About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2021
>>
[2021] ZASCA 124
|

|

Somali Association of South Africa and Others v Refugee Appeal Board and Others (585/2020) [2021] ZASCA 124; [2021] 4 All SA 731 (SCA); 2022 (3) SA 166 (SCA) (23 September 2021)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 585/2020
In
the matter between:
SOMALI
ASSOCIATION OF SOUTH AFRICA

FIRST APPELLANT
HASSAN
ABDINASIR OSMAN
SECOND

APPELLANT
ALI
JAMAC
KHAYRE

THIRD APPELLANT
ABDULKADIR
MOHAMED OMAR

FOURTH APPELLANT
ABDIRAHMAN
ALI MAHAMED

FIFTH APPELLANT
MOHOMED
AHMED

SIXTH APPELLANT
MOHAMED
MAHMUD OSMAN

SEVENTH APPELLANT
MARYAMA
MUHUMED KAHIN

EIGHTH APPELLANT
ABDULLAHI
BASHIR HASSAN

NINTH APPELLANT
and
THE
REFUGEE APPEAL
BOARD

FIRST RESPONDENT
THE
MINISTER FOR HOME AFFAIRS

SECOND RESPONDENT
THE
DIRECTOR-GENERAL OF THE
DEPARTMENT
OF HOME AFFAIRS

THIRD RESPONDENT
THE
STANDING COMMITTEE FOR
REFUGEE
AFFAIRS

FOURTH RESPONDENT
THE
TSHWANE INTERIM REFUGEE
RECEPTION
OFFICE

FIFTH RESPONDENT
THE
PRETORIA REFUGEE RECEPTION OFFICE

SIXTH RESPONDENT
THE
STANDING COMMITTEE FOR
REFUGEE
AFFAIRS

SEVENTH RESPONDENT
Neutral citation:
Somali Association of South Africa and Others v The Refugee
Appeal Board and Others
(Case no 585/2020)
[2021] ZASCA 124
(23
September 2021)
Coram:
NAVSA ADP, VAN DER MERWE, MOLEMELA, MBATHA AND HUGHES JJA
Heard:
19 August 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives by email. It has
been published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time for hand-down is deemed to be handed
down on 23
September 2021.
Summary:
Applications for refugee status – duty on decision-maker to
assist asylum seeker to obtain as full a picture as possible on
which
to predicate a decision – information and evidence to be
gathered or acquired in terms of the provisions of the
Refugees Act
130 of 1998
, the regulations and in accordance with the UNHCR
Handbook – regard to be had to the provisions of both
s 3
(a)
and
3
(b)
of the Act – persecution too narrowly viewed –
onus to show that statutory requirements met on applicant but has to

be viewed with regard to a range of factors – applicant must be
afforded an opportunity to confront and deal with adverse
factors
that might weigh against him or her – Refugee Appeal Board
(RAB) and high court failed to consider that appeal was
one in the
wide sense – RAB failed to observe fundamental administrative
law principles – decisions set aside –
no basis for
substitution order – structural interdict not warranted.
ORDER
On
appeal from:
Gauteng Division of the High Court, Pretoria (Mlambo
JP sitting as court of first instance):
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the high court is set aside and substituted as follows:
‘
1.1
The applicants’ delay in bringing the review of the decisions
by the Refugee
Appeal Board outside the 180 day time limit prescribed
in the
Promotion of Administrative Justice Act 3 of 2000
is condoned.
1.2
The following decisions of the Refugee Appeal Board (“RAB”)
are reviewed and
set aside:
(a)
Appeal number 2923/14 of 14 October
2014, dismissing the appeal of Mr Hassan Abdinasir Osman.
(b)
Appeal number 3459/14 of 1 December
2014, dismissing the appeal of Mr Ali Jamac Khayre.
(c)
Appeal number 1212/14 of 21 November
2014, dismissing the appeal of Mr Abdulkadir Mohamed Omar.
(d)
Appeal number 3848/14 of 2 March 2015,
dismissing the appeal of Mr Abdirahman Ali Mahamed.
(e)
Appeal number 2683/14 of 28 November
2014, dismissing the appeal of Mr Mohomed Ahmed.
(f)
Appeal number 3455/14 of 14 October
2014, dismissing the appeal of Mr Mohamed Mahmud Osman.
(g)
Appeal number 538/13 of 26 March 2014,
dismissing the appeal of Mrs Maryama Muhumed Kahin.
(h)
Appeal number 1790/13 of 22 May 2015,
dismissing the appeal of Mr Abdullahi Bashir Hassan.
1.3
The 2
nd
to 9
th
applicants’ appeals are
remitted to the Refugee Appeals Authority for hearings afresh, with
hearings to commence not later
than Monday 4 October 2021 and
decisions to be rendered no later than Friday 5 November 2021.
1.4
The respondents are ordered to pay the appellants’ costs,
including the
costs of two counsel, jointly and severally, the one
paying the other to be absolved.’
3
The hearings and the adjudication of the appeals referred to
in the
substituted order are to be conducted in terms of the principles set
out in paras 71 to 92 of this judgment under the various
subheadings.
JUDGMENT
Navsa ADP (Van Der Merwe,
Molemela, Mbatha and Hughes JJA concurring)
Introduction
[1]
This case is about how applications for refugee status must be dealt
with and adjudicated.
Before dealing with
how the appeal arose, it is necessary, at the outset, to accept that
there is a legitimate State interest and
concern to ensure that
refugee status is granted only to those who qualify, to disqualify
unfounded applications and to provide
for the cessation of refugee
status. In the case of persons who have come to our country to seek
asylum and those who might ultimately
qualify for refugee status, the
following two quotes are apposite:
‘
Migrants
and refugees are not pawns on the chessboard of humanity. They are
children, women and men who leave or who are forced
to leave their
homes for various reasons, who share a legitimate desire for knowing
and having, but above all for being more.’
[1]
The
renowned author, Khaled Hosseini, is reported to have said the
following:
‘
Refugees
are mothers, fathers, sisters, brothers, children, with the same
hopes and ambitions as us – except that a twist
of fate has
bound their lives to a global refugee crisis on an unprecedented
scale.
’
[2]
International
television news channels and other media regularly feature images of
refugee crises unfolding in many parts of the
world with the
attendant human cost. A relatively recent stark image of the body of
a three year-old toddler on a Turkish beach,
after fleeing from war
in Syria, springs to mind.
[3]
The skepticism, to which State authorities and decision-makers are
sometimes prone in relation to applications for refugee status,

should be tempered by what is set out above and by the obligations of
countries embodied in international instruments, which will
be
discussed in due course, and, of course by, the prescripts of
domestic legislation. I deal with the background culminating in
the
present appeal in the paragraphs that follow.
[2]
This is an appeal, with the leave of this Court, against a decision
of the Gauteng
Division of the High Court, Pretoria (the high court),
per Mlambo JP, dismissing an application by the first to ninth
appellants,
for an order reviewing and setting aside decisions of the
Refugee Appeal Board
[4]
(the RAB). That body had dismissed appeals by the second to ninth
appellants against decisions of Refugee Status Determination

Officers,
[5]
refusing them refugee status. Their applications for refugee status
are at the
centre
of this
appeal. More particularly, the legality and fairness of the process
adopted by the RAB in arriving at the impugned decisions
are brought
into question, including whether it complied with its duty to assist
an asylum seeker to procure evidence and information
on which the
decisions were to be predicated. The alleged misapplication by the
RAB of the statutory requirements for refugee status
is a further
important issue in this appeal.
[3]
The first appellant is the Somali Association of South Africa, a
registered non-profit
organisation, which has amongst its objects,
the organisation of the Somali refugee community and generally
defending the rights
and advancing the welfare of the Somali
community in South Africa. A person seeking recognition as a refugee
in South Africa is,
in terms of the Refugees Act 130 of
1998
(the
Act), an ‘asylum seeker’.
[6]
The second to ninth appellants are the eight asylum seekers who were
refused refugee status. I shall, for convenience, where the
context
requires, refer to the second to ninth appellants collectively, as
the eight asylum seekers or, where they are referred
to separately, I
shall refer to them as an asylum seeker in the sequence in which they
appear as appellants. For example, the second
appellant would be the
first asylum seeker, the third appellant, would be the second asylum
seeker and so on. It is in that order
that the high court referred to
them.
[4]
The respondents are as they were in the high court. The RAB is the
first respondent.
The Chairperson of the RAB was cited in his
official capacity as the second respondent. The third respondent is
the Minister of
Home Affairs (the Minister), the responsible Minister
in terms of the Act. The Director-General of the Department of Home
Affairs
(the DG) was cited as the fourth respondent. The Tshwane
Interim Refugee Reception Office was cited as the fifth respondent in
the high court. The Pretoria Refugee Reception Office and the
Standing Committee for Refugee Affairs were cited as the sixth and

seventh respondents, respectively. Only the RAB, its chairperson, the
Minister and the DG filed opposing affidavits in the high
court. They
made common cause and were represented by the same counsel, both in
the high court and before us.
[5]
Over and above seeking a review and the setting aside of each of the
eight decisions
by the RAB, referred to in paragraph 1 above, the
appellants had, in the high court, sought, in addition, the following
extensive
substantive relief, which included substitution orders and
a structural interdict:
‘
2
Each of the decisions of the RAB in paragraph 1 above are substituted
with the following decision:
2.1
The appellant’s appeal against the decision of the Refugee
Status Determination Officer is upheld
2.2
In terms of
section 24(3)(a)
of the
Refugees Act 130 of 1998
, the
appellant is granted asylum.
3
The 5
th
and 6
th
respondents are directed to
issue the second to ninth applicants with formal written recognition
of refugee status as provided
in
section 27(a)
of the
Refugees Act
read
with the provisions of regulation 15 of the Refugee Regulations
(Forms and Procedure), 2000 published in GN R366 in GG 21075, of
6
April 2000, as amended by GN R938 in GG 21573 of 15 September 2000,
within 10 days of service of this order.
.
. .
5
It is declared that the approach of the RAB to the decisions referred
to in paragraph
1 above was unlawful and invalid in,
inter alia
,
the following respects (“the repeated errors”):
5.1
The RAB treats political persecution as a necessary condition for
refugee status in terms of section
3 of the Refugees Act 130 of 1998
(“
Refugees Act&rdquo
;), and accordingly:
5.1.1
fails to consider and apply
section 3(b)
of the
Refugees Act in
appropriate cases; and
5.2.2
fails
to
recognise
that other
forms of persecution qualify applicants for refugee status in terms
of
section 3(a)
of the
Refugees Act.
5.2
The
RAB fails to comply with the “shared burden of proof”,
as set out in paragraph 196 of the UNHCR Handbook and Guidelines
on
Procedures and Criteria for Determining Refugee Status.
5.3
The RAB refuses to consider the merits of an application for asylum
unless it is convinced as a matter
of certainty that the applicant
for asylum is credible in all respects.
5.4
The RAB assesses the credibility of asylum seekers by having regard
primarily to alleged inconsistencies
in their evidence, and makes
adverse credibility findings wherever it finds previous inconsistent
statements in that evidence.
5.5
The RAB fails to put prejudicial country of origin information to
applicants for asylum and fails to
afford them a reasonable
opportunity of responding to such information.
5.6
The RAB requires applicants for asylum to supply their own
interpreters at their own expense, irrespective
of whether it is
practicable and necessary for the Department of Home Affairs to
provide interpretation services.
6
The second and third respondents are directed:
6.1
Within
6
months
of the date of this order, to investigate and identify the causes of
the repeated errors in the RAB’s decision-making.
6.2
Within
12
months
of the date of this order, to develop a plan or plans – in
consultation with the first applicant, the applicants’
attorneys and other interested parties – to address the causes
of these repeated errors in the RAB’s decision-making.
6.3
Within
one
week of the expiry of the deadline in paragraph 6.2
above, to file an affidavit with this Court and the applicant’s
attorneys setting out:
6.3.1
the findings of the investigation conducted in accordance with
paragraph 6.1 above; and
6.3.2
the plan or plans developed in accordance with paragraph 6.2 above.
7
The second and third respondents are directed to file reports, on
affidavit, with this
Court and the applicant’s attorneys,
at
least every 2 months
from the date of this order, setting out the steps taken to comply
with
paragraph
6 of this
order.’
[6]
It is necessary to record that the Act was amended quite
substantially, approximately
one year after the high court’s
judgment was delivered, with the amendments coming into effect during
January 2020. New regulations
were concomitantly promulgated. The
material changes are those provisions that:
(a)
replaced the RAB with the Refugee Appeals Authority (the RAA), the
chairperson and some members of which are now required to
have a
legal qualification;
(b)
deal with the ability of one member of the RAA being able to hear and
determine an appeal;
(c)
allow for the appointment of more persons to the RAA to deal with
increased volumes of work,
(d)
extend the bases for exclusion from refugee status;
(e)
set out that a Refugee Status Determination Officer (RSDO) in
adjudicating applications for refugee status must do so having
regard
to the provisions of the Promotion of Administrative Justice Act 3 of
2000 (previously there was reference to the just administrative

provisions of the Constitution) and must, in particular, ensure that
an applicant fully understands the procedures, his or her
rights and
responsibilities, and the evidence presented.
[7]
The attendant regulations also provide greater clarity on how the
RSDO must conduct
hearings in relation to applications for refugee
status and how further information, evidence and clarification might
be sought
and obtained. They also provide that an interview must be
recorded. The definition section, under ‘hearing before Refugee

