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[2017] ZASCA 126
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Scalabrini Centre, Cape Town and Others v Minister of Home Affairs and Others (1107/2016) [2017] ZASCA 126; [2017] 4 All SA 686 (SCA); 2018 (4) SA 125 (SCA) (29 September 2017)
Links to summary
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1107/2016
In the matter
between:
SCALABRINI CENTRE, CAPE
TOWN
FIRST
APPELLANT
THE TRUSTEES FOR THE
TIME BEING OF THE
SCALABRINI CENTRE, CAPE
TOWN
SECOND APPELLANT
SOMALI ASSOCIATION FOR
SOUTH AFRICA
THIRD APPELLANT
NACIMO TAKOW
HUSSEIN
FOURTH APPELLANT
NELSON KASONGO
BAKAJIKA
FIFTH APPELLANT
DERICK
NDWALA
SIXTH
APPELLANT
NABUNANE REJINA
SEVENTH APPELLANT
YASIN HASSAN
SHEIKH
EIGHTH APPELLANT
and
THE MINISTER OF HOME
AFFAIRS
FIRST RESPONDENT
THE DIRECTOR GENERAL,
DEPARTMENT OF
HOME
AFFAIRS
SECOND RESPONDENT
CHIEF DIRECTOR, ASYLUM
SEEKER MANAGEMENT THIRD
RESPONDENT
THE STANDING COMMITTEE
FOR REFUGEE AFFAIRS FOURTH
RESPONDENT
THE MINISTER OF PUBLIC
WORKS
FIFTH RESPONDENT
Neutral citation:
Scalabrini
Centre, Cape Town v The Minister of Home Affairs
(1107/2016)
[2017] ZASCA 126
(29 September 2017)
Coram:
Cachalia,
Majiedt and Saldulker JJA and Lamont and Schippers AJJA
Heard:
4 Se
ptember
2017
Delivered:
29 September 2017
Summary:
Refugees Act 130 of
1998
: decision to close refugee reception office under
s 8(1)
:
challenged for want of rationality : decision-maker not taking into
account relevant considerations, not complying with the empowering
provision, acting with ulterior and improper purpose and making error
of law.
ORDER
On
appeal from
Western
Cape Division of the High Court, Cape Town (Dlodlo J sitting as court
of first instance):
1 The appeal
is upheld with costs, including those of two counsel.
2 The order of
the court a quo is set aside and substituted as follows:
‘
(a)
The decision of the second respondent, taken on or about 31 January
2014, to close the Cape Town Refugee Reception
Office is declared to
be unlawful and is reviewed and set aside.
(b)
The first to third respondents are directed to reopen and maintain a
fully functional refugee reception
office in or around the Cape Town
Metropolitan Municipality, by Friday 31 March 2018.
(c)
The second respondent, the Director-General of the Department of Home
Affairs, shall report in
writing to the appellants by 31 October 2017
and thereafter, on or before the last working day of each succeeding
month as to what
steps have been taken and what progress has been
made to ensure compliance with the aforesaid order.
(d)
The parties are granted leave to apply on the same papers,
supplemented insofar as they consider that
to be necessary, for
further relief.
(e)
The costs of the application shall be paid jointly and severally by
the first, second and third
respondents.’
JUDGMENT
Schippers
AJA (Cachalia,
Majiedt and
Saldulker JJA and Lamont
AJA
concurring):
[1]
The issue in this
appeal is whether the decision of the Director-General of the
Department of Home Affairs (the Department) taken
on 31 January 2014
to close the Cape Town Refugee Reception Office (the impugned
decision), in terms of the Refugees Act 130 of
1998 (the Act), was
unlawful and thus reviewable. The court a quo held that it was not.
It dismissed the appellants’ application
for an order reviewing
and setting aside the impugned decision and directing the first to
third respondents to reopen and maintain
a fully functional refugee
reception office in the Cape Town municipal area. The appeal is with
the leave of the court a quo.
Factual
background
[2]
The factual background
to this matter has been set out in some detail in the judgment of the
court a quo, and by Nugent JA in
Scalabrini
1
.
[1]
In summary, it is as follows. This is the second time that the
Director-General has decided to close the Cape Town Refugee Reception
Office. The first decision was taken in May 2012 when it was decided
that the Office would be closed to all newcomers with effect
from 30
June 2012. As at May 2011 there were six refugee reception offices in
the country: in Cape Town, Port Elizabeth, Durban,
Johannesburg,
Pretoria and Musina. When the impugned decision was made, the number
of refugee reception offices available to asylum
seekers was reduced
to three: at Musina, Pretoria and Durban.
[3]
The Cape Town Refugee
Reception Office has had a difficult history since it was established
in 2000. It was initially located at
Customs House on the Cape Town
Foreshore. Subsequently those premises proved to be unsuitable. It
became too small as the number
of asylum seekers increased, and there
were constant objections from the general public and nearby
businesses to the daily activities
of asylum seekers and vendors. The
Department was forced to find alternative premises.
[4]
In February 2008 the
Cape Town Refugee Reception Office was moved to Airport Industria.
Some ten months later, in December 2008,
neighbouring business owners
instituted proceedings against the respondents in the Western Cape
Division of the High Court for
an order that the Cape Town Refugee
Reception Office cease operations at the Airport Industria
premises.
[2]
They complained, inter alia, that the large numbers of asylum seekers
utilising the Refugee Reception Office were congregating
and sleeping
on the streets and sidewalks; that there were insufficient ablution
facilities resulting in unhygienic conditions;
and that illegal
vendors had set up their stalls on pavements which gave
rise to
disturbances and violence. The court found that the operation of the
Refugee Reception Office was a violation of the relevant
zoning
scheme regulations and an unlawful nuisance, and it was ordered to
cease operating from the Airport Industria premises within
three
months.
