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[2017] ZASCA 186
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Minister of Home Affairs v Ruta (30/2017) [2017] ZASCA 186; [2018] 1 All SA 682 (SCA); 2018 (2) SA 450 (SCA) (13 December 2017)
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SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 30/2017
In
the matter between:
THE
MINISTER OF HOME
AFFAIRS
APPELLANT
and
ALEX
RUTA
RESPONDENT
Neutral
citation:
The
Minister of Home Affairs
v
Ruta
(
30/2017
)
[2017] ZASCA 186
(13 December 2017)
Coram:
Bosielo, Seriti,
Willis and Mocumie JJA
and Schippers
AJA
Heard:
7 November 2017
Delivered:
13 December 2017
Summary:
Refugees Act 130 of
1998
–
ss 21
and
22
– contravention of
ss 9
and
49
(
i
)
of the
Immigration Act 13 of 2002
– respondent found in
possession of fraudulent asylum seeker permit and failure on his part
to apply for asylum without delay
– respondent not entitled to
rely on protection afforded by
Refugees Act – appeal
upheld -
appellant entitled to deal with respondent in terms of the provisions
of
ss 32
and
34
of the
Immigration Act.
ORDER
On
appeal from:
Gauteng
Division, Pretoria (Tuchten J sitting as court of first instance):
1. The appeal is
upheld.
2. The order of the
court a quo is set aside and replaced with the following:
'(a) The application
is dismissed.
(b) No order as to
costs.'
JUDGMENT
Seriti
JA (Bosielo, Willis JJA and Schippers AJA concurring):
[1]
This is an appeal against the decision of the Gauteng Division of the
High Court, Pretoria (Tuchten J) granting an order for
the immediate
release of the respondent who was detained at Lindela Repatriation
Facility pending his deportation to Rwanda.
[2] The order
granted by the court a quo reads as follows:
'1. The respondents
are directed to release the applicant forthwith.
2. Directing that
the applicant be afforded 5 days from the order being granted, to
present himself at a Refugee Reception Office
to apply for asylum in
terms of
section 21
of the
Refugees Act.
3.
Directing
the first and second respondents to renew the applicant’s
temporary asylum seeker permit in terms of
section 22(1)
of the
Refugees Act 130 of 1998
, pending the finalisation of his claim, more
specifically the exhaustion of his rights of either appeal or review
in terms of Chapter
4 of the Refugee Act 130 of 1998 and the
Promotion of Administrative Justice Act.'
[3]
The main issue in this appeal is what may be expected of an asylum
seeker in the Republic in order to enjoy the protection afforded
under section 21 of the Regufees Act.
[4]
The respondent, a Rwandan national alleges that he was employed as a
soldier in the Rwandan army. Between 1993 and 1994 he was
promoted to
the rank of a sergeant and second lieutenant of the army
respectively. In 1998 he was promoted to the rank of lieutenant
working in the Division of Military Intelligence. In 2000 he
commenced employment with the civilians for the Republican Guards
in
the National Security Services (NSS) of Rwanda and became an agent of
the NSS.
[5]
In October 2014 he was approached by his superior in Rwanda who
instructed him to travel to South Africa to engage with the
Rwanda
National Congress (the RNC) members. The RNC is an exiled Rwandan
opposition party which has offices in South Africa. The
following day
he was presented with a passport and documents to facilitate his
journey to South Africa. At the time he did not
know what he was
coming to do in South Africa and as an NSS agent, he was merely
following instructions.
[6]
He left Rwanda at the end of October 2014 and travelled to Tanzania
where he met another NSS agent. The agent directed him to
proceed
further to Zimbabwe where he would be met by another NSS agent. He
proceeded to Zimbabwe via Zambia and on his arrival
in Zimbabwe he
met another NSS agent who facilitated his transit to South Africa.
This latter agent advised him that it was difficult
to cross from
Zimbabwe into South Africa without the required visa. Together with
the agent, they travelled to Mozambique so that
they could enter
South Africa via Mozambique. On arrival in Mozambique, they were
informed that it will be easier to cross into
South Africa, without a
visa from Zimbabwe during the festive season. They went back to
Zimbabwe and waited for the festive season.
In December 2014 he
crossed into South Africa from Zimbabwe.
[7]
On arrival in South Africa, he met another
person who was assigned by the Rwandan Government to advise him about
the mission he
was to carry out in South Africa. After two days the
agent instructed him to find a channel of reaching and befriending
certain
identified members of the exiled Rwandan opposition party,
the RNC. He was moved to a house in Regent Park Johannesburg and he
was allocated a budget for accommodation and living expenses.
[8]
In January 2015 he met a Rwandese national (known as Harmsa) who
introduced him to the RNC party members whom he was supposed
to
befriend. The men did not know who he was and that made it easy for
him to befriend them. During the first week of February
2015 he went
back to the NSS agent and advised him that he succeeded in
befriending identified RNC party members. The NSS agent
then told him
that they will organise a firearm for him. He then realised that this
meant that he had to kill a member of the RNC
party. He panicked and
started avoiding contact with the agent as he did not want to kill
any members of the RNC party.
[9]
During February 2015 he approached the Directorate for Priority Crime
Investigations (the Hawks) and alerted them about the
mission he was
instructed to carry out. The Hawks reacted by advising him that he
would be put under their Witness Protection Unit
because his case was
high profile. A few weeks after reporting the matter to the Hawks,
the house which he occupied at Regent Park
was attacked by unknown
gunmen who fired gunshots at the house. The police came to the house
to investigate and then alerted the
Hawks.