Status Determination Officer’, envisages interviews being
recorded, ‘either digitally or otherwise’. This ought
to
lead to greater transparency and accountability. Digital recordings,
to a large extent, ought to exclude disputes concerning
the nature
and tenor of the interviews. But more about the amendments later. The
eight asylum seekers were at the relevant times
dealt with in terms
of the Act and the regulations as they then stood.
[8]
The Act, in its pre-amended and post amendment forms, deals with what
was referred
to earlier, namely the State’s interests to ensure
that refugee status is granted to only those who qualify. It provides
for the disqualification of unfounded applications and the cessation
of refugee status.
[7]
The Act prescribes how applications for refugee status must be dealt
with and provides for appeals. In dealing with such applications,
it
must be
emphasised
,
once again, that State authorities are required to ensure that
constitutional values, including those that embrace international

human rights standards set by international conventions and
instruments in relation to those seeking asylum, adopted by South
Africa,
[8]
are maintained and promoted. Section 2 of the Act, in recognition of
the aforesaid values, entrenches the international principle
of
non-refoulement,
[9]
an aspect noted by the high court and discussed later in this
judgment.
[9]
It is now necessary to set out what the appellants contended are the
facts against
which their appeals before the RAB should have been
adjudicated. It is important, for reasons that will become apparent
later,
to stress that much of what appears immediately hereafter,
concerning the circumstances under which the eight asylum seekers
left
their country of origin, is drawn from the founding affidavit in
support of the application in the high court, rather than from
the
information supplied by the eight asylum seekers in their
applications for asylum or from the information they supplied to
the
RAB.
The
founding affidavits
Conditions
in Somalia and the flight by the eight asylum seekers from their
country of origin
[10]
The eight asylum seekers described how they were compelled to flee
the civil war and resultant
humanitarian crisis that endured in
Somalia between 2007 and 2012. They explained that Somalia has been
in a state of civil war
since 1990 and that it has not had a stable
government since the fall of the Barre regime in 1991. They stated
that estimates of
the deaths caused by the conflict vary between
500 000 and 1 million and pointed to a report by the United
Nations High Commission
for Refugees (UNHCR), indicating that there
are over 975 000 registered Somali refugees living in countries
comprising the
horn of Africa. The appellants ventured that the
global figure must, therefore, be much higher.
[11]
According to the appellants, the period between 2006 and 2012 was the
most significant, as that
was the time when they had fled the
conflict in Somalia. They stressed that this was when the conflict
was at its most intense
with Al-Shabaab, a militant group that
threatened the government, at the height of its power and influence,
and that troops from
African countries had been deployed to Somalia
to counter that threat. There was extensive fighting involving
warlords and clan-based
militias. The conflict in Somalia had been
concentrated in Central and Southern Somalia. The appellants detailed
the various phases
of the conflict and the role therein of
Al-Shabaab, which according to them is the foremost militant group,
with links to Al-Qaeda.
In support of their own assertions the eight
asylum seekers relied, additionally, on reports by the UNHCR.
[12]
The Transitional Federal Government (the TFG) supported by Ethiopian
troops retook the capital,
Mogadishu, in the south of the country, in
December 2006. In 2007, Al- Shabaab and its allies launched
waves of attacks on
the TFG and Ethiopian forces in Mogadishu. By
March 2007, the African Union forces landed in Mogadishu in support
of the TFG. Between
2007 and 2009 Al-Shabaab had gained control of
most of Mogadishu and seized towns and villages in South and Central
Somalia. By
January 2009, Ethiopian forces withdrew from Somalia, and
Al-Shabaab continued to extend its geographical control.
[13]
Between 2011 and 2012, the conflict between African Union forces, in
support of the TFG, and
Al-Shabaab continued. By August 2011,
Al-Shabaab had withdrawn from Mogadishu and had resorted to guerilla
tactics in that city.
In October 2011, Kenyan forces, at the
invitation of the TFG, entered the fray. January 2012 saw Ethiopian
forces capture towns
in Central Somalia. In September 2012, the
Somalia Federal Government (the SFG) was inaugurated.
[14]
Between 2013 and 2015, the SFG and African Union forces waged
campaigns against Al-Shabaab and
other insurgent groups, recapturing
towns, and villages. Effectively, so the appellants alleged,
Al-Shabaab still retains control
of much of South and Central
Somalia.
[15]
The United Nations sanctioned a further African Union troop surge in
Somalia between July 2015
and May 2016. The appellants contended,
with reference to a Danish Immigration Services report, dated May
2015, that Mogadishu
is presently only nominally under government
control and is struggling to provide basic security to its
population. The appellants
pointed out that notwithstanding that
assessment, Kenya and some European countries started deporting
refugees back to Somalia
from 2013 already. They noted that the UNHCR
and prominent human rights groups have condemned the forced return of
refugees to
Somalia. So, for example, Amnesty International, in a
statement during October 2014, condemned such actions. The relevant
part
of the report quoted by the appellants reads as follows:
‘
Countries
should under no circumstances attempt to return individuals to south
and central Somalia as the fragile security conditions
have not led
to a fundamental, durable and stable change.’
The
UNHCR guidelines published in 2014 were in similar vein.
[16]
The appellants asserted, emphatically, that South and Central Somalia
remained in a state of
civil war and that the need to protect
Somalian refugees remains. Moving from the
generalised
statements concerning conditions in Somalia, the
appellants proceeded to deal with the individual circumstances of the
eight asylum
seekers. Seven of them hail from Mogadishu. The first
alleged that he had lost his mother and sister due to rocket fire
during
2007. Two years later, whilst employed by an NGO, he received
an anonymous telephone call threatening his life. This, it was
alleged,
was in line with the
modus
operandi
of Al-Shabaab. He went on to
describe how this caused him to terminate his services with the NGO.
In 2009, his brother-in-law,
who worked for a German NGO and who
supported him financially, was murdered. This forced him to return to
work with the NGO, his
erstwhile employer. He claimed that late in
2009 he and a friend were kidnapped and blindfolded and taken to an
Al-Shabaab prison,
south of Mogadishu, where they received daily
beatings and were warned not to work for the government. After two
weeks, he escaped
and fled to a government-controlled district of
Mogadishu. He was later arrested on suspicion of being a member of
Al-Shabaab and
was held in detention for three days where he was
beaten by government officials. His sister managed to negotiate his
release during
2010. Thereafter he started saving money to fund his
escape from Somalia. He left Somalia in 2011 and arrived in South
Africa on
13 March 2011.
[17]
The second asylum seeker alleged that he had also been victimised by
Al-
Shabaab. He owned a small stall in
Bakaara market, which is Mogadishu’s largest marketplace.
During 2006, a rocket landed
in the market leaving him with shrapnel
wounds. A year later, a bomb landed approximately 20 metres away from
his stall, resulting
in casualties. He was traumatised by this. In
2009, Al-Shabaab raided his home, killing his friend and abducting a
neighbor. He
too received an anonymous threatening telephone call.
This was because it was claimed that he worked for the government. He
went
into hiding and used money from the sale of his business to
escape from Somalia. He left Somalia in October 2009 and arrived in

South Africa on 7 February 2010.
[18]
The third asylum seeker stated that he had left Somalia to escape the
combined threats of Al-Shabaab
and government forces. In May 2009,
during the time that Al-Shabaab controlled many districts in
Mogadishu, he was arrested and
blindfolded by government soldiers.
Thereafter, he was interrogated about whether he was a member of
Al-Shabaab. During that time,
he was subjected to beatings. He was
subsequently released when family members paid a bribe. In August
2009, after he had returned
to his employment at the Bakaara market,
he was approached by Al-Shabaab, seeking to recruit him. He refused
their offer. Sometime
thereafter, he was arrested by members of
Al-Shabaab, who took him to their training camp. This time he was
coerced into joining
them. He used a visit to his family to plot an
escape to Kenya, from where he travelled to South Africa. He left
Somalia in October
2009 and arrived here during 21 January 2010.
[19]
The fourth asylum seeker fled Somalia, allegedly, to escape forced
recruitment by Al-Shabaab.
He too lived in Mogadishu during a period
of great political instability and experienced the conflict between
warring factions.
He claimed that in May 2010 Al-Shabaab called at
his home and demanded he join them. He told them he would seek his
parents’
approval. During June 2010, they returned but he hid
from them. He subsequently fled Somalia arrived in South Africa on 28
June
2010.
[20]
The fifth asylum seeker, like the fourth, claimed that he had been
subjected to Al-Shabaab’s
forced recruitment drive in
Mogadishu. He left Somalia during August 2007 and arrived in this
country during December 2007.
[21]
The sixth asylum seeker stated that his brother was killed by
Al-Shabaab during March 2007. The
sixth asylum seeker claimed that he
had witnessed many battles and had lived in Somalia in constant fear
of his life. In October
2008, he was shot in the upper thigh, after
being caught in crossfire. He was admitted to hospital where he
remained until he was
discharged in June 2009. He left Somalia in
October 2009 and arrived here in December 2009.
[22]
The seventh asylum seeker and the only woman in the group had her
home hit by a grenade during
2006, killing two of her eight children
and leaving her with severe injuries. After she was discharged from
hospital, she decided
to leave Mogadishu and moved south, near the
town of Dhobley, where there were also ongoing battles. She was
subsequently injured
in an explosion in Dhobley. In 2008, she moved
once again to a camp of internally displaced persons. The combination
of civil war,
the constant danger of injury and death and severe
deprivation, so she claimed, compelled her and her two daughters to
leave Somalia.
They arrived in South Africa in May 2010.
[23]
The eighth asylum seeker, unlike the others, was born in a rural area
outside the port city of
Kismayo in Southern Somalia. He belonged to
a nomadic family that kept livestock. In 2006, his family was
displaced by fighting
between insurgents and government forces,
causing them to relocate to a town near the Kenyan border, outside
the town of Dhobley.
In 2008, his mother was killed in crossfire. In
2011, his uncle was caught up in a battle and was killed. Soon
thereafter his cousin
was killed in Dhobley by Al-Shabaab. He fled
Somalia in 2012 and arrived in South Africa in June that year.
The
refugee status determination process
[24]
In their affidavits the eight asylum seekers described the refugee
status determination process
that each had been subjected to and set
out the attendant circumstances. Each had completed the standard
application form for refugee
status at a Refugee Reception Office.
These were required to be completed in English. None of them, at the
time, was fluent in
that language. Even though almost all of them
were provided with an interpreter, the quality of the interpretation,
so they alleged,
was wanting. One of them was not provided with any
interpreter at all.
[25]
They claimed that their applications were then considered by Refugee
Status Determination Officers
(RSDOs). It is not clear whether all of
them were afforded an interview, and those who could recall an
interview stated that the
interviews were cursory and suffered from a
lack of proper communication. Their applications were subsequently
all rejected by
the RSDOs. Consequently, the eight asylum seekers
noted appeals to the RAB. They submitted that an appeal before the
RAB is a wide
appeal, in that it is not confined to the record of the
decision of the RSDO. Put differently, it amounts to a hearing
afresh.
Thus, so they contended, it was obligatory for the RAB to be
proactive. It was submitted that the RAB had a duty to adequately
question asylum seekers and to conduct further research so as to have
as full a picture as possible to reach a decision on each
of their
applications.
[26]
The appellants noted that their appeals conducted before the RAB were
brief, averaging between
20 to 30 minutes and that questioning was
limited. They were all required to provide their own interpreters.
Many brought acquaintances
to assist them. Two of them recruited
other asylum seekers to assist. Communication was thus poor. In the
result, all their appeals
were dismissed. The RAB’s ‘judgments’
were, according to the appellants ‘startlingly similar, with
large
portions of the reasoning repeated verbatim, down to the same
spelling and grammatical errors’. The RAB was accused of using