[5]
In October 2009 the
Cape Town Refugee Reception Office commenced operations at new
premises in Maitland. Similar problems to those
experienced at
Airport Industria arose and neighbouring business owners instituted
legal proceedings in the Western Cape Division
to close down the
Office. The court concluded that the operation of the Refugee
Reception Office was an actionable nuisance and
a contravention of
the relevant zoning scheme regulations.
[3]
The Department was interdicted from operating the Refugee Reception
Office at the Maitland premises. The interdict was suspended
for six
months to enable the Department to apply for the amendment of the
land use restrictions applicable to the property and
to take steps to
abate the nuisance. The Department did not take those steps as it was
not the owner of the property, and it embarked
on a process in
cooperation with the Department of Public Works (DPW), the State
Security Agency and the South African Police Service,
to procure
alternative premises in the Cape Town metropolitan area. The
Department says it was unable to obtain suitable premises.
[6]
On 8 June 2012 the
Director-General announced that the Cape Town Refugee Reception
Office would close permanently, and on 29 June
2012 it ceased
operations at the Maitland premises. Since then the Cape Town Refugee
Reception Office has been closed, except for
transitional
arrangements for existing asylum seekers. No new application for
asylum could be lodged or processed at that Office
since 29 June
2012.
[7]
On 19 June 2012 the
appellants sought an order reviewing and setting aside the decision
to close the Cape Town Refugee Reception
Office, in the Western Cape
Division. Rogers J held that the Director-General’s decision
was reviewable under the Promotion
of Administrative Justice Act 3 of
2000 (PAJA), and set it aside on the ground that the Standing
Committee on Refugee Affairs (the
Standing Committee) and interested
parties had not been consulted before the decision to close the
Refugee Reception Office had
been taken. The Department was ordered
to ensure that a fully functional refugee reception office was opened
within the Cape Town
metropolitan area by 1 July 2013.
[4]
The government respondents appealed to this Court.
[8]
On 27 September 2013
this Court dismissed the appeal, holding that the Director-General’s
failure to consult with organisations
that have experience and
special expertise in dealing with asylum seekers in Cape Town,
rendered the decision to close the Cape
Town Refugee Reception Office
procedurally irrational and unlawful.
[5]
However, this Court held that the decision to close the Office
constituted executive and not administrative action, and thus was
not
reviewable under PAJA.
[6]
The Western Cape Division's order that a fully functional refugee
reception office be opened within the Cape Town metropolitan
municipal area by 1 July 2013, was set aside. It was substituted with
an order granting the appellants leave to apply on the same
papers
for further relief, in the event that a decision as to the future of
the Cape Town Refugee Reception Office was not made
by 30 November
2013.
[9]
On 22 November 2013 the
Director-General issued an invitation to interested parties to attend
a meeting on 5 December 2013 on the
possible closure of the Cape Town
Refugee Reception Office; and to submit comments and proposals on the
following issues:
‘
1.1
the need for a fully-fledged refugee reception office (“RRO”)
in Cape Town, given
the fact that the CTRRO has been
de
facto
closed to new applicants since
the 30 June 2012;
1.2
the general undesirability of operating a RRO in the Cape Town
Metropolitan area given the
fact that the CTRRO has historically
generated various nuisance factors and the problems surrounding the
need to comply with zoning
regulations;
1.3
only a small number of new asylum seekers enter annually Cape Town
through its ports of
entry (Cape Town Harbour and Cape Town
International Airport);
1.4
the bulk of new asylum seekers enter through the northern borders of
South Africa which could
make it more convenient and safer for them
to be processed and documented at RROs situated closer to their
points of entry;
1.5
whether there are viable alternatives to operating a fully-fledged
RRO in the Cape Town
Metropolitan area given the past difficulties
faced by the Departments of Home Affairs and Public Works in
procuring suitable premises.’
[10]
Written submissions
were made by, amongst others, the United Nations High Commission for
Refugees (UNHCR), the Legal Resources Centre
(LRC), Lawyers for Human
Rights (LHR) and the UCT Refugees Rights Unit.
[11]
A wide range of refugee
advocacy organisations were represented at the meeting of 5 December
2013, including the first and second
appellants, the UNHCR, LHR, the
LRC, and the UCT Refugees Rights Unit. Not one supported the closure
of the Cape Town Refugee Reception
Office.
[12]
On 31 January 2014 the
Director-General announced his decision to close the Cape Town
Refugee Reception Office permanently. The
effect of this decision was
that new applicants could no longer apply for asylum in Cape Town:
they had to do so in Musina, Pretoria
or Durban. Secondly, existing
applicants for asylum who had applied at other refugee reception
offices were now precluded from
having their files transferred to the
Cape Town Temporary Refugee Facility at Customs House, unless they
could show that their
circumstances were ‘exceptional’.
The reasons
for the impugned decision
[13]
On 7 February 2014 the
Director-General gave written reasons for the impugned decision. They
may be summarised as follows. The Crown
Mines and Port Elizabeth
Refugee Reception Offices had also been closed. The proposals by
interested parties that Customs House
should be used as a fully
functional refugee reception office, that satellite offices should be
established or that a refugee reception
office should be established
outside of the Cape Town metropolitan area, posed legal and practical
difficulties.
[14]
At Customs House, the
Cape Town Temporary Refugee Facility provided limited services to
asylum seekers. The Department had been
threatened with litigation
similar to that brought against it previously. The space at Customs
House was inadequate: it could not
accommodate large numbers of
people or disabled clients needing the services of a fully functional
refugee reception office; and
there were occupational health and
safety, and security concerns. It is not ‘legally permissible’
to establish satellite
offices under the Act. This, according to the
Director-General, ‘is clear from the judgment of Rogers J’.
[7]
The grant of s 22 permits (which enable asylum seekers to remain and
work in the country pending determination of their applications)
and
the determination of status at different locations would lead to
logistical difficulties, and require the DPW to identify suitable
premises, which would be a time-consuming process.
