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[2019] ZAKZDHC 21
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Mpoyi v Refugee Appeal Board and Others (6223/2017) [2019] ZAKZDHC 21 (3 July 2019)
IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU
NATAL LOCAL DIVISION, DURBAN
Case No. 6223/2017
In
the matter between:
Mukendi
Mpoyi
Applicant
and
The
Refugee Appeal
Board
First Respondent
Francisca
Dube
N.O.
Second Respondent
Minister
of Home Affairs
Third
respondent
The
Director General: Home
Affairs
Fourth Respondent
Judgment
Lopes
J:
[1]
The applicant in this matter, Mukendi Mpoyi delivered an application
on the 1
st
June 2017 seeking the following relief:
(a)
That the late delivery of his application is condoned in terms of s 9
(1)(
b
) of the Promotion of Administrative Justice Act, 2000
(‘the Act’).
(b)
Reviewing and setting the aside the decision of the Refugee Appeal
Board of the 22
nd
April 2015, together with the earlier
decision of the second respondent, Francisca Dube, acting in her
capacity as a Refugee Status
Determination Officer (‘RSDO’).
(c)
In terms of s 8(1)(
c
)(ii)(
aa
) of the Act, substituting
the decision of the Refugee Appeal Board and the RSDO with an order
declaring that Mr Mpoyi is recognised
as a refugee entitled to asylum
in terms of s 3 of the Refugees Act, 1998 (‘the Refugees
Act’).
(d)
That the Minister of Home Affairs and the Director General:
Home Affairs are directed
to issue Mr Mpoyi with written recognition
of his refugee status in terms of s 27(
a
) of the Refugees Act.
(e)
In the alternative directing that the Refugee Appeal Board’s
decision be reconsidered
by the Refugee Appeal Board in terms of s
8(1)(
c
)(i) of the Act, and further directing the Minister of
Home Affairs and the Director General: Home Affairs to reissue Mr
Mpoyi with
a Temporary Asylum Seekers Permit in accordance with the
provisions of s 22 of the Refugee Act, pending the final
determination
of the hearing of his application before this court.
(f)
Any respondents opposing the application be directed to pay Mr
Mpoyi’s costs.
[2]
The background to Mr Mpoyi’s arrival in the Republic of South
Africa and his
subsequent dealings with the various government
officials in pursuit of refugee status, have been set out in his
founding affidavit
in this application:
(a)
He arrived in South Africa from the Democratic Republic of Congo
(‘the DRC’),
on the 20
th
June 2005.
(b)
On that day he submitted an application for asylum at the refugee
centre in Durban. He could
only speak French and was not provided
with an interpreter.
(c)
At this first interview, the application process was not explained to
him, and he
did not fully understand what he was signing.
(d)
Two further interviews were conducted before Ms Dube, a RSDO: on the
30
th
November 2009, and on the 10
th
December
2009 (collectively, ‘the second interview’). Although an
interpreter was not present, Mr Mpoyi could speak
a bit of English by
this time. The RSDO was only interested in considering the statement
he had made at his first interview, and
not in any of his submissions
or the documents he had brought to the second interview.
(e)
The RSDO read his statement from the first interview, and requested
him to sign documents
which she placed before him. He did so.
He was not allowed to make any submissions or show her any other
documents.
(f)
The RSDO indicated that she did not believe Mr Mpoyi and his
application was rejected.
She further told him that he could
seek legal assistance if he wanted to pursue the matter.
(g)
Annexed to Mr Mpoyi’s founding affidavit is a three page
decision of the RSDO dated
the 10
th
December 2009.
That decision records that Mr Mpoyi has been refused refugee status
on the basis that his application was
rejected as ‘unfounded’.
(h)
After his interview Mr Mpoyi complained to the manager of the refugee
centre about the treatment
he had received at the hands of the RSDO.