[10]
He approached the Hawks on 17 March 2016, a day after the alleged
shooting took place at his home in Regent Park and signed
the
'Placing Under Temporary Protection in terms of
section 8
of The
Witness Protection Act 112 of 1998
' form. From 19 March 2015 onwards
he was then placed at a safe house in Pretoria under the protection
of Colonel Mohlamme of the
Hawks. He further alleged that in March
2015 he was taken to the Refugee Reception Office (RRO) in Marabastad
by Colonel Mohlamme
to apply for asylum. On arrival at the Marabastad
RRO they were informed that his application could not be processed
because the
system was down. Colonel Mohlamme informed him that they
would return to the RRO on 25 March 2015.
[11]
On 25 March 2015 a certain Paul of the National Prosecuting Authority
(NPA) came to him where he was staying in Pretoria and
informed him
that they were moving him to Durban. He informed Paul that he had an
appointment at the Marabastad RRO to apply for
asylum. Paul told him
that the application would be made at the Durban RRO.
[12]
On arrival in Durban he was handed over to a certain Bernard who
placed him in a hotel. Bernard informed him that he would
take him to
the RRO at a later stage but failed to do so. After three
months in Durban he was moved back to Pretoria and
handed over to
Paul who took him to a safe house where he was handed over to one
Solly of the NPA. The respondent informed Solly
about his desire to
apply for asylum. Solly also failed to assist him.
[13]
Later Solly advised him to look for a job because the monthly
allowance that the NPA was giving him whilst in its protective
custody was insufficient for his sustenance. He then began searching
for a job and later received a job offer from a local pizzeria
restaurant. He further alleged that he informed Solly about the job
offer including the fact that the offer might be jeopardised
by the
fact that he does not have the relevant immigration documents. Solly
then asked him for the details of the manager of the
restaurant so
that he could contact the said manager and explain to him the
position of the respondent. After Solly spoke to the
manager of the
restaurant, the manager no longer asked the respondent about the
permit. However, a few days later the manager asked
the respondent to
provide him with his identity photo and thereafter the manager
provided him with an asylum seeker permit.
[14]
On 19 March 2016 the respondent was arrested and charged with the
possession of a fraudulent permit; riding a motorbike without
a
driver’s license and being an illegal foreigner.
[15]
In its answering affidavit the appellant, amongst others, denied that
the respondent was ever taken by Colonel Mohlamme to
the RRO. The
appellant further denied that Paul, Bernard and Solly ever discussed
with the respondent the question of his desire
to go to the RRO or to
take him to the RRO in order to apply for an asylum seeker’s
permit. The appellant further denied
that Solly ever advised the
respondent to look for a job. The appellant stated further that the
respondent failed to disclose to
the authorities that he secured
employment. In this regard, the principles governing disputes of fact
in motion proceedings are
well-established. An applicant who seeks
final relief on motion must accept the version of his opponent in the
event of a conflict,
unless the latter’s allegations do not
raise a real or bona fide dispute of fact, or are so far-fetched or
clearly untenable
that the court is justified in rejecting them
merely on the papers (
Plascon-Evans
Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634E-635C).
[16]
As stated earlier, the respondent was arrested on 19 March 2016 after
he was found to be on a public road riding a motorcycle without
having a licence and being in possession of a fraudulent Temporary
Asylum Seekers Permit. The respondent’s first appearance
in
court took place on 22 March 2016. The proceedings were postponed to
4 April 2016 and he was refused bail.
[17]
Prior to his arrest and on 22 December 2015 the respondent was
discharged from the Witness Protection Programme. Some of the
reasons
offered for such a discharge was that he flouted some of the Witness
Protection Programme rules and he also failed to disclose
to the
Office for Witness Protection the fact that he had obtained
employment and was working in South Africa without a valid work
permit and had therefore placed the integrity of the Office for the
Witness Protection Programme at risk.
[18] On 15 April
2016 the respondent’s legal representatives addressed a letter
to the Department of Home Affairs and requested
that whatever the
outcome of the respondent's criminal trial, it had to be ensured that
the respondent was not deported to Rwanda
pending the investigation
of his protection.
[19] On 28 July 2016
the respondent appeared in court. A plea explanation in terms of
section 112
of the
Criminal Procedure Act 51 of 1977
, signed by the
respondent and his legal representative was handed to the court. In
the plea explanation he partly said the following:
'I confirm that I
[plead] guilty voluntarily, without any undue influence and with a
sound mind.
. . . .
I was stopped by a
marked metro police vehicle of which he requested my driver’s
licence of which I produced my [Rwandese]
driver’s license
which was not translated in English. He further asked me if I had
another one and I informed him that was
the only one I had. He
requested to search me and I complied and upon the search he found an
Asylum document that was in my name.
He informed me that he was
arresting me for driving a motorbike without a valid driver’s
license. I was taken to Garsfontein
SAPS for detention.
I
further admit that the Asylum document that was found in my
possession was not lawfully obtained of which I admit that I
contravened
the provisions of
section 18(1)(
i
)
of the Identification Act.'
[20]
The respondent was convicted on both counts after his plea
explanation was handed to court. On count 1 he was fined an amount
of
R1000 or five years' imprisonment and; in respect of count 2 he was
sentenced to six months' imprisonment half of which was
suspended for
five years on condition that he was not convicted of any offence
under
s 18(1)
of the
Identification Act 68 of 1997
committed during
the period of suspension.
[21]
In a letter dated 12 September 2016 addressed by the legal
representatives of the respondent to the Department of Home Affairs,
the respondent’s legal representatives demanded that the
respondent must not be deported to Rwanda; he must be released from
detention and be given an opportunity to apply for asylum in terms of
the
Refugees Act. On
the other hand, the appellant was of the view
that the respondent, after serving his sentence, must be deported to
Rwanda.