[15]
As to the possible
location of the Refugee Reception Office outside the Cape Town
metropolitan area, the Department was largely
dependent on the DPW to
procure suitable premises in a lengthy process. This would probably
reduce but not eliminate the risk of
future litigation, and was not a
sufficiently compelling reason to reopen a fully functional refugee
reception office. Regarding
the operation of the office within the
Cape Town metropolitan area, the Department faced expensive
litigation involving nuisance
and breaches of zoning regulations. The
large number of applicants gave rise to logistical difficulties and
would require substantial
additional resources. The Department,
together with the DPW, unsuccessfully conducted extensive searches
for alternative premises.
[16]
An audit of files prior
to the decision of 30 May 2012 to close the refugee reception office,
revealed that the majority of persons
who had applied for asylum were
economic migrants who came to Cape Town in search of work. The
government was entitled to take
steps to control the asylum
application process and access to refugee reception offices. The vast
majority of asylum seekers who
utilised the services of the Cape Town
Refugee Reception Office, entered the country through its northern
borders. Few of them
entered South Africa through ports of entry in
Cape Town.
[17]
The three remaining
Refugee Reception Offices at Musina, Pretoria and Durban were
sufficient to serve the needs of asylum seekers
and refugees.
Additional resources would be deployed to meet any increased flow of
asylum seekers at those offices. The number
of asylum seekers had
decreased over the last few years. The measures to wind down services
at the Cape Town Temporary Refugee
Facility were sufficient to serve
the needs of existing asylum seekers and refugees.
The
relevant statutory provisions
[18]
The long title of the
Act sets out its main purposes as follows:
‘
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.’
[19]
Section 6 requires that
the Act be interpreted and applied with reference to international
instruments relating to the status and
rights of refugees, which
includes the United Nations Convention and Protocol Relating to the
Status of Refugees, 1951 (the Convention).
Article 26 of the
Convention provides that each contracting State shall grant to
refugees lawfully in its territory, the right
to choose their place
of residence and move freely within its territory.
[20]
Section 8(1) of the Act
reads:
‘
The
Director-General may establish as many Refugee Reception Offices in
the Republic as he or she, after consultation with the Standing
Committee, regards as necessary for the purposes of this Act.’
[21]
Section 21(1) provides
that an application for asylum must be made in person to a refugee
reception officer at any refugee reception
office. In terms of
s 21(2), the officer must see to it that the application form is
properly completed and where necessary
assist the applicant in that
regard. The officer may conduct an enquiry in order to verify the
information in the application and
is required to submit the
application to a refugee status determination officer.
[22]
Section 22(1) requires
the refugee reception officer to issue to the applicant an asylum
seeker permit which allows him or her to
sojourn in the country
temporarily, pending the outcome of an application for asylum in
terms of s 21(1). The s 22 permit enables
the asylum seeker to live
and work in the country, pending the determination of his or her
application for asylum.
[23]
An application for
asylum must be considered by a refugee status determination officer,
who may request any information or clarification
from an applicant (s
24(1)(
a
));
must ensure that the applicant fully understands the procedures, his
or her rights and responsibilities and the evidence presented
(s 24(2)); and at the conclusion of the hearing, must decide
whether to grant or reject the application for asylum (s 23(3)).
If
an application is rejected, written reasons must be furnished to the
applicant, and the record of proceedings and a copy of
those reasons
must be submitted to the Standing Committee (s 23(4)).
[24]
The Standing Committee
must review any decision taken by a refugee status determination
officer (s 25(1)), and may request the applicant
to appear before it
and provide additional information (s 25(2)(
b
)).
The Standing Committee may confirm or set aside a decision rejecting
an application for asylum found to be manifestly unfounded,
abusive
or fraudulent (s 25(3)(a)).
[25]
Any asylum seeker may
lodge an appeal with the Refugee Appeal Board if a refugee status
determination officer has rejected an application
for asylum because
it is unfounded (s 26(1)). In terms of s 26(2), the Board may
confirm, set aside or substitute any decision
taken by a refugee
status determination officer under s 24(3); and may request the
applicant to appear before it and provide
additional information.
[26]
The above provisions of
the Act point to the need to establish and maintain a functional
refugee reception office. They also show
that an asylum seeker must
repeatedly report to the refugee reception office to exercise his or
her rights under the Act. Indeed,
it is common ground that an asylum
seeker must report to a refugee reception office to obtain and renew
a s 22 permit; to be interviewed
by a refugee status determination
officer; to collect the decision on his or her application for
refugee status; to lodge an appeal
to the Refugee Appeal Board; and
to attend the hearing and collect the decision of the Board.
The
standard of review
[27]
The appellants accept,
as they must, that the question whether a refugee reception office is
necessary for achieving the purposes
of the Act is quintessentially
one of policy.
[8]
It concerns the manner in which the State determines how it will
discharge its international law obligations contained in the Act.
The
number and locality of refugee reception offices involve an
assessment of the need for such facilities; the number of refugee
reception officers, refugee status determination officers and other
staff required; and issues relating to administrative effectiveness
and efficiency, budgetary constraints, and policies of the
Department.
[9]
[28]
Thus, a decision to
close a refugee reception office in terms of s 8(1) of the Act
constitutes executive rather than administrative
action, and is not
subject to PAJA.
[10]
[29]
In exercising his s
8(1) power, the Director-General is nevertheless constrained by the
constitutional principle of legality, namely
that ‘the exercise
of public power is only legitimate where lawful'.
[11]
Consequently, the impugned decision falls to be reviewed and set
aside on the basis of the legality principle if it is not rationally
related to the purpose for which the power was given;
[12]
if the decision-maker failed to act in accordance with the empowering
provision;
[13]
if the decision-maker’s failure to consider a relevant factor
‘had an impact on the rationality of the entire process;
[14]
or if the decision breaches the Constitution.