a pro forma ‘judgment’ with limited consideration of the
individual circumstances of each of the eight asylum seekers.
[10]
The
grounds of review and the extensive relief sought
[27]
The dismissal of the appeals by the RAB is what led to the
application for review in the high
court. The grounds of review were
stated as follows:
‘
141
As indicated above, the RAB’s decisions share at least four
common errors of law, fact and procedure:
141.1
First, the RAB applied the wrong test, in that the members
misinterpreted and misapplied
section 3
of the
Refugees Act;
141.2
Second, the RAB applied the wrong burden of proof, in that the
members ignored the duty to adopt a shared burden;
141.3
Third, the RAB adopted the wrong approach to credibility findings, in
that the members misunderstood the purpose
of credibility findings
and adopted an overly narrow understanding of credibility;
141.4
Fourth, the RAB decisions were all procedurally unfair, as they
breached the principle of
audi
alteram partem
.’
[28]
The grounds were expanded on as follows. First, in respect of the
wrong test allegedly being
applied by both the RSDOs and the RAB, it
was contended that s 3
(a)
of the Act mirrors the standard
definition of refugee status under the United Nations Convention
Relating to the Status of Refugees
(the 1951 Convention) and,
secondly, that s 3
(b)
reflected an expanded definition of
refugee status, which neither the RSDOs nor the RAB appreciated. The
appellants also pointed
out that s 3
(b)
was in line with
Article 1(2) of the Organisation of African Unity Convention
Governing the Specific Aspects of Refugee Protection
(the OAU
Convention). At this point, it is necessary to have regard to the
provisions of s 3, which reads as follows:
‘
Subject
to Chapter 3, a person qualifies for refugee status for the purposes
of this Act if that person–
(a)
owing to a
well-founded fear of being persecuted by reason of his or her race,
tribe, religion, nationality, political opinion or
membership of a
particular social group, is outside the country of his or her
nationality and is unable or unwilling to avail himself
or herself of
the protection of that country, or, not having a nationality and
being outside the country of his or her former habitual
residence is
unable or, owing to such fear, unwilling to return to it; or
(b)
owing to
external aggression, occupation, foreign domination or
events
seriously disturbing or disrupting public order in either a part or
the whole of his or her country of origin or nationality
,
is compelled to leave his or her place of habitual residence in order
to seek refuge elsewhere; or
(c)
is
a dependant of a person contemplated in paragraph
(a)
or
(b)
.’
(My
emphasis).
[29]
Developing the thesis that the wrong test was applied, the appellants
contended that s 3
(b)
of the Act made it clear that
persecution under s 3
(a)
was not the sole criterion for
refugee status. Even if there had been no persecution, the appellants
submitted that s 3
(b)
required a decision-maker to determine
if an asylum seeker was compelled to leave their country of origin
due to ‘external
aggression, occupation, foreign domination or
events seriously disturbing or disrupting public order’ either
in part or the
whole of the person’s country of origin. The
appellants contended that this fundamental misconception is
demonstrated when
one examines the ‘judgments’ of the
RAB’. They refer to the following identical statements in ‘six’

of the eight judgments of the RAB:
‘
149.1
Six of the eight judgments contain the identical statement, making
persecution a necessary condition
for refugee status:
“
The
appellant in casu needs to show that he/she left his/her country for
specifically politically motivated reasons,
should
appellant fail to show this, appellant’s refugee claim will be
rejected
. . . [R]efugee law is essentially a means of preventing the sending
back of an individual to a state in which a risk of persecution
on
political grounds or opinion exists.”’
A reading of the record shows
that this appears in five, not six of the RAB decisions.
[30]
Similarly, in respect of the remaining judgments, the following
appears:
‘
149.2
The remaining three judgments also made persecution the focus,
describing the test in virtually identical
terms:
“
The
appellant claims that he left his country of origin because of civil
war.
He
failed to demonstrate that he was harmed or persecuted in any way
.
He merely relied on the fact that he feared to be killed. There was
nothing which shows a sustained and systemic violation of
his human
rights.
”
And:
“
The
appellant claims that she was persecuted because of the civil war
that occurred in the year 2006. She claimed that her life
was in
danger . . . [
S]he
failed to demonstrate that she was harmed or persecuted in any way
.
She has merely relied on the general instability in her home country
but there is nothing which shows a sustained and systematic
violation
of her rights.
”’
[31]
The appellants contended that the repeated references by the RAB to
‘sustained and systemic’
violations, in any event,
indicate a misunderstanding of the meaning of ‘persecution’.
According to the appellants,
the RAB failed to properly apply s 3
(b)
of the Act, ignored it, and treated s 3
(a)
as the sole
criterion for asylum. It was submitted that had the RAB properly
applied s 3
(b)
, it would have recognised that the conditions
in Somalia compelled the eight asylum seekers to leave Somalia and
that they qualified
for asylum status in South Africa. They took the
view that the ongoing civil war in Somalia, the threat of Al-Shabaab,
and the
weak state of the government ‘undoubtedly constituted
“events seriously disturbing or disrupting public order”.’
[32]
In support of its proposition that the RAB took an unjustifiably
restricted view of persecution,
the appellants pointed to the death
threats and attempts at forcible recruitment by Al-Shabaab and the
detention by government
forces of at least five of the eight asylum
seekers, which they contended qualified as persecution. They
submitted that the RAB
unjustifiably limited itself to considering
whether there was persecution on grounds of political opinion.
[33]
The next ground of review raised by the appellants was that the RAB
erred in applying the wrong
burden of proof. The RAB was accused of
wrongly placing the burden of proof, in relation to satisfying the
requirements for refugee
status, exclusively and unfairly on the
shoulders of the eight asylum seekers. In this regard, it was
contended that our courts
have endorsed the concept of a ‘shared
burden, which places a duty on the decision-maker to adopt an
inquisitorial and proactive
approach in evidence gathering’.
This they said was consistent with the UNCHR’s Handbook and
Guidelines on Procedures
and Criteria for Determining Refugee status.
The position adopted by the appellants was that the shared burden
principle ties in
with a wide appeal before the RAB.
[34]
Additionally, the appellants pointed to the provisions of s 26 of the
Act in terms of which the
RAB had powers; to invite the UNHCR to make
oral and written representations; to refer a matter to the Standing
Committee for further
investigation; request the attendance of any
person who, in its opinion, is in a position to provide further
information; and to
request an applicant to appear before it to
provide such further information that it may deem necessary. The
appellants alleged
that there was no indication that the RAB was
alive to the shared-burden principle.
[35]
A third and further ground of review was that the RAB had adopted the
wrong approach in assessing
the credibility of the eight asylum
seekers and over-emphasised its importance. The contentions in this
regard were as follows.
First, that the RAB, impermissibly, made
credibility the sole prerequisite for upholding a claim to refugee
status. Second, that
it adopted an overly restrictive approach to
credibility, ‘focusing solely on alleged inconsistencies
between statements’
provided to the RSDOs and the RAB. In
relation to this ground of review, the appellants referred to the
following part of the RAB
judgments in all eight matters:
‘
In
Principles of International Refugee Law the learned author, Guy S
Goodwin-Gill states the following: “One of the hardest
tasks in
refugee determination, and one that is central to the process, is
assessing the credibility of the applicant . . . The
decision-maker
must assess not only credibility of the applicant, but also the
credibility of the story in itself . . .”
This
means that the Board must be convinced that the appellant is telling
the truth before it can consider the principal issues
.
’
The
appellants were adamant that this statement has no basis in the works
of the cited author or in any other work on refugee law.
This, they
submitted, constituted a fundamental error of law on at least two
levels.
[36]
The first was that the RAB suggested that credibility was a
prerequisite for refugee status,
whereas our courts have held that it
is but one of a range of factors to be considered. The UNCHR Handbook
also advocates such
a holistic approach, indicating that credibility
should assume prominence only when there is no external evidence to
support an
applicant’s claim.
[37]
Second, the appellants took issue with the statement by the RAB that
it ‘must be convinced
that the appellant is telling the truth’.
They submitted that the burden of proof in refugee claims is less
than a balance
of probabilities and certainly less than the certainty
that the RAB demanded.
[38]
The appellants went further and criticised the RAB for elevating
coherence of testimony as the
sole requirement for a positive finding
on credibility. In this regard, it referred to the discrepancies,
held against the eight
asylum seekers, between their oral testimony
and that which appeared in the application form and with what was
communicated during
the RSDO hearing.
[39]
A fourth ground of review was that of procedural unfairness.
Principally, the complaint was that
the
audi alteram partem
rule (the
audi
rule) was not observed. It was contended that
there was no indication that prejudicial country of origin
information was placed
before the eight asylum seekers to enable them
to contest it. That the
audi
rule was flouted, so said the
appellants, was evident from all eight judgments. The eight judgments
recorded that the RAB had consulted
objective country of origin
information before making their decisions but does not indicate that
this was placed before the eight
asylum seekers to refute.
[40]
The appellants contended that in so far as adverse credibility
findings were made based on inconsistencies,
those should have been
put to the eight asylum seekers for a response.
[41]
With reference to the grounds of review the appellants submitted that
a case had been made out
for special circumstances, which warranted
the court hearing the review to substitute the decision of the RAB
without referring
the matter back and that further delay would cause
the eight asylum seekers unjustifiable prejudice, particularly if
regard is
had to the considerable time delay from the time that they
first made application for asylum status.
[42]
As indicated in para 5 above, the appellants also sought a structural
interdict, based on what
they considered to be sufficient proof of
systemic deficiencies in the decision-making processes of the RAB. On
this aspect it
contended that it would be just and equitable for the
court to direct the Minister and the Director-General to conduct an
investigation
into the causes and extent of the problem, and to
prepare a plan to address these problems and to report back to the
court. The
systemic deficiencies they submitted were those of a
repeated pattern of errors in decision-making of the RAB, which they
said
went beyond a coincidence. On this issue they cited criticisms
by academics and practitioners and provided supporting affidavits
by
refugee law practitioners. The errors relate to the misapplication of
all the issues of law on which the appellants relied for
the review
in the high court. The appellants sought to show that the RAB
repeatedly failed to have regard to the provisions of
s 3
(b)
of the Act in deciding applications for refugee status. The
appellants also referred to decisions of our courts showing how the