[22]
Although convicted for possession of a fraudulent Temporary Asylum
Seeker Permit, the respondent in fact obtained two fraudulent
Temporary Asylum Seeker Permits. Both permits had the same date, ie 1
December 2015. One of the permits indicates Rwanda as his
country of
origin and the other indicates the Democratic Republic of Congo as
his country of origin. There is no explanation regarding
how and
where he got the Temporary Asylum Sekeer Permits. The respondent
obtained the fraudulent permits prior to his release from
the Witness
Protection Programme.
[23]
Section 21(1)
of the
Refugees Act, provides
that an application for asylum must be
made in person in accordance with the prescribed procedures to a
Refugee Reception Officer
at any RRO and
section 21(4)(
a
)
pertinently states:
'
21
Application for
asylum
. . . .
(4) Notwithstanding
any law to the contrary, no proceedings may be instituted or
continued against any person in respect of his
or her unlawful entry
into or presence within the Republic if-
(a)
such person has applied for asylum in terms of subsection (1), until
a decision has been made on the application and, where applicable,
such person has had an opportunity to exhaust his or her rights of
review or appeal in terms of Chapter 4; or
. . . .'
[24]
Section 32
of
the
Immigration Act 13 of 2002
reads as follows:
'
Illegal
foreigner
(1) Any illegal
foreigner shall depart, unless authorised by the Director General in
the prescribed manner to remain in the Republic
pending his or her
application for a status.
(2) Any illegal
foreigner shall be deported.'
Section 34
deals
with the deportation and detention of illegal foreigners and
subsection 1 thereof stipulates that:
'
34
Deportation and detention of illegal foreigners
(1) Without the
need for a warrant, an immigration officer may arrest an illegal
foreigner or cause him or her to be arrested,
and shall, irrespective
of whether such foreigner is arrested, deport him or her or cause him
or her to be deported and may, pending
his or her deportation, detain
him or her or cause him or her to be detained in a manner and at a
place determined by the Director-General
. . . .'
[25]
Section 9
of the
Immigration Act prescribes
that no person shall
enter or depart from the Republic at a place other than a port of
entry – it further provides for procedures
that must be
followed when a person enters the country, and also stipulates that a
foreigner who is not a holder of a permanent
residence permit may
only enter the Republic if her or she is issued with a valid visa.
[26]
Section 21(4)
of the
Refugees Act; however
, provides that
‘notwithstanding any law to the contrary . . . unlawful entry
into or presence within the Republic’
may be condoned where
that person has applied for asylum under ss (1).
[27]
I agree with Satchwell J when, in
Kumah
& others v Minister of Home Affairs & others
[2016]
4 All SA 96
(GJ) in paras 33 to 39 she observed, after referring to
Bula & others v
Minister of Home Affairs & others
[2011]
ZASCA 209
;
2012 (4) SA 560
(SCA)
and
Ersumo v Minister of Home Affairs &
others
[2012] ZASCA 31
;
2012 (4) SA 581
(SCA)
, that asylum seekers who
enter the Republic illegally are merely given a reasonable
opportunity but not an indefinite or unlimited
period in which to
apply for that asylum. It is plain that, apart from any other
considerations, the respondent delayed unreasonably
in applying for
his asylum.
[28]
Section 49
of the
Immigration Act deals
with offences and it provides
that anyone who enters or remains in, or departs from the Republic in
contravention of this Act,
shall be guilty of an offence and liable
on conviction to a fine or to imprisonment not exceeding two years.
Section 49(8)
of the
Immigration Act also
criminalises the production
of a false certification and further mentions possible penalties in
the case of a conviction.
[29]
Regulation 2 of the Refugee Regulations GN R366,
GG
21075, 6 April 2000
deals with an application for asylum. Regulation 2(1) stipulates that
an application for asylum in terms of
section 21
of the
Refugees Act
must
be lodged by the applicant in person at a designated RRO without
delay.
Regulation 2(2)
states that any person who entered the
Republic and is encountered in violation of the Aliens Control Act 96
of 1991, who has not
submitted an application pursuant to
subregulation 2(1), but indicates an intention to apply for asylum
shall be issued with an
appropriate permit valid for 14 days within
which they must approach a RRO to complete an asylum application.
[30]
Section 23(1)
of the
Immigration Act underscores
the requirement that
an application for asylum must be made without delay. It provides
that an asylum transit visa, which is valid
for only five days, may
be issued to a person who at a port of entry claims to be an asylum
seeker, to enable him or her to travel
to the nearest RRO. In terms
of
section 23(2)
, when the asylum transit visa expires before the
holder reports in person to a RRO to apply for asylum, the holder
shall become
an illegal foreigner and be dealt with in accordance
with the
Immigration Act.
[31
]
In its judgment, the court a quo relied on the judgment of this court
in
Bula
.
There the appellants were Ethopian nationals and they arrived in
Johannesburg on 16 June 2011. On the same day they were
confronted by
the police at a house in Mayfair where their fellow Ethopian had
accommodated them. The police asked them to prove
that they were
lawfully resident in South Africa. When they could not produce the
relevant documents they were detained at a police
station from 16
June 2011 until 24 June 2011 and were transferred to Lindela, a
holding facility and repatriation centre. On 27
July 2011 after
consulting with their legal representatives, the latter directed a
letter on their behalf to the Department of
Home Affairs in which
they demanded that all deportation proceedings against them be halted
and that they be released immediately
and offered the opportunity to
apply for asylum. This court then dealt with the provisions of the
Refugees Act and
its regulations and in para 80 said '[i]t follows
ineluctably that once an intention to apply for asylum is evinced the
protective
provisions of the Act and the associated regulations come
into play and the asylum seeker is entitled as of right to be set
free
subject to the provisions of the act.'