[15]
Review
grounds
[30]
There are two main
grounds of review. The first is that the impugned decision was
irrational and unlawful because it did not comply
with
s 8(1)
of
the
Refugees Act, the
decision-maker ignored relevant considerations
and made a material error of law. The second is that the decision was
unconstitutional
because it violates fundamental rights of those
affected and the respondents’ constitutional obligations
towards them.
[31]
As to rationality, the
first question is whether the Cape Town Refugee Reception Office was
necessary when the Director-General
decided to close it. Section 8(1)
of the Act requires the Director-General to establish as many refugee
reception offices as are
‘necessary for the purposes of [the]
Act’. This implies the power to disestablish a refugee
reception office, as long
as the Director-General acts rationally in
determining that the relevant office is no longer necessary for
purposes of the Act.
[32]
Rationality concerns
the relationship between the exercise of a power and the purpose for
which the power was granted. The Constitutional
Court in
Pharmaceutical
Manufacturers
put
it thus:
‘
It is a
requirement of the rule of law that the exercise of public power by
the Executive and other functionaries should not be
arbitrary.
Decisions must be rationally related to the purpose for which the
power was given, otherwise they are in effect arbitrary
and
inconsistent with this requirement. It follows that in order to pass
constitutional scrutiny the exercise of public power by
the Executive
and other functionaries must, at least, comply with this requirement.
If it does not, it falls short of the standards
demanded by our
Constitution for such action.’
[16]
[33]
The main purposes of
the Act, as is evidenced by its long title, are to give effect to
international legal instruments, principles
and standards relating to
refugees; and to provide for the reception of asylum seekers in this
country. Article 26 of the Convention
enjoins a contracting State to
grant refugees the right to choose their place of residence and move
freely within its territory.
A reading of the Act reveals a clear,
general orientation towards the protection of the rights of asylum
seekers and refugees and
their integration into South African
society.
[34]
Thus, in
Somali
Association
, this
Court said that the Act represents
'[A] significant
break with a past characterised by measures designed to control the
entry and presence of what were described as
‘aliens’ in
this country and proclaims instead a more progressive commitment to
refugee protection in accordance with
international standards.’
[17]
[35]
So, the main objects of
the Act are to provide for the reception of asylum seekers into South
Africa; and once they are in this
country, to ensure the immediate
protection of their rights and the determination of their status in
accordance with international
standards. The conferral of asylum
seeker status has a targeted aim: it regularises the status of
applicants pending the determination
of their applications, and
ensures their freedom and security in the interim. The Act is also
aimed at facilitating the integration
of refugees - those who have
been granted asylum - into South African society. The narrower
purpose of the power to establish refugee
reception offices is simply
to provide the facility at which applicants for asylum have their
status determined, and are given
the right to live, work and function
freely, pending that determination.
[36]
Whether a decision to
close a refugee reception office is rationally related to these
purposes, this Court has held, ‘is a
factual enquiry blended
with a measure of judgment'.
[18]
[37]
To begin with, on the
facts, the closure of the Crown Mines and Port Elizabeth Refugee
Reception Offices could never be put up as
a reason for closing the
Cape Town Refugee Reception Office. Rationality entails that the
impugned decision is founded on reason.
[19]
This ‘reason’ is inexplicable and irrational: in December
2011 the decision to close down the Crown Mines Refugee Reception
Office was reviewed and set aside by the North Gauteng High Court and
remitted to the Director-General for reconsideration. The
Director-General has still not complied with that order. Similarly,
in mid-2012 the Eastern Cape High Court reviewed and set aside
the
decision to close down the Port Elizabeth Refugee Reception Office.
An appeal to this Court was dismissed with costs, and in
March 2015
the first to third respondents were ordered to restore the refugee
reception services to the Port Elizabeth Office by
1 July 2015. A
further appeal to the Constitutional Court was also dismissed.
[20]
The respondents have not complied with this order either. I revert to
these aspects below.
[38]
The facts also show
that the Cape Town Refugee Reception Office was established in 2000,
not only because it was regarded as necessary
for purposes of the
Act, but also because its location in Cape Town was necessary, as
contemplated in s 8(1). Since then, no other
refugee reception office
has been established in or near Cape Town.
[39]
Prior to its closure,
the Cape Town Refugee Reception Office was the second busiest in the
country, after Pretoria. This too, is
common ground. The Department’s
own statistics show that in the first four months of 2012, there were
5 946 new applications
for asylum at the Cape Town Refugee
Reception Office - about 1 500 per month. In the same period,
there were 52 666 applications
for extensions of s 22 permits. In his
reasons for the impugned decision, the Director-General himself says
that the facilities
at Customs House are inadequate ‘to service
the number of clients who would need to be serviced if a fully
functional RRO
were to be opened’ in Cape Town. This, of
course, shows that a refugee reception office is necessary in Cape
Town and why,
the Director-General says, it was necessary to move
that office to Airport Industria in Cape Town. And if a refugee
reception office
is necessary, it can never be a rational response to
close down the existing office, and then do nothing to find
alternative premises.
[40]
The need for the Cape
Town Refugee Reception Office was a central theme running through all
the written and oral representations
by interested parties. They also
addressed the inadequacy of the offices at Musina, Pretoria and
Durban, and the Department’s
inertia in securing alternative
premises.
[41]
In its written
submissions, the LRC stated that despite its closure, new asylum
seekers continued to approach the Cape Town Refugee
Reception Office
(the temporary facility at Customs House) to obtain s 22 permits.
Conservatively, and only since July 2012, there
were well over 4000
asylum seekers in the Western Cape and many more would have arrived,
had it not become known that the Cape
Town Refugee Reception Office
had been closed to new applicants. The LRC also said that the
Department’s own numbers show
that the Cape Town area attracted
thousands of asylum seekers and refugees, where essential family and
support networks have been
created. New asylum seekers depend on
these support structures to survive and live with dignity while they
await the determination
of their applications. The majority of asylum
applications take years to process at the initial stage of
decision-making. For example,
there are scores of Angolan asylum
seekers who applied before 2002 and whose cases had still not been
adjudicated by 2013. There
are further delays when applications are
referred to the Standing Committee or appeals heard by the Refugee
Appeal Board.