He claimed he did not have a proper interview as it only lasted for
about five
minutes, and the RSDO would not listen to anything he
said. He was then insulted and treated in a derogatory manner
by the
manager of the refugee centre.
(i)
On the 12
th
August 2014 Mr Mpoyi sought assistance from
his attorneys of record with regard to the renewal of his permit to
reside in South
Africa. They obtained a date for an appeal
hearing and Mr Mpoyi was given what I presume is a temporary permit
until the
date of the appeal hearing.
(j)
On the 8
th
October 2014 Mr Mpoyi appeared before the
Refugee Appeal Board. The hearing lasted approximately 30
minutes and the Refugee
Appeal Board focused their attention on the
documents recording the second interview. The Refugee Appeal Board
had a predetermined
conclusion to his case and inherently distrusted
him because he was a foreigner.
(k)
During the conduct of the appeal, the Refugee Appeal Board requested
to look at Mr
Mpoyi’s UDPS membership card. That acronym refers
to the Union of Democracy and Social Progress, a political party in
the
DRC. Mr Mpoyi had maintained at all stages that he was a
member of that party, which was in opposition to the ruling party
of
Joseph Kabila.
(l)
A copy was made of Mr Mpoyi’s UDPS card. Members of the
Refugee
Appeal Board also asked to look at his marriage certificate
and his children’s birth certificates, but they did not make
copies of these documents.
(m)
On the 6
th
July 2015 Mr Mpoyi was told by the Refugee
Appeal Board that his appeal had been dismissed, and the decision
rejecting his application
for refugee status had been upheld. The
decision of the Refugee Appeal Board made on the 22
nd
April 2015, was handed to him. That document formed part of the
application papers.
(n)
As Mr Mpoyi had received his refusal letter on the 6
th
July 2015, he was obliged to leave the Republic of South Africa by
the 6
th
August 2015.
(o)
During November 2016, and concerned that he was residing in South
Africa illegally, Mr Mpoyi
travelled to the embassy of the DRC in
Pretoria to obtain a passport. He was given a passport and he
travelled to the border
between Zambia and the DRC. From there
he called his brother in Lubumbashi and arranged to give him his
passport so that
he could apply for a South African visa for Mr
Mpoyi. Mr Mpoyi’s brother did so and procured a ‘holiday’
visa for the Republic of South Africa, valid until the 26
th
November 2017. That visa provides that Mr Mpoyi was entitled to
visit South Africa for no longer than 30 days.
(p)
Mr Mpoyi alleges that he is unable to return to the DRC because his
name and photograph
appear on ‘wanted’ lists at the ports
of entry into the DRC. He fears that if he returns to the DRC he will
be recognised
and arrested. He is unable to seek asylum in any other
country because his wife and children reside with him here in South
Africa
and depend on him for support.
(q)
Mr Mpoyi’s wife, to whom he was married in 2008, possesses a
Temporary Asylum
Seekers Permit, and she earns a small income with
which to support their family. Mr Mpoyi maintains that he is
unable to
work because he does not have a valid permit. Both
his children were born in South Africa (the 13
th
May 2009
and the 1
st
February 2013). His son attends school in
South Africa and he is in grade 3. His daughter will start
grade R next year.
Each of the children has a valid Asylum
Seekers Temporary Permit.
[3]
Mr Mpoyi further sets out in detail the background to his application
for asylum.
This starts with him being born in the DRC on the
21
st
May 1972, growing up there, becoming the first
secretary for the UDPC in Lubumbashi and studying at university in
the DRC. He was
forced to leave the DRC in 2005. He alleges
that he was arrested on a number of occasions by the National
Intelligence Agency
and detained in Kinshasa for short periods of
time.
[4]
In the Refugee Appeal Board hearing Mr Mpoyi alleged that he was
imprisoned at the
beginning of October 2003 in Kinshasa after
demonstrating with 15 000 people at the United Nations office in
Kinshasa, in
order to hand over a memorandum. He was detained
for eight months. After his release, Mr Mpoyi was again
imprisoned
during May, 2005. He was arrested together with
approximately one hundred other students at the Université
Pédagogique
Nationale. This had not been recorded in the two
interviews.