[32]
The respondent’s counsel supported the approach adopted by the
court a quo and also relied on the decision in
Bula
supra. The facts of the
Bula
decision are distinguishable from the case before us. On the facts of
this case there is no indication that the respondent had
any
intention of applying for asylum prior to his arrest. On the contrary
he was arrested while driving around in an unlicensed
motorbike using
two fraudulently obtained Temporary Asylum Seeker Permits. The idea
of applying for asylum came to his mind when
he was detained and the
appellant was in the process of arranging for his deportation. The
behavior of the respondent is not consistent
with the behavior of a
person who wanted to apply for asylum. At the time of his
incarceration the respondent was an illegal foreigner
in terms of the
Immigration Act and
liable to arrest and deportation. He was not
covered by the provisions of the
Refugees Act as
he failed to apply
for asylum in terms of
section 21
of the
Refugees Act read
in
conjunction with
regulation 2(1)(
a
).
[33]
In my view the respondent has failed to apply for asylum in terms of
section 21
of the
Refugees Act and
he has also failed to apply for
asylum without delay as required by
regulation 2(1)(
a
).
He had ample opportunity to approach the RRO to apply for asylum but
he failed to do so and instead stayed in the country, secured
employment and relied on a fraudulent Temporary Asylum Seeker Permit.
As a result thereof he was neither covered nor protected
by the
provisions of the
Refugees Act and
the regulations thereto.
[34]
Further, the respondent has contravened
ss 9
and
49
(
i
)
of the
Immigration Act by
entering South Africa at a place other than
a port of entry and remaining in the country in contravention of the
Immigration Act. The
appellant is entitled to deal with the
respondent in accordance with the provisions of
ss 32
and
34
of the
Immigration Act.
[35
] The court a quo
granted the appellant leave to appeal and paragraphs 3 and 4 of that
order read as follows:
'It is a condition
of the grant of leave to appeal that the applicant for leave (the
Minister) must pay the costs of appeal of the
respondent in the
application for leave (Mr Ruta).
The applicant must
pay the respondent’s costs in this application.'
I
do not agree with the costs order of the court a quo when granting
leave to appeal. The appellant has succeeded in its appeal
but my
view is that it will not serve any purpose to grant costs against the
respondent.
[36] In the result
the following order is made.
1. The appeal is
upheld.
2. The order of the
court a quo is set aside and replaced with the following:
'(a) The application
is dismissed.
(b) No order as to
costs.'
__________________
WL
SERITI
JUDGE
OF APPEAL
Mocumie
JA
[37]
I have read the judgment of Seriti JA. However I regret that I cannot
agree with him that the appeal should be upheld. In para
32 my
colleague finds that on the facts of this case there is no
indication that the respondent had any intention of applying
for
asylum prior to his arrest and on this basis holds that he was not
covered by the provisions of the Refugees Act 130 of 1998
(the
Refugees Act). Simply
put, my view is that based on the decisions of
this court in
Bula
v Minister of Home Affairs
[1]
and
Ersumo
v Minister of Home Affairs and others,
[2]
once
a refugee has evinced an intention to apply for asylum, the
protective provisions of the
Refugees Act and
the associated
regulations come into play and the asylum seeker is entitled to be
afforded access to the application process stipulated
in the
Refugees
Act. In
light of this conclusion, I would dismiss the appeal with
costs.
[38]
The background facts are set out in detail in the judgment by my
colleague for which I am grateful. Thus I shall not repeat
them in
this judgment save to the extent that they support my reasoning.
Before I set out my reasons for reaching a different conclusion,
I
must start by saying that I did not understand the issue before us to
be ‘what may be expected of an asylum seeker in the
Republic of
South Africa (South Africa) in order to enjoy the protection afforded
under
section 21
of the
Refugees Act.’ I
understood the issue
to be whether the facts relating to the respondent as presented in
his application in the court below justified
his automatic exclusion
from the refugee status determination procedure in terms of
section 4
of the
Refugees Act. This
is the issue that was debated at length by
the parties in this court. A determination of this issue requires the
interpretation
of
section 4
of the
Refugees Act as
amended.
[39]
In addition to the main issue, which the appellant did not pursue
with the same vigour as in his heads of argument and initial
oral
argument, the appellant raised two other issues linked to the main
issue in substance: ie (a) the non-applicability of
Bula
v Minister of Home Affairs
,
[3]
and
(b) the applicability of the principles set in
Kumah
v Minister of Home Affairs.
[4]
However,
case law, which will further be discussed below, directs us to
regulation 2
and
section 21
of the
Refugees Act as
the starting point
of an inquiry relating to any illegal foreigner who has been
encountered by an immigration officer without having
indicated an
intention to apply for asylum prior to having been encountered or
detained by such officer. Because the respondent,
at the relevant
time, was an illegal foreigner who had been encountered by an
immigration officer, as well as arrested for crimes
committed inside
the Republic, the case before us requires a two-step enquiry:
Firstly, the meaning of
regulation 2
read with
section 21
of the
Refugees Act in
South African case law; and secondly, if the
respondent is in fact entitled to protection in terms of the above
provisions and
whether he is an excluded person in terms of
section
4(1)(
b
)
of the
Refugees Act
>.
The meaning of
regulation 2
in South African case law
[40]
The
preamble to the
Refugees Act states
that the Act is designed to give
effect to the relevant international instruments, principles and
standards relating to refugees
and to provide for the reception of
asylum seekers into South Africa. The
Refugees Act regulates
applications and the recognition of refugee status and provides for
the rights and obligations flowing from that status.