[42]
As to the location of a
refugee reception office outside Cape Town, the LRC in its written
and oral submissions stated that there
was no reason why a refugee
reception office could not be established a short distance beyond the
city boundary in an area accessible
by public transport. The
LRC said that people did not need to come to the centre of Cape Town,
the location of an office
in Stellenbosch, Worcester or Saldanha Bay
would resolve many difficulties relating to the need for a refugee
reception office.
[43]
LHR, in its written and
oral submissions, stated that closing the Cape Town Refugee Reception
Office and forcing asylum seekers
to utilise offices at the northern
border of the country would infringe the rights of a vulnerable
community who would be forced
to travel thousands of kilometres,
repeatedly, to have their applications for asylum processed to
finality. The costs of and practical
difficulties in travelling to
Durban, Pretoria and Musina Refugee Reception Offices are
substantial, and would create an untenable
burden on many asylum
seekers and refugees, most of whom are extremely poor. There is no
direct bus line to Musina and it is at
least an eight-hour drive by
taxi from Pretoria to Musina. For a large family this is very
expensive as all dependents must be
present when s 22 permits are
renewed. Travelling lengthy distances also poses dangers to the
elderly, the infirm, small children
and unaccompanied minors.
Inevitably, many asylum seekers would not be able to obtain or renew
their permits on time and would
then be at risk of arrest and
detention if intercepted by the police or immigration enforcement
officials.
[44]
There is little or no
accommodation in Musina. Often the Department is unable to renew
permits on time and the applicants and their
dependents are forced to
remain in Musina until the following week when their nationality is
called again. In that event, some
asylum seekers and their families
might stay in local shelters while others are forced to sleep in the
open. They also risk losing
their jobs. Further, Musina is considered
very dangerous for newly arrived asylum seekers who are subjected to
crime and violence,
due to their particularly vulnerable situation.
On top of all this, the management at Musina has refused to transfer
any files
to another refugee reception office. This has forced asylum
seekers to either remain in that area, or live in another part of the
country and travel back and forth to Musina.
[45]
LHR also stated that
the closure of the Cape Town Refugee Reception Office not only
prevented new applicants from applying for asylum
and supporting
themselves during the process, but also had a knock-on effect on all
other refugee reception offices. They are insufficient
to deal with
the workload, there is a lack of capacity, files get lost and there
seems to be no communication between those offices,
the Standing
Committee and the Refugee Appeal Board. In the answering affidavit,
the Director-General says that if there are backlogs
at the remaining
refugee reception offices, additional resources and measures would be
deployed to meet any increased flow of asylum
seekers. He also says
that the remaining refugee reception offices are sufficient for the
purposes of the Act.
[46]
The remaining offices
however are inadequate. The Director-General seems to have forgotten
what he said under oath in
Somali
Association
:
[21]
‘
The inadequacy
of staff in the busier RROs, the long queues that result in
applications not being attended to on the day that an
applicant
presents him or herself at an RRO, the high number of files that the
SCRA returns to the RSDO due to the incompleteness
of the file or
interview with the RSDO - all of these are matters that have been
regular items of discussion between the Deputy
Minister, the members
of [the] SCRA and me.’
[47]
In its oral
submissions, the representative of the UCT Refugee Rights Clinic said
that the Department was tearing families apart:
spouses and children
of asylum seekers (who come to this country after the other spouse
has initially been documented and is living
in Cape Town) are forced
to utilise the refugee reception office, for example, at Musina. This
results in a single family having
two refugee files: one in Cape Town
and the other in Musina. This, when the office at Musina cannot
transfer their files because
there is no refugee reception office in
Cape Town. Families are then forced to make repeated trips to the
refugee reception office
where their files are kept.
[48]
The written submissions
by the UNHCR state:
‘
The RROs
therefore serve as the main interface between the refugees and their
host government. It has been submitted that the purpose
for
establishing the RROs in the urban centres was to serve asylum
seekers and refugees at the urban locations where they reside
thus
lessening the burden to travel to a distant location to access the
services.
. . .
The
Refugees Act accords
refugees basic rights including freedom of movement, right to work,
access to education, health and other basic services, the choice
of a
residence for many of the refugees and asylum seekers is often linked
to access to basic services, access to livelihood opportunities
and
established social networks. Many asylum seekers and refugees reside
in the main urban centres where these opportunities are
more easily
accessible. While UNHCR cannot confirm the actual statistics, it is a
known fact that Cape Town and the Western Cape
Province in general
attract a significant number of asylum seekers and refugees being a
capital city and commercial hub. The closure
of the CTRRO has
therefore become a source of anxiety and distress amongst the
refugees and asylum seekers.’
[49]
The Director-General’s
answer to all of this can be summed up in the following statement in
his affidavit:
‘
[T]he reasons
furnished by me for my decision, explicitly, alternatively,
implicitly, state that the position regarding the CTRRO
had changed
since its establishment and an RRO in Cape Town, was no longer
necessary for the purposes of the
Refugees Act.’
[50
]
But that is not so.
What is conspicuously absent from the Director General’s
reasons is any conclusion that the Cape Town
Refugee Reception Office
has become redundant or no longer necessary for purposes of the Act.
Still less does he provide reasons
for such a conclusion. In the
light of what is stated above, the omission is hardly surprising. The
facts point precisely the other
way. And those facts, which relate
directly to the level of demand and the need for the Cape Town
Refugee Reception Office, both
before and after its closure on 30
June 2012, are highly relevant considerations.
