
submission. The first is based on the contention that the asylum
seekers have a substantive legitimate
expectation that the permits
will be extended. The second is that, if it is found that this is not
the case, the high court should
have substituted its own decision for
that of the RRO and directed the extension of the permits.
[33]
The legitimate
expectation that their permits will be renewed amounts to a
substantive legitimate expectation. In other words, it
goes beyond
any requirement that the asylum seekers are entitled to insist on
procedural fairness before a decision is made. Procedural
fairness
was the basis on which the doctrine of legitimate expectation was
introduced into our law.
[36]
This Court has expressly left open the question whether a party can
be granted substantive relief as a result of a legitimate
expectation.
[37]
The Constitutional Court has so far endorsed this approach.
[38]
[34]
Counsel for the asylum
seekers submitted, however, that this case cries out for the
extension of the doctrine so as to grant substantive
relief. In
support, counsel called in aid
KwaZulu-Natal
Joint Liaison Committee
.
It was submitted that the Constitutional Court in fact applied this
doctrine although it disavowed having done so. In that matter,
it was
accepted by the Department of Education, KwaZulu-Natal, that an
undertaking to pay subsidies had been given with an intention
to
honour it. It was held that the undertaking was that the department
‘intended to make payments in accordance with its
statutory and
constitutional obligations.’ The subsidy was held to be part of
the constitutional obligation of the state
to provide education. Once
the government promised a subsidy, the right of learners ‘not
to have their right to a basic education
impaired . . . [was]
implicated.’ The notice in question envisaged that schools
would prepare their budgets based on it.
In all the circumstances,
the notice ‘constituted a publicly promulgated promise to pay.’
Once the due date for payment
elapsed, ‘this created a legal
obligation unilaterally enforceable at the instance’ of the
named schools. It was made
clear that this was the basis for the
relief and not that the notice gave rise to a substantive legitimate
expectation of payment.
[39]
[35]
In the context of
procedural relief, Heher J examined the nature of the expectation in
National Director of
Public Prosecutions v Phillips & others
:
[40]
‘
The
requirements for legitimacy of the expectation, include the
following:
(i) The
representation underlying the expectation must be ''clear,
unambiguous and devoid of relevant qualification''.
. . .
(ii) The
expectation must be reasonable . . . .
(iii) The
representation must have been induced by the decision-maker.
(iv) The
representation must be one which it was competent and lawful for the
decision-maker to make without which
the reliance cannot be
legitimate . . . .’
[41]
Counsel
for the appellants submitted that there was no debate between the
parties that the first three of these was met. I have
considerable
difficulty with this submission. In the founding affidavit, the
asylum seekers averred that Mr Mathebula, the
RRO at the time,
‘undertook that the Respondents would renew the permits’
if he received a letter from the State Attorney
requesting that he do
so on the basis that a judicial review application had been launched.
In answer, the appellants said that
‘although it may have been
the practice in the past in respect of some of the [asylum seekers]
it should never have been
allowed’.
[36]
I am of the view that
the appellants’ response falls short of an admission that an
undertaking was given. This is buttressed
by the fact that the letter
of the State Attorney put up by the asylum seekers in support went no
further than requesting the RRO
to extend the permit concerned. No
reference was made to an undertaking.
[37]
In any event, it seems
to me that, if such an undertaking was made, it could go no further
than that Mr Mathebula would exercise
his discretion in favour of
extending permits in those circumstances. Whether it was a proper
exercise of the discretion of the
RRO to give a blanket undertaking
without considering factors other than the fact that a judicial
review was pending, is doubtful.
It is readily conceivable that
factors unrelated to the judicial review applications could militate
against the extension of a
permit. One such factor is criminal
activity on the part of the asylum seeker, as was conceded in
argument by counsel for the asylum
seekers.
[38]
Even if it can be said
that a representation was made that a permit would be extended, the
question arises whether that representation
was clear, unambiguous
and unqualified. Section 22(3) requires the RRO to make at least
three decisions. Only one of these
is to extend a permit. Permits
must be extended ‘from time to time’ to a fixed date.
This is the second decision. She
or he must also decide whether or
not to amend the conditions of the permit. This is the third. There
is no evidence that any representation
was clear as to the last two
of these matters. The representation relied on cannot thus be said to
have been clear, unambiguous
and unqualified.