RAB had misunderstood crucial concepts of refugee law and to repeated
findings by courts that procedural rights were flouted.
[43]
The principal deponent on behalf of the appellants recorded how he
had attempted to engage with
the RAB on the high number of rejections
of appeals by asylum seekers from Somalia. The stance adopted by the
RAB was that the
political situation in Somalia had stabilised,
which, according to the appellants, does not accord with the factual
situation on
the ground. In relation to the conditions in Somalia,
the appellants provided a British Broadcasting Corporation timeline,
stretching
from the thirteenth century to May 2015, which indicated
continued strife, presently mainly due to acts of aggression by
Al-Shabaab.
The application in the high court was launched in
December 2015. The conditions described are thus those that prevailed
more than
five years ago.
[44]
In seeking the extensive relief referred to in paragraph 4 above, the
appellants explained that
setting the RAB decisions aside and
referring them back for reconsideration would cause unjustifiable
prejudice to the asylum seekers.
They pointed out that this Court
would, in the prevailing circumstances, be justified in substituting
the RAB’s decision,
especially since it had all the relevant
information at hand. The appellants contended that referring the
matter back would, considering
that there was a backlog in RAB
appeals in 2015, of some 100 000 cases, result in further delays
and cause the asylum seekers
undue hardship. The asylum seekers had
applied for refugee status between three and six years before the
review application was
launched.
[45]
In relation to the structural interdict sought, the appellants
contended that the RAB was obdurate
and persisted in misapplying the
law and failing to follow fair procedure. This, despite repeated
attempts by relevant role-players
to persuade them otherwise. They
contended that the extensive relief sought was justified. That, in
sum, was the case for the appellants.
[46]
The appellants provided all eight of the RAB ‘judgments’.
They provided some of the
completed application forms and decisions
of the RSDO. Some of the written appeals lodged by the eight asylum
seekers were provided.
Very few of the interview notes by either the
RSDOs or the RAB were provided. We were informed by counsel on behalf
of the appellants
that this was due to a ‘patchy’ Rule 53
record having been provided.
An
Illustration of how the applications for refugee status were dealt
with
[47]
The application form and the other documentation related to the
eighth asylum seeker are illustrative
of how the applications were
dealt with. The relevant details are as follows. The reason for
applying for asylum set out in his
application form was curt:‘Because
of the civil war in Somalia’. The RSDO interview notes record
the following:
‘
The
applicant stated that he left his country because the Al-Shabaab and
the interim Government are fighting and people are being
killed. He
stated that the Al-Shabaab bomb his house while his parents and
brother were in the house and they died at the same
time in 2008. He
stated that he was at a location visiting a friend when the
Al-Shabaab bomb his house and when he came back, he
found that they
were dead and the neighbours told him that that the Al-Shabaab bomb
the house. He stated that from 2008 until 2012,
the time he left he
was in Somalia living in fear as the fight is still going on and he
could not live in fear for the rest of
his life.’
In
response to the question why he was applying for asylum, he replied
that it was for ‘protection’. Asked about the
measures he
took to solve the problems he faced he replied that he left the
country. As to why he did not want to return to Somalia,
he replied
that he might be killed.
[48]
In the reason for its decision the RSDO stated the following:
‘
According
to the country of information of Somalia published by the New York
Times on the 04 April 2012, the famine eased, the violence
ebbed and,
in 2012, Somalia began showing signs of hope. Mogadishu, the capital,
which had been reduced to rubble during years
of civil war, started
to make a remarkable comeback. With the Shabab having withdrawn from
the City in August. In early April 2012,
the city was enjoying its
longest epoch of relative peace since 1991: eight months and counting
and on August 2012, Somalia has
elected a new Government which has
replaced the Transitional Government. I found that there is no
reasonable ground to believe
that you will be forced to join the
Alshabab when you are returned to your country.
’
[49]
In his affidavit in support of his appeal to the RAB, the eighth
asylum seeker stated only the
following:
‘
There
is no stability and no peace in Somalia. Young men are forced to join
Al-Shabaab and when you refuse you might be killed
.’
[50]
The relevant part of the RAB decision is set out hereafter:
‘
Appellant
was personally affected by the political instability in Somalia when
the said Al Shabaab & government soldiers fought
in the very same
bush (just outside Kismayo) where appellant were looking after his
camels; not the appellant nor any of his camels
were injured in the
process. This is in essence what compelled the appellant to leave his
country of origin.
’
[51]
Under the heading ‘Credibility’ the following appears:
‘
The
Appeal Board accordingly assessed the credibility of the appellant’s
story and makes the following remarks in passing.
[a]
Appellant’s appeal hearing differed materially from his earlier
information captured in his DHA-1590 & RSDO decision.
There was a
bare denial on the appellant’s side when discrepancies were put
to him; appellant at times conveniently blamed
the interpreter.
[b]
An internationally acclaimed refugee law expert:
James Hathaway
(The Law of Refugee Status p 101)
describes persecution as
the sustained and systemic violation of basic human rights resulting
from failure of state protection.
[c]
The
Handbook and Guidelines on Procedures and Criteria for Determining
Refugee Status p30 para 203 & 204
states
the following on the issue of
benefit
of doubt
.
“
After
the applicant has made a genuine effort to substantiate his story
there may still be a lack of evidence for some of his statements.
It
is hardly possible for a refugee to “prove” every part of
his case and, indeed, if this were a requirement the majority
of
refugees would not be recognized. It is therefore frequently
necessary to give the applicant the benefit of the doubt.
The
benefit of the doubt should, however, only be given when all
available evidence has been obtained and checked and when the
examiner is satisfied as to the applicant’s general
credibility. The applicant’s statement’s must be coherent

and plausible, and must not run counter to generally known facts’’.’
[52]
Under the heading ‘Ruling’ the following appears:
‘
[a]
The appellant never made out a case to justify persecution on the
grounds envisaged in S3 of Act, 130 of 1996. The appellant
throughout
his case was silent on the issue of his fear of being persecuted, be
it the past, present and or the future. There was
no link between the
appellant’s mother’s death & appellant’s
relocation to SA more than four years later.
[b]
Appellant entered SA to benefit from the rights afforded to refugees
under the
Refugees Act, 130/1998. Appellant
fabricated his claim to
fall within the parameters of refugee law.
[c]
In the circumstances the Appeal Board finds that the appellant has
not discharged the burden of proof which rested on him. The

appellant’s unwillingness to return to the Somalia, based on
this factual enquiry, is not based on a well-founded fear of

persecute. Appeal Board accordingly finds that the appellant does not
have a reasonable fear of persecution should he return to
the
Somalia.
[d]
The appellant when asked what would happen to him should he returned
to Somalia replied that the fighting problem still exists
even now in
Somalia. The appellant failed to make out an individual case that it
is unsafe for him to return to Somalia. The Appeal
Board finds that
the appellant’s case is not coherent and plausible &
appellant accordingly does not deserve to be given
the benefit of the
doubt.
’
The
basis for opposition by the first four respondents
[53]
The respondents were adamant that the application for review was an
appeal, disguised as a review.
They accepted that s 3 of the Act
provides the criteria for refugee status. They also referred to s 4
of the Act, which deals with
exclusion from refugee status. They
contended that this demonstrated, starkly, that the recognition of
refugee status was subject
to qualifications and limitations.
[54]
In dealing with s 26 of the Act and the then applicable regulation 14
of the Regulations
[11]
under the Act, the respondents took the view that the power to decide
appeals from decisions of RSDO vested in the RAB and what
the
appellants sought in the high court had the effect of divesting it of
that power, which it was best suited to exercise. It
was submitted
that by itself, assuming the power to decide the appeal, the court
would impermissibly be breaching the principle
of the separation of
powers.
[55]
The respondents did not engage with any of the appellants’
factual assertions concerning
the irregularities and deficiencies
complained of, choosing instead to insist that what the appellants
sought was an appeal on
the merits of the decisions of the RAB, which
they were not entitled to bring.
[56]
In the concluding paragraph of their affidavit opposing the relief
sought, the respondents stated
the following:
‘
The
Applicants in truth have brought an appeal cloaked as a review. The
issue however is not whether first respondent is thought
to be wrong.
It is whether it has acted unlawfully, firstly because it has not
complied with the
Refugees Act to
the level required and secondly as
first respondent’s decisions are polycentric and the Court
should not interfere with them
more so as they have been made
lawfully.’
The
respondents took the view that they had acted strictly in terms of
the provisions of the Act and that the decisions by the RAB
were not
susceptible to challenge.
The
judgment of the high court
[57]
It is against the background set out above that Mlambo JP adjudicated
the matter. First, he acknowledged
the world-wide displacement of
people due to armed conflict, and the hardships that ensued. He had
regard to the
United Nations Convention Relating to the Status of
Refugees of 1951
(the UN Convention) and
the Organisation of
African Unity Convention Governing the Specific Aspects of Refugee
Protection of 10 September 1969
(the OAU Convention). He also
took into account that South Africa had ratified both the UN
Convention and the 1967 Protocol, as
well as the OAU Convention.
[58]
The high court recognised that the purpose of the Conventions was to
provide protection to refugees
and to regulate how they are treated,
and more particularly, in relation to their applications for refugee
status. Furthermore,
Mlambo JP stated the following:
‘
An
important principle common to the Conventions is the incorporation of
the
non-refoulement
principle
which effectively means that no person may be refused asylum in
another country where that person faces real threats to
his or her
life especially life threatening persecution in such person’s
country of origin should he be refused asylum.’
He
appreciated that the
non-
refoulement
principle has been entrenched by the legislature in s 2 of the Act.
In this regard he took into account the decision of the
Constitutional
Court in
Ruta
v Minister of Home Affairs,
[12]
where the following was said:
‘
[24]
This is a remarkable provision. Perhaps it is unprecedented in the
history of our country’s enactments.
It places the prohibition
it enacts above any contrary provision of the
Refugees Act itself
–
but also places its provisions above anything in any other statute or
legal provision. That is a powerful decree. Practically
it does two
things. It enacts a prohibition. But it also expresses a principle:
that of
non
refoulement
,
the concept that one fleeing persecution or threats to “his or
her life, physical safety or freedom” should not be
made to
return to the country inflicting it.
[25]
It is a noble principle – one our country, for deep-going
reasons springing from persecution
of its own people, has
emphatically embraced. The provenance of
section 2
of the
Refugees
Act lies
in the Universal Declaration of Human Rights (Universal
Declaration), which guarantees “the right to seek and to enjoy
in
other countries asylum from persecution”.’
[59]
The high court went on to deal with the merits of the review
application. It took into account
that in terms of s 14 of the Act,
the RAB performs an adjudicatory function. That section of the Act
reads as follows:
‘
14.
(1) The Appeal Board must –
(a)
hear
and determine any question of law referred to it in terms of this
Act;
(b)
hear and
determine any appeal lodged in terms of this Act;
(c)
advise the
Minister or Standing Committee regarding any matter which the
Minister or Standing Committee refers to the Appeal Board.
(2)
The Appeal Board may determine its own practice and make
its own rules.
(3)
Rules made under subsection (2) must be published in the
Gazette
.’
[60]
In considering the bases for the review, the high court thought it
important to keep in mind
that the RAB was ‘constrained to the
materials before it when considering the appeals’. In this
regard the high court
noted that most of what was referred to and
relied on by the appellants in their affidavits filed in support of
the review application
was not before the RAB or indeed the RSDOs. It
proceeded to consider the treatment of each appeal by the RAB against
the factual
material before both. It is necessary to repeat the
entirety of the recital by the high court of the information on which
the RAB
decided each appeal as well as the bases of their decisions.
That recital is set out hereafter.
[61]
Mlambo JP commenced with the first asylum seeker:
‘
[18]
The
second applicant informed the RAB that he left Somalia in January and
arrived in South Africa in March 2011 and applied for
asylum. This
applicant stated in his DHA Form that he left Somalia due to the
civil war there. He also mentioned this when he applied
for asylum,
and this much is evident in the hearing notes of the RSDO who dealt
with his asylum application. The RAB also recorded
that it appeared
from the RSDO hearing notes that the second applicant was never
persecuted by Al-Shabaab or by Government forces,
that he left
Somalia because
"there
is a lack of peace and stability. He fled his country of origin and
came to SA lo seek protection
.
During the RAB hearing, the record shows that the second applicant
also asserted the civil war as the reason why he left Somalia.
He is
recorded as having stated that his life was in danger and that he was
invited by his brother to come to South Africa. It
is also recorded
that he was never recruited by either Al-Shabaab or by the Somali
Government forces.
[19]
The
RAB then, in assessing the second applicant's appeal stated –
“
The
applicant claims that he left his country of origin because of civil
war. He failed to demonstrate that he was harmed or persecuted
in any
way. He merely relied on the fact that he feared to be killed. There
was nothing which shows a sustained and systemic violation
of his
human rights. The appellant managed to stay in country for eight
months nothing happened to him.
”
The
RAB then went on to find, that the appellant had suffered no
"persecution or harm in terms of section 3 ".
The
RAB concluded with the following statement –
"The
Board finds that he does not have a well-founded fear of persecution.
The appellant was not compelled to leave his country
of origin, he
managed to stay in the same region after his brother's death, 2007
nothing happened to him. There is nothing from
his evidence which
indicated that he was persecuted in his country of origin. The board
finds that he came to South Africa seeking
a better life.
"’
[62]
The high court then went on to deal with each of the remaining asylum
seekers in turn:
‘
[20]
ln respect of the third applicant, the RAB recorded that he was a
resident of Mogadishu. According
to this recordal, this applicant
told the RAB that he left Somalia in 2010 as a result of the war and
to feeling insecure. It is
also recorded that he mentioned that one
of his acquaintances in Mogadishu was allegedly killed by AI-Shabaab
after having received
a phone call two weeks prior to being killed.
The third applicant also allegedly received a phone call subsequent
to his acquaintance's
demise and assumed that whoever was phoning him
intended to kill him as well. This applicant then, fearing for his
life decided
to leave Mogadishu for South Africa.
[21]
The RAB summed up the matter by first finding that the factual
background sketched in the paragraph above,
is what compelled the
applicant to flee Somalia. To the RAB the killing of the applicant's
acquaintance could not have compelled
him to leave Mogadishu. The RAB
–
"The
irony of the appellant's claim is that his entire family currently
resides peacefully in Mogadishu; the Board therefore
infers that it
is safe for appellant to return to Mogadishu. The appellant is
however not prepared to go back to Somalia as he
fears that whoever
phoned him will kill him, fears nursed by the appellant in this
regard Is not reasonable and or "well-founded".
According
to the RAB this applicant never made out a case to justify
persecution on the grounds envisaged in section 3 of Act. The
RAB
then concluded that the applicant had not mentioned that he feared
being persecuted,
"be it the past, present and or the
future".
The RAB also concluded that nothing happened to
this applicant which compelled him to flee Somalia for South Africa
and dismissed
his appeal.
[22]
In the case of the fourth applicant the RAB recorded that he did not
belong to a political party
nor was he ever arrested, that at all
material times he resided in Mogadishu. He testified that Al-Shabaab
recruited young men
to join the organisation and that they killed
those who refused to join the organisation. The RAB recorded that he
decided to leave
Somalia before being so approached by AI-Shabaab, in
search of a safe and or better life. He was assisted by his uncle,
financially
to leave Somalia. The RAB further recorded that his uncle
was subsequently allegedly killed by AI-Shabaab during December 2013,

apparently after he admitted to Al-Shabaab operatives during
interrogations that he had assisted the fourth applicant to go to