[5]
In his founding Mr Mpoyi alleges he was tortured at the headquarters
of the National
Intelligence Agency. His right lower leg was
badly injured during his torture, and due to media and political
pressure he
was taken to Kinshasa General Hospital where he stayed
for one day to receive treatment. He received travel documents
and
an air ticket from officials of his party, and travelled to
Brazzaville in the Republic of Congo. From there he fled to
Johannesburg.
[6]
Mr Mpoyi then deals with the
circumstances surrounding his application for condonation
for the
late filing of his review proceedings. He criticises the refugee
centre for, as he puts it, dragging the matter out from
2005 until he
obtained a decision from the Refugee Appeal Board in 2015. He
criticises the decision of the Refugee Appeal
Board as it took
irrelevant considerations into account, it did not consider relevant
considerations, it made its decision arbitrarily,
capriciously and in
bad faith and that the decision of the Refugee Appeal Board was not
rationally connected to the information
before it.
[7]
The Refugee Appeal Board and the RSDO provided the record of the
proceedings and their
reasons for the decisions they made.
Certain of the factual allegations of Mr Mpoyi are dealt with in the
answering affidavits,
but the Refugee Appeal Board and the RSDO abide
the decision of this court.
[8]
When the matter first came before me as an opposed motion, I raised
with the parties’
legal representatives that there appeared to
be a manifest dispute of fact on the papers. This was because
the respondents
averred, inter alia, that there had been a case of
identity fraud and that the present applicant, Mr Mpoyi, was not the
person
who appeared before them in 2005. The parties’
legal representatives then considered their respective positions and
Ms
Pudifin-Jones
, who appeared for the Minister of Home
Affairs and the Director General: Home Affairs notified the
court that she would not
argue for the acceptance of allegations set
out regarding the identity theft. She indicated, however, that
she had no instructions
to abandon those allegations. This was
because she was unable to obtain instructions due to the fact that
the file handler
in the Office of the State Attorney was on leave.
For various reasons it was then necessary to adjourn the application
for
four days. When they returned Ms
Pudifin-Jones
informed me
that she had been given instructions to abandon reliance on any of
the allegations regarding identify fraud.
Mr
Suleman
,
who appeared for Mr Mpoyi, then stated that he did not wish to pursue
the matter of a referral to trial or for the hearing of
oral
evidence, but wanted to argue for final relief. I then heard argument
on the matter.
[9]
Mr
Suleman
then argued four issues:
(a)
The condonation application.
(b)
The circumstances surrounding the fact that Mr Mpoyi had allegedly
re-availed himself of
the protection of his country of origin.
(c)
The credibility of Mr Mpoyi.
(d)
The appropriate remedy.
[10]
Mr
Suleman
referred me to the paragraphs in Mr Mpoyi’s
founding affidavit which set out the delay between the decision of
the Refugee
Appeal Board and this application. It is necessary
for Mr Mpoyi to obtain the condonation of this court for the late
filing
of his application, which was made some 27 months after the
decision of the Refugee Appeal Board.
[11]
Section 7(1) of the Act provides that any proceedings for judicial
review in terms of s 6(1)
must be instituted without unreasonable
delay and not later than 180 days after the date on which the
applicant was informed of
the decision sought to be reviewed.
Section 9(1)(
b
) allows for condonation of the extension of the
180 day time period either by agreement between the parties, or by
decision of
a court on application by the applicant.
[12]
As there is no consent between the parties for the condonation
requested, it is necessary for
me to decide that issue. Mr
Mpoyi submits that his application for condonation should be granted
because the interests of
justice require that I do so (see s 9(2) of
the Act). He submitted that the refugee centre dragged out the
finalisation of
this application for asylum from June 2005 until the
appeal decision in 2015. He sets out in his founding affidavit the
difficulties
which he had in leaving South Africa without the
necessary permission and having to return to the DRC to obtain a
travel visa.