[51]
As the Constitutional
Court has explained, a failure to take into account relevant
considerations in the process of making a decision
can render it
irrational where: (1) the factors ignored are relevant; (2) the
failure to consider the material concerned is rationally
related to
the purpose for which the power was conferred; and; (3) ignoring
relevant facts is of a kind that colours the entire
process with
irrationality and thus renders the final decision irrational.
[22]
[52]
This is such a case.
The Director-General ignored relevant considerations, rendering his
decision irrational. He also failed to
properly consider whether the
Cape Town Refugee Reception Office was necessary for the purposes of
the Act as contemplated in s
8(1), and thus failed to comply with the
empowering provision.
[53]
The remaining reasons
for the impugned decision likewise do not withstand scrutiny. The
Director-General concedes that ‘the
location of RROs,
particularly their proximity to places of work and existing asylum
seeker communities, are relevant considerations’.
However, he
denies that ‘it is necessary or essential for a RRO to be
present in Cape Town or indeed the Western Cape’.
He also
concedes that the closure of the Cape Town Refugee Reception Office
will result in an increase in the number of applicants
at the
remaining offices, but says that the overall number of asylum seekers
has significantly decreased over the past few years
and the
turnaround time in determining status at the extant refugee reception
offices has substantially improved.
[54]
The facts outlined
above show that a refugee reception office continues to be necessary
in Cape Town. As regards the decrease in
the number of asylum seekers
and the alleged improved efficiency in dealing with asylum
applications, the Department overlooks
the fact that according to its
own records as at May 2015, there was a backlog of some 100 000
files which had not yet been
decided by a refugee status
determination officer; and a backlog of more than 100 000 cases which
had not been decided by the Refugee
Appeal Board. Save for a bald
allegation that they are being addressed, the answering affidavit is
silent on any progress made
with these backlogs or whether they have
increased since May 2015. Apart from this, the alleged improved
efficiency is questionable.
In its oral representations the UCT
Refugee Rights Clinic stated that it was dealing with asylum seekers
who had been in Cape Town
for 8-12 years and had their permits
extended 16 times.
[55]
Then there is the
Department’s failure to even consider alternative premises
whether in or outside of Cape Town since March
2011. On this score
the answering affidavit contains the most perfunctory assertions. It
states that after the
Voortrekker
Road
case in 2010,
a task team of the Department and the DPW inspected and assessed ten
buildings, of which three were identified as
provisionally complying
with the relevant criteria to house the refugee reception office. One
of these buildings was chosen but
there were three objections to its
use as a refugee reception office. Nothing is said about the other
two buildings. Thereafter
the Department issued a public invitation
to tender to accommodate the Cape Town Refugee Reception Office. In
March 2011 it received
ten proposals from various businesses and
landlords. The Director-General says that none of the proposals
complied with the relevant
criteria, but no details are given. Since
March 2011 the Department has done nothing to find suitable premises.
[56]
The Director-General
cannot credibly contend that the difficulty of obtaining premises is
a relevant consideration and then fail
to investigate whether any
premises might be available. This is demonstrated by the Deputy
Director-General’s explanation
to interested parties at the
meeting on 5 December 2013, that the Department took no steps to look
for premises because it was
‘awaiting the outcome of court
processes’, but now tells the court that there cannot be a
refugee reception office
in Cape Town because there are no suitable
premises.
[57]
This brings me to the
failure to consider satellite offices. During the consultation
process, interested parties specifically proposed
that the
Director-General consider locating the Cape Town Refugee Reception
Office at numerous satellite offices. This was likely
to reduce the
nuisance and disturbance complaints while the Department looked for
premises. Indeed, as the LRC pointed out, the
Department itself
suggested satellite offices in previous court proceedings.
[58]
The Director-General
however reasoned that satellite offices were not permissible under
the Act, which he said was clear from the
judgment in
Scalabrini
(WCC)
. The
Director-General could hardly be more mistaken. The court said
exactly the opposite. It held:
‘
The DHA might
choose to operate from several locations within a city. These
locations could properly be regarded as part of the
single RRO in
that city.’
[23]
[59]
This Court has said
that in order to be rational, a decision must be based on accurate
findings of fact and a correct application
of the law.
[24]
The Director-General wrongly took the position that satellite offices
were impermissible under the Act, and thus made an error
of law.
[60]
I turn now to consider
whether the impugned decision should be set aside because it is
tainted by an ulterior purpose. It is a settled
principle that a
decision-maker who uses a power given by statute for a purpose other
than that for which it has been given, acts
contrary to the law.
[25]
This Court has said that acting with an ulterior purpose has been
subsumed under the principle of legality.
[26]
[61]
One of the reasons for
closing the Cape Town Refugee Reception Office was that the
government is entitled to control the asylum
application process
because the legislative framework and refugee services were being
abused by economic migrants: about 77% of
applications for asylum to
the Cape Town Office were rejected as unfounded or manifestly
unfounded. The Director-General acknowledged
that control of the
asylum process would result in hardship to some 23% of genuine asylum
seekers, but he says, ‘this hardship
must be considered in
light of Government’s legitimate need to regulate the asylum
application process and access to RROs'.
[62]
The Director-General
plainly exercised the s 8(1) power for a purpose contrary to that for
which it has been given. The touchstone
for the exercise of the power
to establish or disestablish a refugee reception office is whether it
is necessary for purposes of
the Act. First, the disestablishment of
the Cape Town Refugee Reception Office - which was and is necessary -
in order ‘to
restrict access to RROs in urban areas’
constitutes the exercise of a power for an impermissible purpose. In
so doing the
Director-General misconstrued the s 8(1) power and for
this reason also, his decision is reviewable.
[27]
Second, the denial of access to a refugee reception office to 23% of
genuine asylum seekers (and consequently, denying them economic
opportunities in Cape Town), is not only the exercise of a power for
an ulterior purpose, but simply arbitrary.