South Africa. The RAB recorded the following -
"It
was put to the appellant that the death of his uncle was irrelevant
to his asylum claim
due
to the long lapse between events. The irony of the appellant’s
claim is that his entire family currently resides peacefully
in
Mogadishu, the Board therefore infers that it i[s] safe for appellant
to return to Mogadishu. Appellant raised new evidence
that he was
arrested and or abducted by Al-Shabaab (between Jan – April
2009) for a period of two weeks where after he managed
to escape.
Appellant blamed the new evidence firstly on the interpreter &
secondly admitted that he forgot to mention it at
an earlier stage.
During the course of the proceedings it also transpired that in
addition to Al-Shabaab the Government also wanted
appellant to join
them; in fact, the Government offered appellant a job if appellant
joined them & fought against A1-Shabaab
in turn".
[23]
In
its conclusion the RAB stated that –
“
The
appellant never made out a case to justify persecution on the grounds
envisaged in section 3 of the act... [t]he appellant failed
to make
out an individual claim of what compelled him to leave Mogadishu
...ln the circumstances the Appeal Board finds that the
appellant has
not discharged the burden of proof which rested on him. The appellant
is unwilling to return to Mogadishu as he claims
that the presence of
Al-Shabaab is everywhere in Somalia and that they are still killing
people, conceding at the same time that
his entire family is still
residing peacefully in Mogadishu. It was the appellant's testimony
that he left before anything could
happen to him. The Appeal Board
finds that the appellant’s case is not coherent and plausible
and appellant does not deserve
to be given the benefit of the doubt.
”
[24]
Regarding
the fifth applicant, the RAB recorded that he also did not belong to
a political party and that he was at no stage arrested.
The RAB
recorded that he testified that there was a civil war in Somalia;
that there were a lot of political parties in Somalia;
that the
political parties were fighting with the Government; that Al-Shabaab
came to appellant's house during the beginning of
2010 and ordered
him to join the organisation and he refused. The RAB further recorded
that he left for Kenya where he remained
for ten days. Furthermore,
the following was recorded by the RAB –
"Appellant
in his DHA-1590& RSDO hearing stated that he left Somalia as a
result of lack of peace and stability; that he
came to SA to get
peace and an education; that he cannot stay in SA without proper
documentation."
The
RAB referred to this applicant's evidence as:
"[N]ot
entirely consistent with appellant’s oral evidence. Appellant
in his notice of appeal amongst other things averred
that when the
situation in Somalia became unbearable for him, he decided to leave
looking for a place of safety and security away
from persecution.
Appellant was silent on what happened to him in Somalia that
compelled him to leave. "
[25]
The
RAB concluded its' assessment of this applicant's appeal with the
following findings
"The
Board is satisfied that appellant does not face a reasonable
possibility of persecution should be return to Mogadishu.
It was not
appellant's testimony that he left Mogadishu as a result of events
seriously disrupting and or disturbing the public
order in Mogadishu.
The once-off attempt by Al-Shabaab did not compel appellant to leave
Mogadishu. The Board cannot exclude the
possibility that appellant is
an economic migrant in that he voluntarily left Somalia to take up
residence and employment elsewhere.
The Board finds corroboration of
this fact when appellant in his DHA-1590 and RSDO hearing makes
mention of the fact that he came
to SA to get an education and that
he is applying for asylum as he cannot stay without proper documents
in SA. In the circumstance
the Appeal Board finds that the appellant
has not discharged the burden of proof which rested on him.
"
[26]
It
appears from the record that the sixth applicant informed the RAB
that he left Somalia during 2007, then aged 26, claiming that
the
Government in Somalia was defeated in 1991, that Somalia has been
uncontrollable ever since and that different tribes were
fighting
with each other in the whole of Somalia and Mogadishu. The applicant
told the RAB that he was personally affected by the
fighting in that
different tribes wanted him to join them but he refused. The RAB then
states –
"Appellant
embarked on his journey to SA 16 years post 1991 as he was too young
to leave earlier. This is background information
of what made
appellant leave Somalia during 2007. The standard of proof is that of
a "reasonable risk" and must be considered
in the light of
all the relevant circumstances i.e. past persecution and a
forward-looking appraisal of risk. The appellant in
casu needs to
show that he left his country for specifically politically motivated
reasons, should appellant fail to show this,
appellant’s
refugee claim will be rejected. Taking into account that refugee law
is essentially a means of preventing the
sending back of an
individual to a state in which a risk of persecution on political
grounds or opinion exists. Appellant failed
to highlight an incident
in Mogadishu that compelled him to leave for SA. Appellant made an
informed decision to move to SA as
an adult. Appellant's family is
currently residing in Mogadishu. The Board finds that nothing
happened to the appellant that compelled
appellant to leave
Mogadishu. Appellant did not explain when, how & under
circumstances the different tribes wanted appellant
to join them.
Appellant was only threatened to be beaten when he refused to join
the respective tribes. The appellant never made
out a case to justify
persecution on the grounds envisaged in S3 of Act, 130 of 1998.
Appellant throughout his case was silent
on the issue of his fear of
being persecuted, be it the past, present and or the future. The
Board cannot exclude the possibility
that appellant is an economic
migrant. The perception is that people in SA have better life &
that SA is an economically viable
country to reside in. It was a
planned & calculated move on the part of the appellant to come to
SA during 2007. In the circumstance
the Appeal Board finds that the
appellant has not discharged the burden of proof which rested on him.
"
[27]
The
seventh applicant informed the RAB that he fled Somalia, in December
2009, because of the civil war, that his brother died in
the year
2007 as a result of the war between AI­Shabaab and the
Government. The RAB recorded that the applicant stayed for
two years
in Somalia after the death of his brother and that nothing happened
to him during that time and that he never relocated
elsewhere in
Somalia during that time. It is also recorded that he stated that he
subsequently fled to Kenya, Mozambique, Zimbabwe
until he arrived in
South Africa. The RAB recorded the following –
"The
appeal Board finds the appellant did not suffer persecution or harm
in terms of section 3 of the Refugee Act. The Board
further finds
that he does not have a well-founded persecution. The Appellant was
not compelled to leave his country of origin,
he managed to stay in
the same region after his brother's death in 2007 and nothing
happened to him. There is nothing from his
evidence which indicated
that he was persecuted in his country of origin. The Board finds that
he came to South Africa seeking
a better life. It is unlikely that
the appellant will face a reasonable possibility of harm or
persecution were he to return to
Somalia. The appellant on appeal
records can return safely to his country origin, there are areas
which are identified not to be
affected by civil war and are
government's control."
[28]
In
so far as the eighth applicant is concerned the RAB recorded that in
the DHA form and RSDO's notes this applicant stated that
there was a
civil war between Al-Shabaab and the Government since 2006, that her
family house was bombed and destroyed due to the
civil war, that her
father, brother and daughter were killed. She told the RAB that
because of the civil war she left Somalia and
went to Kenya, settling
on the border area between Kenya and Somalia for a period of two
years during which nothing happened to
her. She told the RAB that she
left Kenya because of the poor and unbearable living conditions and
starvation. The RAB recorded
that she stated that subsequent to
leaving Kenya during 2008, she went to Tanzania where she was
arrested and imprisoned for a
year and three months because she was
an illegal immigrant. The RAB further recorded that she stated that
in January 2010, she
returned to Kenya and then went back to Somalia
arriving there in April 2010. The RAB further recorded that she
stated that upon
her arrival in Somalia she noticed that there was
still instability although nothing happened to her upon her return.
Due to this
instability she decided to leave Somalia and travelled to
South Africa.
[29]
During her appeal hearing she stated that she came to South Africa to
seek protection. The RAB
recorded the following in respect of this
applicant –
"The
appellant claims that she was persecuted because of the civil war
that occurred in the year 2006, she claimed that her
life was in
danger. Her story lacks substance and she failed to demonstrate that
she was harmed or persecuted in any way. She has
merely relied on the
general instability in her home country but there is nothing which
shows a sustained and systematic violation
of her human rights. She
was in Kenya for a period of two years where nothing happened to her
and she left Kenya because of unbearable
living conditions and
starvation ...The Board finds that the appellant did not suffer
persecution or harm in terms of section 3
of the
Refugees Act. The
Board further finds that she does not have a well-founded fear of
persecution. The appellant in April 2010, she availed herself
to the
protection of her country of origin when she went back to Somalia.
The Board finds that nothing happened to her upon return
to her
country of origin. She was not compelled to leave her country of
origin. The Board further finds that she stayed in Kenya
for a period
of two years and was given protection by that country. There is
nothing from her evidence which indicated she was
persecuted in Kenya
because of her nationality. She left Kenya because she was seeking a
better life for herself and her children.
It is unlikely that the
appellant will face a reasonable possibility of harm or persecution
if she were to return to Somalia. The
appellant on appeal records
there is nothing that indicates that she was either tortured,
physical attacked or arrested while she
was in her country during
2010. She can return safely to her country of origin, there are areas
which are identified not to be
affected by civil war and are under
government's control."
[30]
As far as the ninth applicant is concerned the RAB recorded that he
mentioned that his mother
died in 2008 and that he does not know the
whereabouts of his father, that he had no education, did not belong
to a political party
and was never arrested by Government forces. The
RAB further recorded that this applicant herded camels when he lived
in Somalia
and that he left due to the fighting between AI-Shabaab
and Government soldiers. The applicant informed the RAB that he was
personally
affected by the political instability in Somalia when
AI-Shabaab and Government soldiers fought in the area where he was
herding
camels, just outside Kismayo, but neither he nor the camels
were harmed in that shootout.
[31]
The
RAB then, with reference to the version mentioned above, records -
"This
is in essence what compelled the appellant to leave his country of
origin. The appellant never made out a case to justify
persecution on
the grounds envisaged in
S3
of Act, 130 of 1996. The appellant
throughout his case was silent on the issue of his fear of being
persecuted, be it the past,
present and or the future. There was no
link between the appellant's mother death & appellant's
relocation to SA more than
four years later. Appellant entered SA to
benefit from the rights afforded to refugees under the
Refugees Act,
130/1998. Appellant
fabricated his claim to fall within the
parameters of refugee law. In the circumstances the Appeal Board
finds that the appellant
has not discharged the burden of proof which
rested on him. The appellant's unwillingness to return to the
Somalia, based on this
factual enquiry, is not based on a
well-founded fear of persecution. Appeal Board accordingly finds that
the appellant does not
have a reasonable fear of persecution should
he return to the Somalia. The appellant when asked what would happen
to him should
he return to Somalia replied that the fighting problem
still exists even now in Somalia. The Appeal Board finds that the
appellant's
case is not coherent and plausible & appellant
accordingly does not deserve to be given the benefit of the doubt."
[63]
Having dealt with the individual treatment by the RAB of each of the
eight asylum seekers, the
high court proceeded to deal first, with
the submission on behalf of the appellants, that the RAB had adopted
an overly restrictive
approach to the issue of ‘persecution’,
as provided for in s 3
(a)
of the Act. The high court went on
to hold that it was ‘immediately apparent’ that when
dealing with each appeal the
RAB focused on whether the asylum
seekers were personally exposed to conduct amounting to persecution
and whether each was exposed
to a personal threat causing him or her
to flee Somalia. The RAB considered whether the asylum seekers had
other family members
living with them when they decided to leave
Somalia and whether such family members would have experienced
similar threats as those
faced by them. The high court reasoned as
follows:
‘
The
basis for this approach is clear, if the civil war was the reason for
the asylum seekers to flee Somalia, clearly the violent
circumstances
presented by that armed conflict cannot be selective, everyone living
in the affected area would have been under
threat.’
[64]
The high court held that the finding by the RAB that there was no
threat to the lives
of the eight asylum seekers was based on the
evidence presented by them and that there was no restrictive approach
by the RAB on
the question of ‘persecution’. It found
that the eight asylum seekers failed to present evidence that the
personalised
threats endured giving them no
real choice but to escape Somalia.
[65]
Mlambo JP went on to find that the criticism on behalf of the
appellants that the RAB had failed
to apply the provisions of s 3
(b)
was also misconceived. In that regard, the high court stated that it
was clear from the reasoning of the RAB that it had applied
the
provisions of that subsection. The reasons provided for refusing the
appeal, so the high court held, indicated that s 3 had
been
holistically applied. It concluded that it was clear that the RAB had
applied its mind to the facts and bore in mind the provisions
of s 3
(a)
and
(b)
. The high court held it against the eight
asylum seekers that they had failed to mention any circumstances or
facts that suggested
that their personal safety was at risk nor had
any showed compulsion forcing them to flee Somalia. In this regard
the high court
stated that the first to third asylum seekers referred
to generalised civil war reasons. The fourth, the high court said,
merely
referred to Al-Shabaab’s attempted recruitment of him,
which caused him to flee Somalia. The sixth asylum seeker, the high