[41]
Regulation 2 of the Refugee Regulations, GN R366,
GG
21075, 6 April 2000 deals with an application
for asylum. Regulation 2(1) stipulates that an application for asylum
in terms of
section 21
of the
Refugees Act must
be lodged by the
applicant in person at a designated Refugee Reception Office (RRO)
without delay.
Regulation 2(2)
states that any person who entered the
Republic and is encountered in violation of the Aliens Control Act 96
of 1991, who has not
submitted an application pursuant to sub
regulation 2(1), but indicates an intention to apply for asylum,
shall be issued with
an appropriate permit valid for 14 days within
which they must approach a RRO to complete an asylum application.
[42]
It is correct, as my colleague indicates in para
32,
that the facts of
Bula
,
as well as
Ersumo
,
are somewhat different to the facts of the matter before us. But the
majority judgment does not state that applications of this
nature are
based on the legal principles propounded in
Bula
and restated in
Ersumo.
I am alive to the
fact that this court did not deal with the interpretation of section
4(1)
(b)
in
Bula.
However, the court did formulate
fundamental
principles which a court faced with an application under the
Refugees
Act, read
with the
Immigration Act 13 of 2002
, must keep in its mind.
This court said the following in paras 80-81:
‘
[O]nce
an intention to apply for asylum is evinced the protective provisions
of the Act and the associated regulations come into
play and the
asylum seeker is entitled as of right to be set free subject to the
provisions of the Act
.
This
court has a keen appreciation of the problems that must inevitably be
visited on the Department in keeping track of numerous persons
in the position of the appellants. As pointed out above, the
[Refugees Act] is in keeping with international conventions and
international
best practice in relation to refugees
.
Section 21(2) obliges applicants for asylum to provide fingerprints
and photographs to enable them to be monitored. The permit
in terms
of section 22(1) of the [Refugees Act] enabling a sojourn in South
Africa may be issued subject to conditions determined
by the
Standing Committee, which are not in conflict with the Constitution
or international law. It does not appear that such conditions
have in
fact been determined. Section 38(1)
(e)
of
the [Refugees Act] enables the minister to make regulations relating
to “the conditions of sojourn in the Republic
of an asylum
seeker, while his or her application is under consideration”.
Such regulations appear not to have been
made. It is for another arm
of Government to prescribe the conditions under consideration. In
this regard see the comments of this
court in
Arse
v Minister of Home Affairs & others
(2010)
(7) BCLR 640
(SCA) para 23.
[5]
It
is not for the judicial arm to do so. The logistical logjam in the
processing of applications for asylum of people detained
at
Lindela is in part due to the absence of a RSDO [
Refugee Status
Determination Officer]
at
Lindela. It is a problem that is easily resolved but it requires an
act of will on the part of the Department
.’
[43]
On the meaning of regulation 2 this court in para 72 of
Bula
held that:
‘
The
regulation does not require an individual to indicate an intention to
apply for asylum immediately [after] he or she is encountered,
nor
should it be interpreted as meaning that when the person does not do
so there and then he or she is precluded from doing so
thereafter.
The purpose of subsection 2 is clearly to ensure that where a foreign
national indicates an intention to apply for
asylum, the regulatory
framework of the [Refugees Act] kicks in, ultimately to ensure that
genuine asylum seekers are not turned
away.’
(My
emphasis.)
[44]
Further, in paras 73 and 74, the court said:
‘
That
does not mean that a decision on the
bona
fides
of the
application is made upfront. Once the application has been made at a
Refugees Reception Office, in terms of section 21 of
the [Refugees
Act], the Refugee Reception Officer is obliged to accept it, see to
it that it is properly completed, render such
assistance as may be
necessary and then ensure that the application together with the
relevant information is referred to a RSDO.
In
terms of
section 22
of the
Refugees Act an
asylum seeker has the
protection of the law pending the determination of his application
for asylum. To that end he or she is entitled
to an asylum seeker
permit entitling a sojourn in South Africa.’
I
will revert to these provisions later in the judgment.
Is the respondent
an excluded person in terms of
section 4(1)(
b
)?
Section 4(1)(
b)
of the
Refugees Act provides
as follows:
‘
Exclusion
from refugee status
(1) A person does
not qualify for refugee status for the purposes of this Act if there
is reason to believe that he or she –
(a)
has committed a
crime against peace, a war crime or a crime against humanity, as
defined in any international legal instrument dealing
with any such
crimes; or
(b)
has committed a
crime which is not of a political nature and which, if committed in
the Republic, would be punishable by imprisonment;
or
(c)
has been guilty of
acts contrary to the objects and principles of the United Nations
Organisation or the Organisation of African
Unity; or
(d)
enjoys the
protection of any other country in which he or she has taken
residence.
(2)
For the purposes of subsection (1)(
c
),
no exercise of a human right recognised under international law may
be regarded as being contrary to the objects and principles
of the
United Nations Organisation or the Organisation of African Unity.’
[45] Consonant with
section 4, section 21 provides:
Application for
asylum
(4)
Notwithstanding any law to the
contrary, no proceedings may be instituted or continued against any
person in respect of his or her
unlawful entry into or presence
within the Republic if –
(a)
such person has applied for asylum in terms of subsection (1), until
a decision has been made on the application and, where applicable,
such person has had an opportunity to exhaust his or her rights of
review or appeal in terms of Chapter 4 . . . .’
[46] Section 4 must
also be read with
section 23(1)
of the
Immigration Act which
provides
that an asylum transit visa, which is valid for only five days, may
be issued to a person who at a port of entry claims
to be an asylum
seeker, to enable him or her to travel to the nearest Refugee
Reception Office. In terms of
section 23(2)
of the
Immigration Act,
when
the asylum transit visa expires before the holder reports in
person to a RRO to apply for asylum, the holder shall become an
illegal
foreigner and be dealt with in accordance with the
Immigration Act.