[13]
Mr
Suleman
referred me to
City of Cape Town v Aurecon SA
(Pty) Ltd
2017 (4) SA 223
(CC). At para 46 of the judgment,
the Constitutional Court records that the Constitution provides that
‘all constitutional
obligations must be performed diligently
and without delay’. This is echoed in the Act which provides
that proceedings for
judicial review must be instituted ‘without
unreasonable delay’. The court then quoted the SCA when dealing
with the
factors that needs to be considered when granting
condonation:
‘
The relevant factors in that
enquiry generally include the nature of the relief sought; the extent
and cause of the delay; its effect
on the administration of justice
and other litigants; the reasonableness of the explanation for the
delay, which must cover the
whole period of the delay; the importance
of the issue to be raised; and the prospects of success.’
(Footnotes omitted).
[14]
Mr
Suleman
, correctly in my view, conceded that the applicant
had not set out any detail explaining the 27 month delay. Mr
Suleman
submitted, however, that a lack of detail in
explaining the delay should not trump the importance of the issue to
be raised –
the interests of justice. In this regard he
referred to the extreme prejudice to which Mr Mpoyi would be
subjected, were
he to be compelled to return to the DRC.
[15]
With regard to the suggestion that Mr Mpoyi re-availed himself of the
protection of the DRC,
he submitted that there were only two
circumstances to consider:
(a)
His return to the DRC when he got married.
(b)
His return to the DRC in 2016 after the Refugee Appeal Board had
dismissed his appeal.
[16]
Mr
Suleman
submitted that the first occasion was disclosed to
the Refugee Appeal Board and the circumstances of that hearing, as
alleged by
Mr Mpoyi are set out above. Mr
Suleman
submitted that after his appeal Mr Mpoyi faced two decisions: either
reveal to the officials what he had done, or explore unofficial
means
of obtaining a passport. At that stage Mr Mpoyi reverted to
what are euphemistically referred to as ‘unofficial
means’
of travelling to the DRC and back and of obtaining a passport in that
country together with a ‘for holiday purposes’
visa to
visit South Africa for no more than 30 days. Mr
Suleman
submitted that cognisance should be taken of the fact that Mr Mpiyo
had disclosed all this information in his affidavit.
[17]
Mr
Suleman
handed me an extract from the
Handbook on
Procedures and Criteria for Determining a Refugee’s Status
under the 1951 Convention and 1967 Protocol relating
to the Status of
Refugees.
Mr
Suleman
submitted that, as set out in
the Handbook, there were three requirements to establish whether an
applicant had availed themselves
of the protection of their country
of origin:
(a)
voluntariness;
(b)
the intention to re-avail themselves of the protection of their
country of origin; and
(c)
the re-availment itself.
These
requirements had to be considered in dealing with the provisions of s
5 of the Refugees Act, which provides:
‘
5. Cessation of
refugee status.
– (1)
A person ceases to qualify for refugee status for the purposes of
this Act if –
(a)
he or she voluntarily
reavails himself or herself of the protection of the country of his
or her nationality; or
(b)
having lost his or her
nationality, he or she by some voluntary and formal act reacquires
it; or
(c)
he or she becomes a citizen
of the Republic or acquires the nationality of some other country and
enjoys the protection of the country
of his or her new nationality;
or
(d)
he or she voluntarily
re-establishes himself or herself in the country which he or she
left; or
(e)
he or she can no longer
continue to refuse to avail himself or herself of the protection of
the country of his or her nationality
because the circumstances in
connection with which he or she has been recognised as a refugee have
ceased to exist and no other
circumstances have arisen which justify
his or her continued recognition as a refugee.’