court found, had remained in Somalia for a period of two years after
his brother was killed and then left Somalia although nothing
appears
in that period to have intervened to cause him to leave Somalia. The
fifth asylum seeker, the court found, decided to leave
Somalia on the
basis of a single firefight between Al-Shabaab and government forces.
The seventh asylum seeker, so the high court
held, left Somalia and
remained in Kenya for two years before she went to Tanzania, from
where she returned to Somalia where she
suffered no persecution at
all and then left for South Africa. The eighth asylum seeker was a
herder and came closest to the violence
when on one occasion he was
herding camels and there was a fight between Al-Shabaab and
government forces. He was not injured nor
was he the target of
either. The high court came to the conclusion that the RAB could not
be faulted.
[66]
The high court criticised the present appellants for attempting to
straightjacket the RAB and
compelling them to apply a ‘blanket’
approach to asylum seekers from Somalia, which approach was legally
unsustainable
and would render the RSDOs and the RAB redundant. The
high court iterated that the approach to reviews of this nature was
that
a court should show due deference to specialist entities. The
high court warned against judicial activism. It found ultimately that

the RAB had not acted unlawfully.
[67]
In relation to the burden of proof in applications for asylum status
and appeals before the RAB,
the high court held that it was
‘ill-conceived’ to postulate that there was a shared
burden of proof regarding eligibility
for refugee status. The high
court held that para 196 of the UNHRC Handbook did not support that
view. The following passage of
the judgment is relevant:
‘
It
is correct that the handbook states that there is a duty to ascertain
and evaluate all relevant facts which is the shared responsibility
of
the applicant and the examiner. That does not mean that the burden of
proof regarding refugee status eligibility is now shared.
What is
shared is the responsibility to put all relevant facts before the RAB
which is then required to provide information at
its disposal and
conduct research in respect of the state of affairs in the country of
origin of the applicant. However, at the
end of the day, the burden
of proof still rests with the applicant and not with the RAB. It is
correct that the RAB has a duty
to gather information should this be
necessary. Information gathering is done when it becomes apparent
that such information could
assist in deciding the application or
appeal. An asylum seeker has the burden of placing the necessary
facts before the RSDO or
RAB why he/she should be granted asylum . .
. The fact of the matter is that the asylum seekers presented cases
that lacked any
substance regarding their qualification or
entitlement to refugee status in South Africa. There is therefore no
merit to the submission
of the applicants that the burden of showing
entitlement to asylum status was shared between them and the RAB.’
[68]
In relation to the contention by the appellants that an asylum
seeker’s credibility was
overemphasised by the RAB when it came
to the assessment of the application for refugee status, the high
court held that it had
no merit. In this regard, it stated the
following:
‘
The
RAB found that it could not believe the applicants on their versions
that they were personally at risk and that they were forced
to flee
Somalia. In fact, where the RAB made credibility findings this is
borne out by the facts before it. The applicants’
submission
suggests that the RAB shouldn’t have paid any attention on that
aspect. This cannot be and I fail to find a basis
that gives a Court
the latitude to dictate to the RAB, as the specialist appellate
tribunal in refugee status determination matters,
how to assess the
material placed before it especially where the issue of credibility
features. On the objective facts before it,
the RAB found
inconsistencies and it was entitled to consider them and their impact
on its decisions. That Courts may approach
those same issues
differently is no acceptable yardstick to set aside the decisions of
the RAB which are contrary to those of the
Courts.’
[69]
In respect of the appellants’ complaints that the
audi
principle was not observed, the high court found that they too
were without merit. It said the following:
‘
It
is clear from the factual matrix regarding each asylum seeker that
the RAB committed no procedural irregularity, when dealing
with the
appeals. The asylum seekers were each provided with an ample
opportunity to participate in their appeal hearings. They
were
allowed to present their cases and to answer any questions that
arose. The country of origin information argument is misplaced.
There
was no need on the RAB to confront the asylum seekers with country of
origin information as the asylum seekers failed on
their own to come
up with substantive bases justifying the grant of refugee status.
They presented hopelessly inadequate cases
and the RAB can therefore
not be faulted for denying them refugee status.’
[70]
Turning to the appellants’ complaint regarding the lack of
interpreters, Mlambo JP held,
at para 54 of the judgment, that in
this case all the applicants had been assisted by their own
interpreters during the appeal
hearings and that there could
therefore be no suggestion of any prejudice to any of them. In the
result, the application for review
was dismissed with each party to
pay its own costs. It is against the aforesaid conclusions and the
resultant order that the present
appeal is directed. In the
paragraphs that follow I deal with whether the conclusions reached by
Mlambo JP were justified.
Discussion
and conclusions
The
duty to assist to obtain relevant information and evidence so as to
have as full a picture as possible on which to predicate
a decision
on refugee status
[71]
A good starting point when applying the provisions of the Act, as
recognised by the high court,
and with reference to
Ruta
,
is an appreciation of the importance of the principle of
non-refoulement,
entrenched in s 2. The RSDOs, the RAB and finally the high court,
were mistaken in their view of how the statutory process leading
up
to the adjudication of an application for refugee status or an appeal
was designed to unfold. In terms of s 21(2)
(b)
of the Act, a Refugee Reception Officer (RRO) must, at source, in
accepting an application form from an asylum seeker, ‘see
to it
that the application form is properly completed, and, where
necessary, must assist the applicant in this regard’. In
terms
of s 21(2)
(c)
a
RRO ‘may conduct such enquiry as he or she deems necessary in
order to verify the information furnished in the application.’

Section 24(1)
(a)
of the Act makes it clear that upon receipt of an application for
asylum, the RSDO, ‘in order to make a decision, may request
any
information or clarification he or she deems necessary from an
applicant or Refugee Reception Officer’. Furthermore,
he or
she, where necessary, ‘may consult with and invite a UNCHR
representative to furnish information on specified matters’.
[13]
Additionally, he or she may, with the permission of the asylum
seeker, provide the UNCHR with such information as may be
requested.
[14]
As pointed out on behalf of the appellants, s 26(3) of the Act
provides that the RAB may invite the UNCHR representative to make

oral or written representations; request the attendance of any person
who is in a position to provide relevant information; of
its own
accord, make further enquiry or investigation; and request the
applicant to appear before it to provide such further information
as
it may deem necessary.
[72]
In
Gavric v Refugee Status Determination Officer
, in dealing
with s 24 of the Act in relation to an exclusion hearing, the
Constitutional Court said the following:
‘
Section
24(1) of the Act provides that an RSDO may, when considering an
asylum application, request further information from an
applicant,
the Refugee Reception Officer, or the United Nations High
Commissioner for Refugees (UNCHR) representative. The Handbook

recognises that it may be necessary for the RSDO to assist an
applicant in obtaining relevant information in order to properly

determine the application. This is premised on the factual reality
that persons fleeing their country often arrive with the barest

necessities and often cannot afford legal representation.’
[15]
[73]
Regulation 4 of the Regulations in force prior to them being
substituted in 2020 provided that
an RSDO was obliged to ensure that
an asylum seeker is provided adequate interpretation. Regulation 5
stated that ‘where
practicable and necessary, the Department of
Home Affairs will provide competent interpretation for the applicant
at all stages
of the asylum process.’ Where it was not
practicable, an applicant would be required to provide an
interpreter. In the latter
event, an applicant must be given at least
seven days advance notice. The measures referred to in the preceding
paragraphs were
clearly designed to ensure effective communication
and to ensure efforts towards the presentation of as full a picture
as the circumstances
permitted before an assessment ensued and a
decision on refugee status was reached.
[74]
The UNHCR Handbook and Guidelines on Procedures and Criteria for
Determining Refugee Status
[16]
,
under the heading, ‘Establishing the Facts’ and the
subheading ‘Principles and Methods’, states the
following:
‘
195.
The relevant facts of the individual case will have to be furnished
in the first place by the applicant himself. It will then
be up to
the person charged with determining his status (the examiner) to
assess the validity of any evidence and the credibility
of the
applicant’s statements.
196.
It is a general legal principle that the burden of proof lies on the
person submitting a claim. Often, however, an applicant
may not be
able to support he's statements by documentary or other proof, and
cases in which an applicant can provide evidence
of all his
statements will be the exception rather than the rule. In most cases
a person fleeing from persecution will have arrived
with the barest
necessities and very frequently even without personal documents.
Thus, while the burden of proof in principle rests
on the applicant,
the duty to ascertain and evaluate all the relevant facts is shared
between the applicant and the examiner. Indeed,
in some cases, it may
be for the examiner to use all the means at his disposal to produce
the necessary evidence in support of
the application. Even such
independent research may not, however, always be successful and there
may also be statements not susceptible
of proof. In such cases, if
the applicant's account appears credible, he should, unless there are
good reasons to the contrary,
be given the benefit of the doubt.
197.
The requirement of evidence should thus not be too strictly applied
in view of the difficulty of proof inherent in the special
situation
in which an applicant for refugee status finds himself. Allowance for
such possible lack of evidence does not however
mean that unsupported
statements must necessarily be accepted as true if they are
inconsistent with the general account put forward
by the applicant.’
[75]
Significantly, for present purposes, paragraphs 198 and 199 of the
Handbook read as follows:
‘
198.
A person who because of his experience, was in fear of the
authorities in his own country may still feel apprehensive vis-
́a
-vis any authority. He may therefore be afraid to speak freely and
give a full and accurate account of his case
199.
While an initial interview should normally suffice to bring an
applicant’s story to light, it may be necessary for the

examiner to clarify any apparent inconsistencies and to resolve any
contradictions in a further interview, and to find an explanation
for
any misrepresentation or concealment of material facts. Untrue
statements by themselves are not a reason for refusal of refugee