Proceedings
in
the court below
[47]
In adjudicating the application for an interdict by the respondent
against the appellant’s decision to deport him to
his country
of origin, the court below in
para 11
of the judgment relied on
Bula
to conclude that in
an application of this nature:
‘
it
is not for the court to determine whether the would-be refugee has
any prospects of success in his or her proposed application
for
refugee status. The power and the duty to make this determination is
vested in the Refugee Status Determination Officer alone.
Once a
person communicates to an Officer of the DHA [Department of Home
Affairs] that it is his or her wish to apply for refugee
status, it
is the duty of that officer and, indeed, all the authorities, to
place no obstacles in the way of the prospective applicant
to have
his or her case considered by a Refugee Status Determination
Officer.’
[48] On whether the
respondent feared for his life if the South African Government
deported him to his country of origin, the court
below held that on
the basis of one of the listed exclusions in
section 4(1)(
b
):
‘
Assuming
that the respondents are suggesting that the law of Rwanda renders
them punishable by imprisonment, the applicant’s
decision, on
his own version, not to commit the crime of murder in the Republic
and to sever his connection with the organisation
which wanted him to
be an assassin, I cannot exclude the strong possibility that the
alleged crimes are political in nature.’
Submissions of
the appellant in this court
[49]
Counsel for the appellant both in his heads of argument and oral
argument in this court, submitted that the intention of the
legislature manifest in
section 4(1)
of the
Refugees Act is
that
offences listed in the section should have occurred prior to the
potential asylum seeker applying for asylum. This section
is aimed at
past conduct of an individual prior to his entry into the Republic.
Accordingly, so he argued, to have committed such
offences after
entry into the Republic even before the person concerned has
indicated the desire to apply for asylum, should not
result in any
form of distinction and that
section 4
should be equally applicable
even in situations where the offences were committed inside the
Republic. Counsel argued that there
should therefore be an onus on
such a person to show why under such circumstances the host country
should nevertheless consider
his application for asylum. This
interpretation is based on the interpretation of the provisions of
section 4(1)
(b)
.
[50]
Counsel further submitted that the court below should have applied
the approach adopted in
Kumah
[6]
in relation to the reasonable period within which a person or a
prospective refugee should apply for a permit to be in the Republic.
He argued that to confine the application of
section 4
to offences
committed outside the Republic only, was untenable. It was evident,
so the argument went, that the respondent came
into the Republic
illegally and stayed illegally until he was arrested. It was further
argued that he did not apply for asylum
seeker status within a
reasonable time upon entry into the Republic, and that the objective
facts demonstrate that he had ample
opportunity to apply for asylum
if he wished to do so. That he was found in possession of at least
one fraudulent
section 22
permit ineluctably leads one to the
conclusion that he had no intention of applying for asylum.
Therefore, the respondent was excluded
from the protection of the
Refugees Act and
it was consequently not necessary to give effect to
the asylum procedure provided for in
sections 21
,
22
and
23
of the
Refugees Act.
Submissions of
the respondent in this court
[51]
Counsel for Lawyers for Human Rights on behalf of the respondent,
submitted that the scheme of the
Refugees Act was
such that once the
respondent indicated his intention to apply for a refugee permit, the
appellant was statutorily and duty bound
to take him through the
process provided for in
sections 21
,
22
and
23
of the
Refugees
Act. The
appellant was not entitled to close the door before allowing
the respondent an opportunity to access the process provided in
sections 21
,
22
and
23
. From the scheme of the
Refugees Act, it
was
incumbent on the appellant, considering the seriousness of the
impe
n
ding
deportation of the respondent by the appellant, the
international obligation on South Africa as a signatory to
the United
Nations Convention read with the Constitution of South Africa, in
particular section 36, to allow the respondent to
present his case
before the designated officer who is, in terms of the
Refugees Act,
the
only
person
who
can make a determination one way or the other regarding the status of
the respondent.
[52]
The term ‘without delay’
used in
regulation 2
, is not defined in the Act. In order to clarify
the interpretation thereof, the adopted interpretation should be in
line with the
object and purpose of the
Refugees Act. This
generally
rules out strict literal interpretations, particularly as the purpose
of the
Refugees Act is
to protect the rights of refugees as set out
in its preamble, whilst acknowledging the realities of refugees.
Kumah
is not the
answer, as the appellant was at pains to convince this court.
Therefore, the interpretation of the term ‘without
delay’
should apply on a case by case basis. The interpretation of this
provision must be in line with
section 39(2)
of the Bill of Rights.
[53]
The case that came close to addressing this issue is
Ersumo
,
[7]
where this court held that the final decision on the truthfulness of
an applicant’s claims will need to be taken by a Refugee
Reception Officer and not by this or any other court. The court
further held in para 15 that:
‘
The grounds
upon which an application for asylum may be refused are set out in
section 24(3)
of the [
Refugees
Act]. They
are that the application is
“manifestly unfounded, abusive or fraudulent” or simply
“unfounded”. There
is nothing to indicate that a
meritorious application may be refused merely on the grounds of delay
in making the application
.’
[54]
The court held further in para 16:
‘
It makes no
difference whether the individual entered the country and never
sought an asylum transit permit, or whether they obtained
such a
permit and allowed it to lapse by not reporting to a Refugees
Reception Office. Nor is there any reference to the duration
of the
illegal presence, or to any mitigating factors, such as poverty,
ignorance of these legal requirements, inability to understand
any of
South Africa’s official languages and the like. There is also
no reference to aggravating factors, for example, that
their illegal
entry was deliberate and that they have deliberately sought to avoid
the attentions of the authorities.