[18]
Mr
Suleman
submitted that Mr Mpoyi voluntarily returned to the
DRC on both occasions but did not intend to re-avail himself of the
protection
of the DRC. In addition, he was not afforded the
protection of the DRC. When he returned to South Africa, the Refugee
Appeal
Board was clearly aware of the fact that his marriage
certificate originated in the DRC. The members of the Refugee Appeal
Board
made no enquiries in this regard. The fact that Mr Mpoyi
got married in the DRC does not indicate that he invoked the
protection
of that country.
[19]
With regard to the credibility of Mr Mpoyi, Mr
Suleman
submitted that the first interview was conducted without Mr Mpoyi
being afforded the assistance of an interpreter, in circumstances
where he was only competent to express himself in the French
language. The contents of this interview were used in making
the decision in the second interview. The decisions in both
those interviews were then relied on by the Refugee Appeal Board.
In those circumstances the unfairness in failing to provide Mr Mpoyi
with an interpreter in the first interview, operated as a
domino
effect which ended up with the refusal to set aside the decision of
the RSDO by the Refugee Appeal Board.
[20]
Mr
Suleman
submitted that in terms of regulation 5 of the
Refugee Regulations (Forms and Procedure), 2000 an interpreter is
provided where
practicable or necessary. If it is not
practicable for the departmental officials to do so, the applicant is
required to
supply an interpreter which cannot be a representative or
employee of the country in which the applicant fears persecution or
harm.
[21]
Mr
Suleman
questioned how there could be any reliance on
allegedly different versions given by Mr Mpoyi, in circumstances
where no proper
interpreter was available. This submission was
made whilst conceding that an interpreter had been available during
the Refugee
Appeal Board hearing. In this regard Mr Mpoyi
alleges that the services of that interpreter were problematic.
[22]
In dealing with the Refugee Appeal Board decision, Mr
Suleman
submitted:
(a)
In para 15 of its decision, the Refugee Appeal Board appears to have
conceded that allowance
had to be made for the language problems when
Mr Mpoyi made his original applications. The last sentence of that
paragraph reads:
‘
However, due to lack proper
English in wring the claims he will be government the benefit of the
doubt (sic).’
Presumably the Refugee
Appeal Board was suggesting that because of Mr Mpoyi’s
inability to express himself in writing in English,
he would be given
the benefit of any doubt.
(b)
In para 22, the Refugee Appeal Board appears to regard as implausible
that the government
of the DRC, having tortured Mr Mpoyi, sent him to
hospital in circumstances where they wanted to kill him. Mr
Suleman
submitted that this takes no account of the
allegations of media pressure made by Mr Mpoyi.
(c)
In para 36 of the Refugee Appeal Board decision they record that it
is unlikely that
Mr Mpoyi would face a reasonable possibility of
being prosecuted if he returns to the DRC. Mr
Suleman
submitted that this was a
non sequitur
based on the
information provided by Mr Mpoyi.
[23]
Mr
Suleman
submitted that both the Refugee Appeal Board and
the RSDO failed to apply their minds to the facts alleged by Mr
Mpoyi, and that
their decisions were not rationally connected to the
facts presented to them.
[24]
In the circumstances Mr
Suleman
seeks an order for condonation
and the review of the Refugee Appeal Board decision. He
submitted that I should consider substituting
my own decision for
that of the Refugee Appeal Board because there was obvious bias
against Mr Mpoyi. In addition, the process
has taken so long to
be finalised that it would be unfair to Mr Mpoyi if I were to delay
it any further by referring the matter
back to the Refugee Appeal
Board. If I were to hold in the alternative, that the decision
of the Refugee Appeal Board be
reconsidered afresh by it, I should
introduce a time frame to ensure that the decision was made without
undue delay.
[25]
Mr
Pudifin-Jones
based her argument on three factors:
(a)
undue delay;
(b)
a lack of credibility on the part of Mr Mpoyi; and
(c)
the fact of Mr Mpoyi’s re-availment of the protection of the
DRC.