[39]
As regards the fourth
requirement, it cannot be the case that Mr Mathebula was
competent to bind future RROs. I have already
adverted to the fact
that it is doubtful that he could lawfully make a blanket undertaking
to extend which had the effect of abdicating
the exercise of his
discretion to consider each application on its merits. Each RRO is
required to exercise her or his own discretion.
To fail to do so
could clearly be impugned on review.
[40]
In my view, these
factors preclude any finding that the asylum seekers proved that they
had a legitimate expectation that the permits
would be extended as
contended for by them. In addition, any representation made fell far
short of giving rise to a unilaterally
enforceable legal obligation
to extend the permits on the basis of the approach in
KwaZulu-Natal
Joint Liaison Committee
.
[41]
The requirement of the
exercise of the discretions granted to the RRO mentioned above leads
to the next issue. Counsel for the asylum
seekers submitted that
there were two reasons why the high court should have directed the
RRO to extend the permits. The first
arises from the nature of the
discretion accorded to the RRO by S 22(3). It was submitted that
the word ‘may’
in s 22(3) does not mean that the RRO
exercises a true discretion. In this regard, Wade and Forsyth
[42]
explain that:
‘
The hallmark
of discretionary power is permissive language using words such as
''may'' or ''it shall be lawful'', as opposed to
obligatory language
such as ''shall''. But this simple distinction is not always a sure
guide, for there have been many decisions
in which permissive
language has been construed as obligatory. This is not so much
because one form of words is interpreted to
mean its opposite, as
because the power conferred is, in the circumstances prescribed by
the Act, coupled with a duty to exercise
it in a proper case.’
It was
made clear, in
South
African Police Service v Public Servants Association
,
[43]
that this approach is accepted by our courts:
‘
Van
Rooyen
indicates, therefore, that
the word “may” may be construed in one of two ways:
either to give a complete discretion
to the commissioner to advertise
or not, or simply to give authorisation to the commissioner to
upgrade together with the
duty to appoint the incumbent to the
upgraded post without advertisement.’
[44]
[42]
In my view, however,
the present use of the word ‘may’ in s 22(3) falls
into the category of a true discretion
rather than the conferring of
a power coupled with a duty to use it in a certain way. As I have
said, it may be that factors such
as criminal activity on the part of
an asylum seeker have been established. In such circumstances, the
RRO would not be obliged
to extend the permit at all. The discretion
whether to extend is accompanied by a discretion as to the date to
which it is to be
extended and the discretion whether to amend the
conditions of the permit. All three are clearly beyond any power
coupled with
a duty.
[43]
The second basis relied
on for an order directing the RRO to extend the permits was that, if
the empowering provision to extend
was not accompanied by the duty to
do so, the high court should have substituted its own discretion for
that of the RRO. For similar
reasons, it is my view that the high
court was correct not to do so. The law is settled that this should
be done only in exceptional
circumstances.
[45]
The doctrine of separation of powers requires that courts, in
exercising their constitutionally ordained powers, do not trespass
on
the territory of other organs of state where they are exercising
their powers appropriately. This is known as judicial deference.
In
approaching the enquiry, certain factors must be considered:
‘
The
first is whether a court is in as good a position as the
administrator to make the decision. The second is whether
the decision
of an administrator is a foregone conclusion. These
two factors must be considered cumulatively. Thereafter, a court
should still
consider other relevant factors. These may include
delay, bias or the incompetence of an administrator. The ultimate
consideration
is whether a substitution order is just and
equitable. This will involve a consideration of fairness to all
implicated parties.
It is prudent to emphasise that the exceptional
circumstances enquiry requires an examination of each matter on a
case-by-case
basis that accounts for all relevant facts and
circumstances.’
[46]
[44]
In the present matter,
it is clear that the refusal of the RRO to extend the permits of the
asylum seekers arose from a belief that
she had no power to do so.
There is no indication on the papers that she exhibited bias or
incompetence. In the light of the discretions
involved and in the
absence of any evidence of specific factors which might influence the
manner in which those discretions should
be exercised in the cases of
individual asylum seekers, it cannot be said that the court is in as
good a position as the RRO would
be to do so. The outcome of each
individual application to extend is also not a foregone conclusion at
least as to duration and
conditions. It is, of course, clear that an
extension, subject to some conditions, will be the likely outcome
unless there are
other factors which warrant a refusal. I can think
of no other factors which would have made a substitution order by the
high court
just and equitable in this matter.