Regulation 2(2)
applies to any
foreigner encountered in South Africa, whose presence in this country
is illegal.’
The
same should apply to the respondent, even more so as he was kept in a
safe haven by legal authorities.
[55]
In addition,
this
court said that ‘
Regulation 2(2)
ought to have been the
starting point as the appellants clearly fell within its ambit. They
had not lodged an application within
the terms set out in
Regulation
2(1)(
a
)’.
What follows is that the asylum seeker who has the intention to apply
for asylum must be taken through the process accordingly.
Lest it be
forgotten, it is this court in
Abdi
& another v Minister of Home Affairs
[8]
that expressed the following when describing
section 21
which gives
effect to the Refugee Convention and the surrounding scheme in the
Refugees Act:
‘
The
words of
the Act mirror those of the [Refugee] Convention and the OAU
Convention of 1969. They patently prohibit the prevention
of access
to the Republic of any person who has been forced to flee the country
of her or his birth because of any of the circumstances
identified in
section 2 of the Act. Refugees entitled to be recognized as such may
more often than not arrive at a port of entry
without the necessary
documentation and be placed in an inadmissible facility. Such persons
have a right to apply for refugee status,
and it is unlawful to
refuse them entry if they are
bona fide
in seeking refuge.
’
[56]
To my mind the
contentions made on behalf of the appellant on the interpretation to
be applied on section 4(1)(
b
)
are plainly unsustainable. They fly in the face of the plain language
of section 4 which unambiguously provides that only offences
committed outside the Republic and before entry into the Republic
would disqualify an asylum seeker. Suffice to say that to hold
otherwise would result in an absurdity. The legislature could never
have contemplated such absurdity. The respondent had committed
no
offence outside the Republic
.
[57]
It follows that I do not agree with para 27 of the main judgment
where it is stated:
‘
I
agree with Satchwell J when, in
Kumah
and other related matter v Minister of Home Affairs & others at
paras 33 to 39
she observed, after referring
to Bula & others v Minister of Home Affairs & others,
Abdi
& another v Minister of Home Affairs & others and Ersumo v
Minister of Home Affairs & others,
that
asylum seekers who enter the Republic illegally are merely given a
reasonable opportunity but not an indefinite or unlimited
period in
which to apply for that asylum. It is plain that, apart from any
other considerations, the respondent delayed unreasonably
in applying
for his asylum.
’
In
my view, the respondent came into the Republic illegally but handed
himself over to the law enforcement agencies. It is surprising
that
the law enforcement agencies did not regulate his status while he was
in their care and custody. They knew he was in the Republic
illegally, yet they kicked him out of the programme and unleashed him
onto the unsuspecting society. Thus, the blame that he ‘delayed
unreasonably’ cannot and should not be apportioned to him
alone.
[58]
In para 30 of the main judgment it is stated:
‘
Section
23(1)
of the
Immigration Act underscores
the requirement that an
application for asylum must be made without delay. It provides that
an asylum transit visa, which is valid
for only five days, may be
issued to a person who at a port of entry claims to be an asylum
seeker, to enable him or her to travel
to the nearest RRO. In terms
of
section 23(2)
, when the asylum transit visa expires before the
holder reports in person to a RRO to apply for asylum, the holder
shall become
an illegal foreigner and be dealt with in accordance
with the
Immigration Act.
’
My
view is that the law enforcement agencies involved should have
invoked
section 23
of the
Immigration Act to
ensure that the
respondent is taken through the process to its finality.
[59]
I also cannot agree with para 34 of the main judgment which states
that:
‘
Further,
the respondent has contravened
sections 9
and
49
(i)
of the
Immigration Act by
entering South
Africa at a place other than a port of entry and remained in the
country in contravention of the
Immigration Act. The
appellant is
entitled to deal with the respondent in accordance with the
provisions of
sections 32
and
34
of the
Immigration Act.
’
In
my view, once more, the respondent’s illegal entry was made
legal when he handed himself over to the law enforcement agencies.
When they kicked him out of the Witness Protection Programme, they
should have warned him of the risk that he ran if he did not
approach
the RRO without any delay.
[60]
That having been said, it makes no difference whether the respondent
entered the Republic and never sought an asylum transit
permit. Nor
is there any reference to the duration of the illegal presence in
regulation 2
, or to any mitigating factors, such as poverty,
ignorance of these legal requirements, inability to understand any of
South Africa’s
official languages and the like. There is also
no reference to aggravating factors, for example, that his illegal
entry was deliberate
and that he has deliberately sought to avoid the
attention of the authorities.
Regulation
2(2)
applies
to any foreigner encountered in South Africa whose presence in this
country is illegal
.
[9]
[61]
On these facts alone, the respondent was and still is entitled to be
afforded access to the asylum process under the
Refugees Act. The
fact that he committed offences in the Republic long after his entry
cannot and should not serve as an automatic exclusion from
the
protective provision of
section 4(1)(
b
).
Whether he gave a plausible explanation for his presence in the
Republic and when and how he entered the country, are not matters
for
a court to decide before the departmental process has run its course.
That is for the designated officers in the offices of
the appellant
under the provisions of
sections 21
,
22
and
23
read with other
relevant sections of the
Immigration Act as
well as relevant
international treaties and the Constitution to decide. Accordingly,
the reliance on
Kumah
above cannot assist the appellant.