status and it is the examiner’s responsibility to evaluate such
statements in the light of all the circumstances of the case.’
[76]
As can be seen, and as recognised in the statutory scheme, prior to
amendment, the refugee status
determination process was an
inquisitorial and facilitative one. To this end, the RSDOs and the
RAB failed to fulfil their statutory
and Constitutional obligations.
The RAB ignored the statutory construct and the principles enunciated
by our courts and the dictates
of the UNHCR Handbook.
[77]
Section 24 presently provides that the RSDOs must, in dealing with an
application, bear in mind
the provisions of the
Promotion of
Administrative Justice Act 3 of 2000
, and ensure that an applicant
fully understands the procedures, her or his responsibilities, and
the evidence presented and may
consult the UNCHR representative or
invite such representative to provide information concerning the
application.
[78]
Regulation 8
of the presently applicable regulations states that an
applicant must in the prescribed form indicate a proficiency language
of
choice and that all information or any documentation submitted
together with the application is binding on the applicant and may
not
be amended.
[79]
Regulation 14(5)
of the present regulations provides that during an
interview with an asylum seeker an RSDO may require any further
information,
evidence, clarification, or corroboration from the
asylum seeker and require further information, evidence,
clarification or corroboration
from any other relevant person, body,
or source.
Regulation 14(6)
provides that the RSDO must test any
claim made by an applicant against such information, documents or
evidence that is at her
or his disposal. It permits the RSDO to
obtain legal advice, where necessary. The RSDO may consult decisions
of the relevant Standing
Committee and the Refugee Appeals Authority.
[80]
As can be seen, the architecture of the Act and the Regulations, as
presently framed, do not
militate against the applicable paragraphs
of the Handbook or the decisions of our courts referred to above. On
the contrary they
are as insistent, if not more so, that the
principles set out above must be followed and applied. The
obligation, presently, on
the part of the RSDO, to observe the
provisions of PAJA confirms that the Refugee Reception Officers, the
RSDOs and the Appeals
Authority must be scrupulous in observing a
fair procedure, the first part of which is to assist an asylum seeker
at the outset
and then to assist in gathering evidence to enable as
full a picture as possible on which to predicate a decision. That was
the
position before the amendments to the Act were affected and the
Regulations substituted. It has not changed.
[81]
While the high court was correct about an asylum seeker having to
ultimately show that she or
he meets the statutory standard, an
aspect which I will later in this judgment explore further, it erred
in holding that the RAB
was confined to the record before it and to
the evidence thus presented. In
Refugee Appeal Board v Mukungubila
at para 34, Maya P said the following:
‘
Of
further critical importance is the fact that the RAB is vested with
appellate jurisdiction in the wide sense. Thus, it is in
the same
position as the RSDO and is not bound to decide the merits of the
appeal within the confines of the latter’s record.
It is at
large to make its own enquiries and even gather evidence, if
necessary. This is so because
s 26(3)
of the
Refugees Act
specifically
entitles it, inter alia, to invite the United Nations
High Commissioner for Refugees to make oral or written submissions;
request
the attendance of any person who, in its opinion, is in a
position to provide it with relevant information; of its own accord
make
further enquiries or investigation and request the applicant to
appear before it and to provide any such other information as it
may
deem necessary.’
[17]
[82]
Counsel on behalf of the respondents did not take issue with this
statement of the law. He merely
submitted that the obligation on the
part of a decision maker to be of assistance was only triggered when
the information supplied
by an applicant was such that it merited
further enquiry and that in the present case, the basic information
supplied was so poor
that no assistance or enquiry was merited. That
submission is without foundation. The high court’s own recital
of what served
before the RSDO and the RAB indicates that there was
indeed a basis for further enquiry and scrutiny. That information, it
will
be recalled was the material on which the RSDO and the RAB
purported to make credibility findings. It must be borne in mind that

the statutory scheme set out above, the decisions of our courts and
international best practice as reflected in the Handbook, consonant

with our Constitutional values, all dictate that an asylum seeker
should be assisted to present as full a picture as the circumstances

permit. The high court ought to have concluded that the RSDOs and the
RAB failed in this fundamental duty. If either or both had
complied
with their duties a more detailed picture might well have emerged.
The details presented to the high court were, as pointed
out earlier,
not before the RAB.
Failure
by the RAB to consider the applicability of s 3(b) of the Act
[83]
Furthermore, it is abundantly clear that the appellants are correct
in their submissions, that
neither the RSDO nor the RAB considered
the application of s 3
(b)
of the Act. Even on the most basic
information supplied by the asylum seekers to the RSDOs and the RAB,
a case was made for a consideration
of whether there were events in
Somalia ‘seriously disturbing or disrupting public order in
either in part or the whole .
. . country’, compelling the
eight asylum seekers to seek refuge elsewhere. At the very least it
merited further scrutiny
and the obtaining of further information and
evidence. It is apparent that the decisions reached by the RSDOs and
the RAB were
limited to a consideration of the application of s 3
(a)
of the Act and that any reference to the safety situation in Somalia
was coincidental or related to the application by them of
s 3
(a)
of the Act. There is force in the submission on behalf of the
appellants, referred to earlier in this judgment, that the decisions

appear in the form of a template followed by the decision makers and
that they even contain the same spelling and grammatical errors.

Instead of blaming the eight asylum seekers for seeking a blanket
approach, there should be introspection on the part of the
respondents
as to whether they could not justifiably be accused of a
blanket obstructive approach. The high court erred in concluding that
the application of s 3
(b)
of the Act was considered by the
RAB.
Narrow
view of persecution
[84]
Moreover, the appellants also justifiably complained that the RSDOs
and the RAB took an impermissibly
narrow view of persecution when it
considered the applications for refugee status. As shown above, in
five of the decisions, the
RAB asserted that the appellants before it
needed to show that they were persecuted for political reasons.
Section 3
(a)
provides that refugee status may be afforded to
any person who has well-founded fear of persecution on wider grounds,
namely, ‘by
reason of his or her race, tribe, religion,
nationality, political opinion or membership of a political social
group’. This
too, ought to have been recognised by the high
court. The appellants submitted that, in any event, many of them met
even the narrow
criteria applied by the RSDOs and the RAB, especially
those who referred to attempted recruitment by Al-Shabaab.
[85]
The appellants pointed out that the 2010 UNHCR guidelines confirmed
that fear of recruitment
or retaliation from Al-Shabaab for failing
to join is indeed a form of persecution. That fear was certainly
expressed by some of
the eight asylum seekers. It was simply afforded
no validity at all by the RAB. Furthermore, the RAB adopted the
attitude that
threats to family and friends do not qualify as fear of
persecution. The UNHCR Handbook, at para 43, makes it clear that
those
claims had to be considered in determining whether an asylum
seeker had a well-founded fear that he or she will sooner or later

become a victim of persecution. In the present instance they were not
considered.
Failure
to apply the audi principle
[86]
There is also substance to the complaint by the appellants that the
eight asylum seekers were
not afforded an opportunity to respond to
that which the decision makers considered adverse to their case.
Fundamental fairness
dictates that such an opportunity should be
afforded to an asylum seeker. They need to know the substance of
alleged adverse information
and provided an opportunity to controvert
it.
[18]
The high court had held that there was no need for the RAB to
confront the asylum seekers with country of origin information, as

they had failed on their own, to come up with substantive bases
justifying the grant of refugee status. Besides the error of that

assessment due to a failure to obtain further information and
evidence, it also flies in the face of the decision of the
Constitutional
Court in Gavric, at paras 79-80, and against a
principle of long-standing. The Constitutional Court in Gavric stated
the following:
‘
[A]
person can only be said to have a fair and meaningful opportunity to
make representations if the person knows the substance
of the case
against her. This is so because a person affected usually cannot make
worthwhile representations without knowing what
factors may weigh
against her interests. This is in accordance with the
maxim
audi alteram partem
(hear the other side), which is a fundamental principle of
administrative justice and a component of the right to just
administrative
action contained in section 33 of the Constitution.
In
order to give effect to the right to a fair hearing an interested
party must be placed in a position to present and controvert
evidence
in a meaningful way. In
Foulds
, Streicher J held that a
decision maker was under an obligation to disclose adverse
information and adverse policy considerations,
and an affected person
an opportunity to respond thereto. If an administrator is minded to
reject the explanations of an interested
party, she should at least
inform the party why she is so minded, and afford that party the
opportunity to overcome her doubts.’
Interpreters
[87]
Insofar as the appellants’ complaint against the failure to
provide interpreters is concerned,
the position is complicated in
that the statutory obligation to provide interpreters is restricted
to where it is reasonably practicable
to do so. And the position is
further complicated when an asylum seeker arrives with an interpreter
in tow, leaving the RSDO or
the RAB in an invidious position. In my
view, the statutory obligations, the decisions of our courts, and
international best practice,
make it clear that the decision-maker
should be attuned to ensuring that there is effective communication
and that effective assistance
in rendered. This is exemplified by the
new statutory requirement, referred to earlier, that care should be
taken, with reference
to PAJA, to ensure that an applicant for
refugee status fully understands his or her rights and obligations
and the evidence presented.
This was essentially so even prior to the
amendment.
Onus,
credibility, and adjudication
[88]
It was submitted on behalf of the appellants with, reference,
inter
alia
,
to
FNM
v Refugee Appeal Board (FNM),
[19]
that there is a shared burden of proof in relation to meeting the
requirements for refugee status, between the applicant and the

decision maker, which, it will be recalled, was rejected by Mlambo
JP.
FNM
,
in dealing with the burden of proof,
relied
on Tantoush v Refugee Appeal Board and Others (Tantoush).
[20]
At
para 48 of
FNM
,
the following appears:
‘
In
summarising the nature of the burden of proof in its decision, the
RAB simply stated that the burden rested on the applicant.
It made no
reference to the required inquisitorial and facilitative approach.
Nor did it refer to the lower standard of proof that
applies or the
requirement of a liberal application of the benefit of doubt
principle. No reference was made to its powers under
s 26. Nor were
any used.’
[89]
In
Tantoush
,
the court held, with reference to a case decided in the United States
of America, namely
,
Immigration and Naturalization Service v Cardozo Tonseca,
[21]
that in relation to determining qualification for refugee status –
in the case before it in relation to persecution –
the test is
‘a reasonable possibility of persecution’ and that the
ordinary civil standard of proof is too onerous.
In this regard,
reliance was also placed on
Fang
v Refugee Appeal Board
and Others
[22]
and
Van
Garderen NO v Refugee Appeal Board and Others (Van Garderen).
[23]
In
Van
Garderen,
the
court stated the following:
‘
In
my view simply referring to the normal civil standard, the RAB
imposed too onerous a burden of proof. It is clear . . . that

allowance must be made for the difficulties that an expatriate
applicant may have to produce proof. It is also clear that there
is a
duty on the examiner himself to gather evidence.’
Later,
in
Van Garderen
, the following appears:
‘
All
this confirmed my view that the normal onus in civil proceedings is
inappropriate in refugee cases. The enquiry has an inquisitorial

element. The burden is mitigated by a lower standard of proof and a
liberal application of the benefit of doubt principle.’
[90]
It must be said that a careful reading of the judgment of
Cardozo
Tonseca
shows that the court did not contrast the ordinary civil
standard of proof with the standard to be applied in general in
refugee
cases. It in fact contrasted two distinct American statutory
standards, namely, the standard to meet the requirements for asylum,

on the one hand, and the standard to successfully resist deportation,
on the other. The analysis of that case in
Tantoush
is thus,
strictly speaking, not correct.
[91]
Even though
Tantoush
and some of the allied cases and the
submissions on behalf of the appellants, referred to in para 74
above, all appear to confuse
the duty imposed on the decision maker
to assist in gathering evidence and information before an assessment
is made with the question
of the onus, they are unassailably correct
that a duty rests on a decision-maker or examiner to be of assistance
to an applicant
for asylum status, as envisaged in the UNHCR
Handbook, in presenting as full a case as possible before a
determination on refugee
status is made. This, as discussed above, is
borne out by the applicable statutory provisions, reinforced by the
decisions of our
courts on what a fair procedure should entail,
and
on international best practice, reflected in the UNHCR Handbook.
[92]
The UNHCR Handbook, not unsurprisingly, accepts that, in principle,
in meeting the standard for
refugee status an applicant bears the
burden of proof. That, however, does not mean the standard we would
conventionally apply
in civil cases, namely that he/she who asserts
an entitlement must prove it on a balance of probabilities, is
without more, to
be applied in refugee cases. In this regard, the
UNHCR Handbook, consonant with our Constitutional values, is helpful.
As indicated
in para 196 of the UNHCR Handbook, referred to above,
because of the peculiar situation that refugees find themselves in,
corroborative
documentation or evidence might not be available and
that this factor should be considered. In addition, in paragraph 197
of the
UNHCR Handbook, it is postulated that the requirement of
evidence ‘should thus not be too strictly applied’. A
decision-maker
is also enjoined in terms of paragraph 198 of the
UNHCR Handbook to consider that an applicant for refugee status,
given what he
or she might have been subjected to, might very well be
reluctant to speak freely. The inquisitorial and facilitative nature
of
the proceedings, statutorily dictated, means that an assessment to
determine an entitlement to refugee status is more flexible than