An
important factor is that none of the asylum seekers’ individual
circumstances were outlined in the papers to enable the
court a quo
to form a proper view on the applications for extensions.
The
matter was a proper one for the high court to defer to the discretion
granted to the RRO by s 22(3) and to remit the applications
for
extensions to her for consideration.
[45]
As far as costs go, it
was agreed that the principles set out in
Biowatch
Trust v Registrar, Genetic Resources
apply.
[47]
In brief, these provide that a private party who litigates against
the government to enforce a constitutional right and loses should
not
be ordered to pay costs. This is to prevent paralysis in legitimate
cases in the face of a potentially crippling costs order.
Where,
however, the government litigates against a private party and loses,
the costs should follow the result.
[48]
There is no reason to depart from these principles in the present
instance.
The following
order is made:
1
The appeal is dismissed with costs.
2
The cross-appeal is dismissed.
________________________
T
R Gorven
Acting
Judge of Appeal
Appearances
For the Appellant:
MA Albertus SC (with him A Njeza)
Instructed by:
State Attorney, Cape Town
State Attorney, Bloemfontein
For the
Respondents: M Bishop
Instructed by:
Legal Resources Centre, Cape Town
Webbers Attorneys, Bloemfontein
[1]
Minister of Home Affairs & others v Somali
Association of South Africa Eastern Cape (SASA EC) & another
[2015] ZASCA 35
;
2015 (3) SA 545
(SCA) para 2.
[2]
Refugees Act 130 of 1998
.
[3]
Section 21(1).
[4]
Section 22(1).
[5]
Refugees Act Regulations
, GN R366, GG 21075, 6
April 2000 as amended by GN R938, GG 21753, 15 September 2000.
[6]
Regulation 7(
b
).
[7]
Section 22(1).
[8]
Section 22(3).
[9]
Section 22(6)(
b
)
and (
c
)
respectively.
[10]
Section 23.
[11]
Section 24(3)(
a
).
[12]
Section 24(3)(
b
).
[13]
Section 24(3)(
c
).
[14]
Section 24(3)(
d
).
[15]
Sections 24(4)
and
25
.
[16]
Section 26.
[17]
There were applications of a different nature for
similar relief but for the purposes of simplicity, I shall refer to
judicial
review applications.
[18]
Natal Joint Municipal Pension Fund v Endumeni
Municipality
[2012] ZASCA 13
;
2012 (4)
SA 593
(SCA) para 18 (references omitted).
[19]
Because the asylum seekers in the present matter
all made use of the opportunities, I shall simply refer to the
internal remedies
having being exhausted and not that they had had
the opportunity to do so.
[20]
This provides:
‘
If the
Minister has withdrawn an asylum seeker permit in terms of
section
22
(6), he or she may, subject to
section 29
, cause the holder to be
arrested and detained pending the finalisation of the application
for asylum, in the manner and place
determined by him or her with
due regard to human dignity.’
Section 29
,
inter
alia, provides for review by a judge of the high court having
jurisdiction after the expiry of 30 days in detention.
[21]
Endumeni
para
18.
[22]
Minister of Home Affairs & others v Somali
Association of South Africa Eastern Cape
note
1, para 2.
[23]
Constitution of the Republic of South Africa,
1996.
[24]
This means non-return. The introduction to the
Text of the 1951 Convention Relating to the Status of Refugees Text
of the 1967
Protocol Relating to the Status of Refugees is to the
following effect:
‘
The
Convention is both a status and rights-based instrument and is
underpinned by a number of fundamental principles, most notably
non-discrimination, non-penalization and non-refoulement.’
http://www.unhcr.org/protection/basic/3b66c2aa10/convention-protocol-relating-status-refugees.html?query=Protocol%20relating%20to%20the%20status%20of%20refugees,%201967
at 5, accessed on 13 March 2017.
[25]
Immigration Act 13 of 2002
.
[26]
Section 3.
[27]
Promotion of Administrative Justice Act 3 of
2000
.
[28]
UNHCR
Handbook on
Procedures and Criteria for Determining Refugee Status under the
1951 Convention and the 1967 Protocol relating to
the Status of
Refugees
HCR/IP/4/Eng/REV.1 (revised,
2011) para 192 available at
http://www.unhcr.org/4d93528a9.pdf
accessed on 24 March 2017.
[29]
Muminov v Russia
[2008] ECHR 1683
para 101.