[28]
And third, the Director-General cannot cut across the provisions of
the Act relating to the determination of refugee status, and
restrict
benefits which the lawgiver has conferred on asylum seekers, by
closing the Cape Town Office. Regardless of the merits
of their
application, all asylum seekers are entitled to a s 22 permit which
entitles them to live, work, study and receive public
healthcare in
this country, while their claim for refugee status is being
determined. This is subject only to the power of the
Standing
Committee to set conditions relating to study or work of asylum
seekers.
[29]
No such conditions have been set in this case.
[63]
The reason that very
few asylum seekers enter South Africa in Cape Town rather than
through the northern borders of the country,
which, the
Director-General says, ‘militates against reopening/maintaining
a fully functional RRO in Cape Town’, is
likewise
unsustainable. It is inconsistent with the statutory scheme.
Section
23(1)
of the
Immigration Act 13 of 2002
expressly acknowledges that a
refugee reception office may not be located at a port of entry. It
authorises the Director-General
to issue an asylum transit visa to
asylum seekers at a port of entry, to enable them to report to the
nearest refugee reception
office within five days.
[30]
The statutory scheme envisages that even those without transit visas
might find their way to refugee reception offices which are
not
located at the border. And, as was held in
Scalabrini
(WCC)
, ports of
entry are not even the most likely place where asylum seekers would
need the facilities of a refugee reception office.
The borders are
not where work opportunities, accommodation and public facilities
exist at sufficient scale.
[31]
[64]
For these reasons also,
the impugned decision is irrational and falls to be set aside.
[65]
By reason of the
conclusion to which I have come, it is unnecessary to deal with the
review ground that the decision is unconstitutional.
Remedy
[66]
The answering affidavit
states that the decision to reopen a refugee reception office is
polycentric in that it involves the Department,
the DPW and the
Treasury, and requires the acquisition of property and the allocation
of public resources. Then it is said that
the decision lies within
the domain of the executive and that the court does not have all the
relevant information to order that
the refugee reception office be
reopened.
[67
It is true that courts
should afford appropriate deference to executive and administrative
decisions, which involves a judicial
willingness to appreciate the
legitimate and constitutionally-ordained province of administrative
(and executive) agencies.
[32]
However, judicial deference within the doctrine of separation of
powers, must also be understood in the light of the powers vested
in
the courts by the Constitution: courts are responsible for ensuring
that unconstitutional conduct is declared invalid and that
constitutionally mandated and effective remedies are provided for
violations of the Constitution.
[33]
[68]
In my view, this case
does not give rise to any constitutional tension between the
different arms of government. Neither does it
involve any intrusion
into the domain of the executive. As was the position in
Somali
Association
,
[34]
this case is not about compelling the Director-General to establish a
refugee reception office where none has existed before. Instead,
an
order directing the first to third respondents to reopen and maintain
the Cape Town Refugee Reception Office is merely the consequence
of
setting aside an unlawful decision to close it.
[69]
At the close of
argument, the respondents were requested to advise this Court in
writing whether a fully-functional refugee reception
office in or
around the Cape Town metropolitan area could be reopened within a
period of six months, if such an order were to be
granted. The
respondents’ reply is unhelpful. They contend that it is
impossible to reopen the refugee reception office for
the following
reasons. The Department previously experienced difficulties in
attempting to secure premises. It has taken time to
secure a site and
obtain approval from the Treasury for the establishment of a refugee
reception office in Lebombo, Mpumalanga.
Substantial additional
resources are required and the government is currently experiencing
funding pressures.
[70]
These contentions are
no different from those advanced in the answering papers, save for
the one relating to funding pressures which
is not explained. They
have no merit. The alleged difficulties in obtaining premises and the
fact that the respondents did nothing
to find alternative premises
since March 2011, have been dealt with above. Apart from the
Director-General’s say-so, there
is not a shred of evidence to
show what additional resources are required and why. As to the
alleged funding pressures, no such
case has been made out in the
answering affidavit. The establishment of a refugee reception office
at Lebombo, Mpumalanga, cannot
be relevant in the light of the
Director-General’s statement in the answering affidavit. He
said:
‘
Because of the
uncertainty as to when exactly the RRO at Lebombo would be
established, I did not consider that this was a factor
that I should
take into account and accordingly left it out of consideration.’
[71]
In my opinion, given
that the impugned decision is substantively irrational and unlawful,
the only effective remedy is an order
directing the first to third
respondents to maintain a fully functional refugee reception office
in or around Cape Town for the
following reasons. First, asylum
seekers and refugees have been prejudiced by the closure of the Cape
Town Refugee Reception Office
since June 2012 - more than five years.
Second, the impugned decision is substantively irrational and
unlawful, as opposed to
Scalabrini
1
where the
decision was procedurally irrational. Third, an order remitting the
impugned decision to the Director-General for reconsideration
is
likely to be ignored, as happened in the case of the Crown Mines
Refugee Reception Office, where, six years later, there has
been no
compliance with the order to reconsider the decision to close that
Office. Finally, the order is identical to that granted
in
Somali
Association
, save
that the respondents have been given more time to reopen the Cape
Town Refugee Reception Office, and the office may be located
outside
of Cape Town in an area accessible by public transport. This should
go a long way to reducing any complaints relating to
nuisance or
violations of zoning regulations, as the Director-General himself has
recognised.
[72]
We were informed from
the bar that the order in
Somali
Association
, issued
in March 2015, has also not been implemented. Once again, it is
necessary to say that the State should lead by example
and be a model
of compliance. In
Somali
Association
,
[35]
this Court said that it is a most dangerous thing for a State
department and senior officials in its employ to wilfully ignore
an
order of court. These warnings, it seems, have fallen on deaf ears.
The warning sounded by the Constitutional Court in
Economic
Freedom Fighters
,
[36]
bears repetition:
‘
One of the
crucial elements of our constitutional vision is to make a decisive
break from the unchecked abuse of state power and
resources that was
virtually institutionalised during the apartheid era. To achieve this
goal we adopted accountability, the rule
of law and the supremacy of
the Constitution as values of our constitutional democracy. For this
reason public-office bearers ignore
their constitutional obligations
at their peril . . . .’