[26]
Mr
Pudifin-Jones
referred me to the provisions of the Act, and
in particular s 7(1) which provides that an application for judicial
review must
be instituted without unreasonable delay and not later
than 180 days after notice of the decision. She emphasised the
27
month delay and recorded that the Constitutional Court has
repeatedly emphasized the importance of the statutory time limits
under
the Act. In this regard she referred
to Buffalo City v
Asla Construction (Pty) Limited
(CCT91/17)
[2019] ZACC 15
(16
April 2019).
[27]
Ms
Pudifin-Jones
emphasised that the onus is on Mr Mpoyi to
explain the entire period of the delay, which he had failed to do.
The information
contained in his founding affidavit dealing with
condonation reflects very little of any moment. Ms
Pudifin-Jones
drew my attention to the fact Mr Mpoyi stated
that towards the end of 2015, he had become increasingly worried
about residing in
South Africa illegally, and had returned to the
DRC. (This must have been towards the end of 2016, as the visa is
dated the 25
th
November 2016). He had thereafter
returned on a holiday visa. It was only in reply that Mr Mpoyi
raised the fact that
he was not previously aware of the fact that
free legal advice was available to him. This had only occurred
in 2018 when
the original application had been launched in 2017.
[28]
Mr
Pudifin-Jones
also drew attention to the fact that the Mr
Mpoyi had attended university and was clearly an educated person.
In those circumstances
the delay was unacceptable.
[29]
With regard to the credibility of Mr Mpoyi, Mr
Pudifin-Jones
handed up a table which sets out the dates on which Mr Mpoyi had
completed the first interview, the second interview with the RSDO
and
the Refugee Appeal Board hearing. She sets out on the chart the
various differences which she maintains are contained
in the versions
given by him at each of these occasions. On this basis she
submitted that Mr Mpoyi had put forward five substantially
different
versions as to his arrival in the Republic of South Africa. He
also failed to set out how he had travelled from
one country to the
other, both in his journey to South Africa and his return to the DRC
and back.
[30]
With regard to re-availment, Ms
Pudifin-Jones
submitted that
if Mr Mpoyi re-availed himself of the protection of the DRC, he could
not claim the status of a refugee. His
marriage certificate was
issued on the 22
nd
February 2016, and clearly indicates
that Mr Mpoyi had, during 2008, invoked the protection of the DRC by
electing to be married
in that country. She also criticises the
fact that Mr Mpoyi had relied upon a South African holiday visa in
order to re-enter
South Africa. She submits that he must have
known in those circumstances that he was not entitled to do so.
[31]
Ms
Pudifin-Jones
drew my attention to para 121 of the Handbook
where it states that if a refugee applies for, and obtains a national
passport or
its renewal, they will, in the absence of proof to the
contrary, be presumed to have intended to avail themselves of the
protection
of the country of their nationality. (I note that para 121
goes on to state that the acquisition of a document such as a
marriage
certificate or similar service cannot be regarded as a
re-availment of protection).
[32]
Mr
Pudifin-Jones
submitted that in the circumstances the
application falls to be dismissed. She submitted that the
decision of the Refugee
Appeal Board, whilst not perfect, is
sufficient and none of the factors set out in s 6(2) of the Act are
present to an extent which
will justify the review and setting aside
of the Refugee Appeal Board’s decision.
[33]
In reply Mr
Suleman
drew my attention to the fact that the
Minister of Home Affairs and the Director General: Home Affairs had
not dealt with the interpreter
problem in their affidavits. He
submitted that even if Mr Mpoyi had used unofficial means to return
to the DRC, his intention was
never to seek the protection of that
country, and he cannot be said to have availed himself of its
protection in the circumstances.