would otherwise be the case. Simply put, it is for the applicant for
refugee status to show that he or she meets the requirements
for
refugee status, but in considering the application a decision maker
must take the aforesaid factors into account. So too, in
assessing
credibility, these factors must be considered, against the totality
of the evidence and information obtained and presented.
It is thus a
more flexible yardstick.
Substitution
order not warranted
[93]
It is now necessary to deal with the prayer by the appellants that
this Court, after setting
aside the order of the RAB, should, instead
of remitting the matter for reconsideration, itself decide the
applications for refugee
status. This submission has a fundamental
flaw. The appellants themselves contend that the RSDO and the RAB
ought to have engaged
in further evidence and information gathering.
Part of that process would involve engaging,
inter
alia
,
with specialist agencies such as the UNCHR. It is clear from the
submissions by the appellants themselves that the full spectrum
of
evidence and information, upon which such a decision can be
predicated, is lacking. Moreover, the information supplied by the

appellants in their founding affidavit is now outdated, not least
because of the long time-lag before the judgment was delivered.
As
things presently stand, we have no information on record on what the
current situation is in Somalia. It must also be emphasised
that
courts adhere to the doctrine of the separation of powers and are
cautious not to trespass on the terrain of other arms of
State, not
least of all because the administrative functionaries and bodies
vested with the power to make decisions are expected
to have the
experience and specialist knowledge pertaining to their areas of
operation and the necessary resources to enable them
to perform their
functions and execute their duties.
[24]
It is only in exceptional cases that a court will exercise a power of
substitution and will only do so when it is in as good a
position as
an administrator to make such a decision and the decision by the
administrator is a foregone conclusion.
[25]
For the reasons aforesaid, this is not a case in which a substitution
order is justified.
Declaratory
orders, structural interdict and those not presaged in the notice of
motion not justified
[94]
In light of what is set out above the range of declaratory orders
sought by the appellants in
paragraph 5 is unnecessary. That takes me
to the structural interdict sought in paragraph 6 of the notice of
motion, set out in
para 4 above. It will be recalled that the
appellants require the DG and the Minister to investigate and
identify the causes of
the repeated errors in decision making by the
RAB and to develop a plan, in consultation with the first appellant
and other interested
parties, to address the causes of the repeated
errors and to report to this Court, on affidavit within a specified
timeline, on
its findings and the plans it developed.
[95]
The statutory re-modelling referred to earlier in this judgment,
namely, the amendments to the
Act and the new regulations, have
overtaken the relief sought. The legislature has seen fit to replace
the RAB with the RAA and
has prescribed legal qualifications for its
chairperson and for such members as the Minister may determine,
having regard to the
volume of work it has to perform.
[26]
Furthermore, an appeal may, in terms of s 8C of the Act, unlike in
the past, be determined by a single member or such members as
the RAA
may deem necessary. The amendments and the accompanying regulations
have made it clear that PAJA obligations must be complied
with and
that the rights of applicants must be respected. It sets out clear
obligations resting on an RRO, an RSDO and the RAA,
leading up to and
including the decision, granting, or refusing an application for
refugee status. The Act and the regulations
installed a new RAA
appeal structure, with qualified persons who, at least notionally
ought to be better equipped to see to it
that the statutory scheme,
which is clear and insistent about the relevant functionaries having
to observe the rights of applicants
for refugee status, is properly
applied.
[96]
The amendments also appear to confront the high volumes of work and
backlog, by allowing individual
members of the RAA to hear and
determine appeals. The first appellant and those whose interests it
strives to advance and protect
would be better served by studying how
the new structure operates and how the Act is presently being applied
and whether there
is adherence to its core principles and then to
consider whether an approach to court is warranted. In any event,
although there
appears to be some force in the submissions that at
the time the eight asylum seekers applied there was an obdurate
rigidity and
perhaps even an obstructiveness on the part of
decision-makers and that the decisions evinced a pattern of disregard
for fundamental
principles, it is also true that what we have before
us are the particulars of the cases of the eight asylum seekers and
the decisions
related to them. In these circumstances, it is somewhat
difficult to direct the investigation sought so that an outcome is
effective.
More importantly, the factors set out earlier in this
paragraph, militate against the structural interdict sought by the
appellants.
[97]
There is one other aspect that requires brief attention. Though not
presaged in the notice of
motion the appellants, before us, sought
alternative relief specified in an annexure to their heads of
argument. This included,
in the event that we were disinclined to
make a substitution order, an order remitting the matter back to the
high court and providing
for an exchange of further affidavits to
deal with
, inter alia
, recent developments that might affect
an order of substitution by the high court. The appellants also
sought further declaratory
orders which would compel the DG and the
Minister to provide the high court with details of the present
membership of the RAA;
the current backlog and the approach that the
RAA intends to take in relation to that backlog; the steps the RAA
envisages in relation
to ensure that past errors do not re-occur; and
the steps the DG and the Minister will take to support the RAA.
First, it is unfair
and unprecedented for a litigant to seek
extensive substantive relief not foreshadowed in the notice of
motion, especially when
what is sought is not dealt with on
affidavit, thus not providing an opponent an opportunity to deal with
it. It is simply not
relief that I am willing to grant.
[98]
I understand the frustration of the eight asylum seekers and the
prejudice caused by the years
of waiting for their status to be
resolved. It appears to me to be fair, after setting aside the
decisions refusing refugee status,
to order the RAA to hear the
appeals afresh and to complete the process and to arrive at
decisions, in line with the principles
set out above, within a
relatively short time frame. The appellants accepted that the new
appeals fell to be dealt with in terms
of the Act as amended read
with the new regulations. The transitional provisions brought about
by the amendments to the Act dictate
this.
[27]
[99]
The following order is made:
1
The appeal is upheld with costs, including the costs of two counsel.
2
The order of the high court is set aside and substituted as follows:
‘
1.1
The applicants’ delay bringing the review of the decisions by
the Refugee Appeal
Board outside the 180 day time limit prescribed in
the
Promotion of Administrative Justice Act 3 of 2000
is condoned.
1.2
The following decisions of the Refugee Appeal Board (“RAB”)
are reviewed and
set aside:
(a)
Appeal number 2923/14 of 14 October
2014, dismissing the appeal of Mr Hassan Abdinasir Osman.
(b)
Appeal number 3459/14 of 1 December
2014, dismissing the appeal of Mr Ali Jamac Khayre.
(c)
Appeal number 1212/14 of 21 November
2014, dismissing the appeal of Mr Abdulkadir Mohamed Omar.
(d)
Appeal number 3848/14 of 2 March 2015,
dismissing the appeal of Mr Abdirahman Ali Mahamed.
(e)
Appeal number 2683/14 of 28 November
2014, dismissing the appeal of Mr Mohomed Ahmed.
(f)
Appeal number 3455/14 of 14 October
2014, dismissing the appeal of Mr Mohamed Mahmud Osman.
(g)
Appeal number 538/13 of 26 March 2014,
dismissing the appeal of Mrs Maryama Muhumed Kahin.
(h)
Appeal number 1790/13 of 22 May 2015,
dismissing the appeal of Mr Abdullahi Bashir Hassan.
1.3
The 2
nd
to 9
th
applicants’ appeals are
remitted to the Refugee Appeals Authority for hearings afresh, with
hearings to commence not later
than Monday 4 October 2021 and
decisions to be rendered no later than Friday 5 November 2021.
1.4
The respondents are ordered to pay the appellants’ costs,
including the
costs of two counsel, jointly and severally, the one
paying the other to be absolved.’
3
The hearings and the adjudication of the appeals referred to
in the
substituted order are to be conducted in terms of the principles set
out in paras 71 to 92 of this judgment under the various
subheadings.
M
S NAVSA
Acting Deputy President
Appearances:
For
appellants:

N C Ferreira appearing with C McConnachie
Instructed
by:

Lawyers for Human Rights, Johannesburg Law Clinic, Johannesburg
Webbers,
Bloemfontein
For
respondents:

W Mokhare SC and L Mboweni
Instructed
by:

State Attorney, Pretoria
State Attorney, Bloemfontein.
[1]
Pope
Francis ‘Migrants and Refugees: Towards a Better World’
(2014), complete speech available from
www.vatican.va
.
[2]
Khaled
Hosseini, quote available from:
www.unhcr.org
.
[3]
Alan Kurdi, the three year old-toddler who drowned in the
Mediterranean in 2015, was part of a flow of refugees from the
Middle
East to Europe. The disturbing image which struck the
conscience of the world was carried in major mainstream media
outlets,
including The New York Times, The Guardian UK and BBC news.
See http://www.nytimes.com, https://www. theguardian.com,
https://bbbc.co.uk.
[4]
Established
by
s 12
of the
Refugees Act 130 of 1998
.
[5]
They
are appointed and operate in terms of
s 8
and
24
of the
Refugees Act
130 of 1998
.
[6]
Section
1 of the Act defines an ‘asylum seeker’ as ‘a
person who is seeking recognition as a refugee in the
Republic’.
This definition is in line with an international understanding of
the concept.
[7]
See ss
3, 4 and of the Act and s 5 in its pre, and post amendment state.
[8]
See
Somali
Association v Limpopo Department of Economic Development,
Environment and Tourism and Others
2015 (1) SA 151
(SCA) at para 44 and
Minister
of Home Affairs and Others v Watchenuka and Another
2004 (4) SA 326
(SCA) at paras 2-7, and the provisions of
s 6
of the
Refugees Act 130 of 1998
in relation to the applicable international
instruments- now
s 8A.
See also
Ruta
v Minister of Home Affairs
2019 (2) SA 329
(CC) at paras 23-34 and in relation to how asylum
seekers should be treated at paras 27 to 29.
[9]
Section
2
reads as follows:
‘
Notwithstanding
any provision of this Act or of 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 whole of the country.’
See
also
Gavric v Refugee Status Determination Officer
[2018]
ZACC 38
;
2019 (1) BCLR 1
(CC);
2019 (1) SA 21
(CC) para 26.
[10]
Appeals
are adjudicated and ‘decisions’ are made by the RAB in
terms of s 26 of the Act. The RAB’s duties and
powers are set
out in s 14 of the Act.
[11]
Regulation
14 sets out the time limit within which an appeal in terms of s 26
must be lodged and states that it must be lodged
in person at a
designated Refugee Reception Office.
[12]
Ruta
v Minister of Home Affairs
[2018]
ZACC 52; 2019 (2) SA 329 (CC).
[13]
Section 24(1)
(b)
of the Act.
[14]
Section
24(1)
(c).
[15]
Gavric
v Refugee Status Determination Officer
[2018]
ZACC 38; 2019 (1) SA 21 (CC).
[16]
Under
the 1951 Convention and the 1967 Protocol relating to the status of
refugees-reissued, Geneva 2011.
[17]
Refugee
Appeal Board v Mukungubila
[2018]
ZASCA 191; 2019 (3) SA 141 (SCA).
[18]
See
Gavric
fn
18 above
paras
79-80 and
AOL
v Minister of Home Affairs
2006 (2) SA 8
(D) para 13.
[19]
FNM
v Refugee Appeal Board
2019
(1) SA 468 (GP).
[20]
Tantoush
v Refugee Appeal Board and Others 2008 (1) SA 232 (T)
[21]
Immigration
and Naturalization Service v Cardozo Tonseca
[1987] USSC 32
;
480
US 421
(1987) at 440.
[22]
Fang
v Refugee Appeal Board
and
Others 2007 (2) SA 447 (T).
[23]
Van
Garderen NO v Refugee Appeal Board and Others
(TPD
case no 30720/2006 19 June 2007).
[24]
See
Bato Star Fishing
(Pty) Ltd v Minister of Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC); 2004(7) BCLR 687 (CC);
Makungubila
fn 25 above at para
31
, Logbro Properties
CC v Bedderson NO and Others
[2002] ZASCA 135
,
[2003] 1 All SA 424
(SCA) para 21,
Gauteng
Gambling Board v Silverstar Development Ltd and Others
(80/2004)
[2005] ZASCA 19
para 29.
[25]
See
Trencon
Construction (Pty) Ltd v Industrial Development Corporation
of
South Africa Ltd and Another
[2015] ZACC 22
;
2015 (5) SA 245
(CC);
(2015 (10) BCLR 1199
para 47.
[26]
See s
8B(1) of the Act.
[27]
See s 31 of the Act.