[73]
The following order is
made:
1 The appeal
is upheld with costs, including those of two counsel.
2 The order of
the court a quo is set aside and substituted as follows:
‘
(a)
The decision of the second respondent, taken on or about 31 January
2014, to close the Cape Town Refugee Reception
Office is declared to
be unlawful and is reviewed and set aside.
(b)
The first to third respondents are directed to reopen and maintain a
fully functional refugee reception
office in or around the Cape Town
Metropolitan Municipality, by Friday 31 March 2018.
(c)
The second respondent, the Director-General of the Department of Home
Affairs, shall report in
writing to the appellants by 31
October 2017 and thereafter, on or before the last working day of
each succeeding month as
to what steps have been taken and what
progress has been made to ensure compliance with the aforesaid order.
(d)
The parties are granted leave to apply on the same papers,
supplemented insofar as they consider that
to be necessary, for
further relief.
(e)
The costs of the application shall be paid jointly and severally by
the first, second and third
respondents.’
_________________
A
Schippers
Acting Judge of Appeal
Appearances
For Appellants:
S Budlender (with
N Mayosi)
Instructed
by:
Legal
Resources Centre, Cape Town
Webbers, Bloemfontein
For
Respondent:
MA Albertus SC (with G
R Papier and G G M Quixley)
Instructed by:
State Attorney, Cape Town
State Attorney, Bloemfontein
[1]
Minister of Home Affairs & others v Scalabrini Centre, Cape
Town & others
[Scalabrini 1]
[2013] ZASCA 134
;
2013
(6) SA 421
(SCA) paras 5-31 (hereinafter referred to as
Scalabrini
1
).
[2]
Intercape Ferreira Mainliner (Pty) Ltd & others v Minister of
Home Affairs & others
2010 (5) SA 367 (WCC).
[3]
410 Voortrekker Road Property Holdings CC v Minister of Home
Affairs & others
[2010] 4 All SA 414
(WCC).
[4]
Scalabrini Centre & others v Minister of Home Affairs &
others
2013 (3) SA 531
(WCC) para 122 (hereinafter referred to
as
Scalabrini (WCC
)).
[5]
Scalabrini
1
fn 1 paras 70-73.
[6]
Scalabrini 1
fn 1paras 57-58 and 97-98.
[7]
Scalabrini (WCC)
fn 4.
[8]
The appellants reserved the right to argue in any further appeal,
should it become necessary, that the impugned decision constituted
administrative action under PAJA. Nothing however turns on this.
[9]
Scalabrini
1
fn 1 paras 58 and 97-98.
[10]
Scalabrini 1
fn
1 para 58;
Minister of Home Affairs & others v Somali
Association of South Africa & another
[2015] ZASCA 35
;
2015
(3) SA 545
(SCA) para 14.
[11]
Fedsure Life Assurance Ltd & others v Greater
Johannesburg Transitional Metropolitan Council & others
[1998] ZACC 17
;
1999
(1) SA 374
(CC) para 59.
[12]
Pharmaceutical Manufacturers Association of South Africa &
another: In Re Ex Parte President of the Republic of South Africa
&
others
[2000] ZACC 1
;
2000 (2) SA 674
(CC) paras 85 and 90.
[13]
National Director of Public Prosecutions &
others v Freedom Under Law
[2014]
ZASCA 58
;
2014 (4) SA 298
(SCA) para 29.
[14]
Democratic Alliance v President of the Republic of South Africa &
others
[2012] ZACC 24
;
2013 (1) SA 248
(CC) para 39.
[15]
President of the Republic of South Africa & others v South
African Rugby Football Union & others
2000 (1) SA 1
(CC)
paras 132 and 148.
[16]
Pharmaceutical Manufacturers
fn 12 para 85.
[17]
Somali Association
fn 10 para 2.
[18]
Scalabrini 1
fn 1 para 66.
[19]
Scalabrini 1
fn 1 para 65.
[20]
Somali Association
fn 10 para 40.
[21]
Somali Association
fn 10 para 25.
[22]
Democratic Alliance
fn 14 para 39.
[23]
Scalabrini (WCC)
fn 4 para 43.
[24]
Chairman, State Tender Board v Digital Voice Processing (Pty)
Ltd; Chairman, State Tender Board v Sneller Digital (Pty) Ltd
[2011] ZASCA 202
;
2012 (2) SA 16
(SCA) para 40.
[25]
Van Eck NO and Van Rensburg NO v Etna Stores
1947 (2) SA 984
(A) at 998.
[26]
Gauteng Gambling Board & another v MEC for Economic
Development, Gauteng
[2013] ZASCA 67
;
2013 (5) SA 24
(SCA) para
47, Gauteng
2013 (5) SA 24
(SCA) para 47.
[27]
President of the RSA v SARFU
fn 15 para 148.
[28]
Pharmaceutical Manufacturers Association
fn 12 para 85.
[29]
Section 11(h)
of the
Refugees Act 130 of 1998
.
[30]
Section 23(1)
of the
Immigration Act reads
:
‘The Director-General may,
subject to the prescribed procedure under which an asylum transit
visa may be granted, issue
an asylum transit visa to a person who at
a port of entry claims to be an asylum seeker, valid for a period of
five days only,
to travel to the nearest Refugee Reception Office in
order to apply for asylum.’
[31]
Scalabrini (WCC)
fn 4 para 107.
[32]
Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Limited & another
[2015] ZACC 22
;
2015 (5) SA 245
(CC) para 44.
[33]
Trencon
para 45.
[34]
Somali Association
fn 10 para 30.
[35]
Somali Association fn 10 para 35.
[36]
E
conomic Freedom Fighters v
Speaker, National Assembly & others
[2016] ZACC 11
;
2016 (3)
SA 580
(CC) para 1.