[30]
This reads: ‘When interpreting any
legislation, and when developing the common law or customary law,
every court, tribunal
or forum must promote the spirit, purport and
objects of the Bill of Rights.’
[31]
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others
[2004]
ZACC 15;
2004
(4) SA 490 (CC)
[2004] ZACC 15
; ;
2004
(7) BCLR 687
(CC) para 72.
[32]
Investigating Directorate: Serious Economic
Offences & others v Hyundai Motor Distributors (Pty) Ltd &
others; In re:
Hyundai Motor Distributors (Pty) Ltd & others v
Smit NO & others
[2000] ZACC 12
;
2001 (1) SA 545
(CC);
2000 (2) SACR 349
(CC);
2000 (10) BCLR 1079
(CC) paras 21-26.
[33]
Department of Land Affairs & others v
Goedgelegen Tropical Fruits (Pty) Ltd
[2007] ZACC 12
;
2007 (10) BCLR 1027
(CC);
2007 (6) SA 199
(CC)
para53. See also
Cool Ideas 1186 CC v
Hubbard & another
2014
(4) SA 474
(CC) para 28.
[34]
Bato Star
footnote 31, para 72.
[35]
Minister of Defence and Military Veterans v
Thomas
[2015] ZACC 26
;
2016 (1) SA 103
(CC); (2015) 36 ILJ 2751 (CC);
2015 (10) BCLR 1172
(CC) paras 38-39.
See also
South African Transport
Services
v
Olgar
and Another
1986
(2) SA 684 (A)
for a
pre-Constitution approach along similar lines.
[36]
Administrator, Transvaal & others v Traub
& others
[1989]
ZASCA 90
;
1989 (4) SA
731
(A);
[1989] 4 All SA 924
(A) at 758C-G.
[37]
Duncan v Minister of Environmental Affairs and
Tourism & another
[2009] ZASCA
168
;
2010 (6) SA 374
(SCA);
[2010] 2 All SA 462
(SCA) para 13;
Meyer
v Iscor Pension Fund
[2002] ZASCA 148
;
2003 (2) SA 715
(SCA);
[2003] 1 All SA 40
paras 27-28.
[38]
KwaZulu-Natal Joint Liaison Committee v MEC
for Education, KwaZulu-Natal & others
[2013]
ZACC 10
;
2013 (4) SA 262
(CC);
2013 (6) BCLR 615
(CC) footnote 7 to
para 31. See also
Premier, Mpumalanga,
and Another v Executive Committee, Association of State-Aided
Schools, Eastern Transvaal
[1998] ZACC
20
;
1999 (2) SA 91
;
1999 (2) BCLR 151
para 36;
Bel
Porto School Governing Body and others v Premier, Western Cape, and
another
[2002] ZACC 2
;
2002 (3) SA
265
;
2002 (9) BCLR 891
(CC) para 96.
[39]
KwaZulu-Natal Joint Liaison Committee
para 48-52.
[40]
National Director of Public Prosecutions v
Phillips & others
[2004] ZASCA
111
;
2002 (4) SA 60
(W) para 28. These were endorsed by this Court
in
South African Veterinary Council v
Szymanski
2003 (4) SA 42
(SCA)
para 19.
[41]
References omitted.
[42]
Wade and Forsyth
Administrative
Law
8 ed (2000) at 239.
[43]
South African Police Service v Public Servants
Association
[2006]
ZACC 18
;
2007 (3) SA 521
(CC); [2007] 5 BLLR 383 (CC)
para
16.
[44]
The reference is to the dictum of Chaskalson CJ
in
Van Rooyen and Others v The State
and Others (General Council of the Bar of South Africa
Intervening
)
[2002]
ZACC 8
;
2002 (5) SA 246
;
2002 (8) BCLR 810
paras 180-182.
[45]
Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Ltd & another
[2015] ZACC 22
;
2015 (5) SA 245
(CC) paras 46-47.
[46]
Trencon Construction
p
aragraphs 46-47. References omitted.
[47]
Biowatch Trust v Registrar, Genetic Resources
& others
[2009] ZACC 14; 2009 (6)
SA 232 (CC); 2009 (10) BCLR 1014 (CC).
[48]
See also
Affordable
Medicines Trust and Others v Minister of Health and Others
[2005]
ZACC 3
;
2006
(3) SA 247
(CC)
;
2005
(6) BCLR 529)
para 139.