[34]
The first issue I must consider is that of condonation. As s 7(1) of
the Act refers to the fact
that proceedings for judicial review ‘must
be instituted without unreasonable delay and not later than 180 days
after the
date.…’ it is reasonable to assume that the
legislature regarded any period after the 180 days to be an
unreasonable
delay. In the present circumstances Mr Mpoyi
waited some two years and three months before bringing the
application for review.
He was thus over four times outside the
limit of reasonableness as it may be viewed in the Act.
[35]
In my view Mr Mpoyi has given no reasonable explanation for the
unwarranted delay in bringing
the review application. He was
clearly aware of the Refugee Appeal Board’s decision, and he
was aware that he was then
required to leave the Republic of South
Africa. It was his concern for this fact that prompted him to
obtain a holiday visa
to return to South Africa during November
2016. Prior to that Mr Mpoyi had appeared before an official at
the refugee centre
in Durban on the 25
th
June 2005, had
appeared before the RSDO on the 30
th
November 2009 and on
the 10
th
December 2009, and had appeared before the
Refugee Appeal Board on the 20
th
April 2015. In the
circumstances he must have been acutely aware of the fact that time
periods operated with regard to the
taking of decisions and further
steps in the process of obtaining the status of a refugee.
[36]
I am acutely aware of the effect which the relief sought by Mr Mpoyi
will have upon his life
and that of his family. If the
application for condonation or the application on the merits is
refused, he will have to return
to the DRC. His family will
then be faced with the unenviable choice of following him there or
remaining here and living
apart from him. The delay, however,
seems inexcusable, particularly for a person who has been educated to
a tertiary level.
To condone the late bringing of his
application will no doubt affect the administration of justice and
the approach of other litigants
to compliance with the provisions of
the Act. Simply to ignore the two years and three months delay
because of sympathy with
the plight of Mr Mpoyi and his family, does
not assist the proper administration of justice. Were the inordinate
delay to be condoned
in circumstances where it should not be, other
litigants will consider themselves hard done by if they are not
afforded the same
relief. The explanation for the delay is
almost non-existent and it does not cover the period of delay.
The review
application should have been instituted by the 6
th
January 2016, but was only instituted on the 2
nd
June 2017
– overdue by some 17 months. Mr Mpoyi does not disclose whether
he ever discussed the decision of the Refugee Appeal
Board with his
erstwhile attorneys. It seems more than probable that he would
have done so, and been given advice about a
possible review.
[37]
There are manifest disputes of fact between the versions of Mr Mpoyi
and the respondents. On
the different versions of Mr Mpoyi alone
there are improbabilities and contradictions.
[38]
I refer to the approach of our courts to delay as set out in
Cape
Town City v South African National Roads Agency Ltd & others
2015 (6) SA 535
(WCC) para 21 to 33;
South African National Roads
Agency Ltd v Cape Town City
2017 (1) SA 468
(SCA) para 69 and
what has been stated by Professor Cora Hoexter in
Administrative
Law in South Africa
2 ed, (2011) at 534 – 538.
[39]
Insofar as the merits of Mr Mpoyi’s matter have influenced my
approach to delay I do not
consider the reasoning of the Refugee
Appeal Board to be reviewable. In addition, the interests of justice
would not be served
by allowing condonation of such an inordinate
delay which Mr Mpoyi has not seen fit to deal with in any detail.
[40]
I record that the fact that the political party headed by Joseph
Kabila no longer rules in the
DRC played no part in my
considerations. I have reached my decision based solely on the
information available to the Refugee
Appeal Board and the explanation
given for the delay by Mr Mpoyi. That explanation is clearly
inadequate.
[41]
In all the circumstances I make the following order:
‘
The application
for condonation is refused and consequently the entire application is
dismissed.
Lopes
J
Date
of hearing:
21
st
June 2019
Date
of judgment:
3
rd
July 2019
For the
applicant:
Mr M Z F Suleman (instructed by Norton Rose Fulbright South Africa
Inc)
For
the third and fourth
respondents:
Ms S F Pudifin-Jones (instructed by the State
Attorneys)