[62]
But even on the basis of
Kumah,
although not
authoritative in the light of
Bula
and
Ersumo
,
on the facts of this matter, the respondent approached the Hawks
within 2 months of his arrival in the Republic when he decided
not to
go through with the plan to assassinate a person within the
boundaries of the Republic. It is surprising that law enforcement
agencies should have kicked the respondent out of the Witness
Protection Programme with full knowledge that he did not have the
required documents to be in the Republic. They should have ensured
that he had the necessary documentation from the onset.
[63]
It should be borne in mind that the rationale for the exclusion
clauses, when considering their application, is that certain
acts are
so grave as to render their perpetrators undeserving of international
protection as refugees. Their primary purpose is
to deprive those
guilty of heinous acts, and serious common crimes, of international
refugee protection and to ensure that such
persons do not abuse the
institution of asylum in order to avoid being held legally
accountable for their acts. The exclusion clauses
must be applied
‘scrupulously’ to protect the integrity of the
institution of asylum.
[64]
In respect of international law, Article 1F(
b
)
of the 1951 Convention Relating to the Status of Refugees
[10]
contains
similar provisions to section 4(1)(
b
)
of the
Refugees Act. Article
1F(
b
)
requires the crime to have been committed ‘outside the country
of refuge prior to [the individual’s] admission to
that country
as a refugee’. Individuals who commit ‘serious
non-political crimes’ within the country of refuge
are subject
to that country’s criminal law process and, in the case of
particularly grave crimes, to Articles 32 and 33(2)
of the 1951
Convention.
[65]
Clearly, the intention both under the
Refugees Act and
international
law, is that only crimes that have been committed outside the country
of refuge should be given consideration. Thus
it is still essential
for an illegal foreigner who seeks to go through the refugee status
determination process to determine whether
he is entitled to the
protections that fall under the
Refugees Act to
be afforded the
opportunity to do so. This is so, due to the exceptional nature of
the exclusion provisions under
section 4(1)
, particularly
section 4(1)
(b)
and its severe consequences of exclusion for an individual. The
exclusions should be applied in a restrictive manner. To do
otherwise,
as the appellant strenuously attempted to convince this
court, would be on the basis of sheer speculation on the possible
outcome
of the refugee status of the respondent
.
[66] Taking into
account the interpretation of this judgment there is no doubt that a
sensible approach is one that allows for due
process of the law when
dealing with refugee law, the
Refugees Act and
its regulations that
prescribe the procedure to be followed when applying for asylum. The
respondent is entitled to be taken through
the refugee status
determination application process as he has indicated his intention
to apply for asylum, regardless of whether
he committed offences that
are political or non-political in nature. This resonates with the
approach adopted in
Bula
in para 77 where it was said:
‘
As
is abundantly clear the scheme of the Act is that it is for the RSDO
to determine the merits of an application for asylum and
not for a
prior interrogation by a court. In the passage in
Abdi
,
relied on by the Minister and the DG, this court was stating the
obvious. It does not follow that in the passage referred to this
court intended to convey what is presently submitted on behalf of the
Minister. On the contrary, the concluding sentence in para
22
of
Abdi
makes
it clear that the Department’s officials are obliged to ensure
that once there is an indication of an intention
to apply for asylum
they assist the person concerned to lodge such an application at a
Refugee Reception Office.
’
[11]
[67]
Finally, on the proper interpretation of section 4(1)(
b
)
the Constitutional Court in
Mail
and Guardian Media Ltd and Others v Chipu NO & others
[12]
stated:
‘
A
literal
reading of section 4(1)
(b)
is
that an applicant for asylum who has committed a non-political crime
which, if committed in South Africa, would be punishable
by
imprisonment is disqualified from refugee status. However, it may
well be that section 4(1)
(b)
should
not be read literally and rigidly.
Section
4(1)(b) seeks to give effect to, among others, the 1951
Refugee Convention. A reading of part of the United
Nations High
Commissioner for Refugees Handbook and Guidelines on Procedures and
Criteria for Determining Refugee Status (UNHCR
Handbook) dealing with
the provisions of the 1951 Refugee Convention reveals that the
relevant provision of the convention should
not be read rigidly and
that there are circumstances in which a person who has committed
a non-political crime may, nevertheless,
qualify for refugee status
.
Under
the Act a person who wants to obtain refugee status is required to
attend in person at the Refugee Reception Office (reception
office)
where he or she must apply for that status. At the
Reception Office an asylum seeker will be attended to by a
reception officer. The Reception Officer has the power to conduct an
inquiry in order to verify the information furnished in the
application. The reception officer is required to forward the
application to an RSDO who has the power to make a decision
on that
application. An RSDO is required to grant asylum or reject the
application as manifestly unfounded, abusive or
fraudulent or reject the application as unfounded or refer any
question of law to the Standing Committee established in terms
of s 9
of the Act. An RSDO may request any information or clarification
from an applicant or the Refugee Reception Office. He
or she may
also, where necessary, consult with and invite a UNHCR representative
to furnish information on specified matters. With
the permission
of the asylum seeker, an RSDO may also provide the UNHCR
representative with such information as the latter may
request.’
(My emphasis.)
[68]
In line with
Bula,
Ersumo
and
Mail
& Guardian
there can be no doubt that the respondent is entitled to the
protection of the
Refugees Act whether
the offences are political or
non-political and regardless whether they were committed inside or
outside the Republic. We as a
nation have chosen to advance human
rights, especially in respect of refugees. By ratifying the UN
Convention and other regional
treaties we have committed ourselves
not to be party to the deportation of any refugee or potential
refugee to another country
without the assurance that he or she will
not be subjected to any form of severe punishment, including torture.
This is what the
Constitutional Court in
Minister
of Home Affairs & others v Tsebe & others
[13]
warned
courts against,
albeit
in
somewhat extreme circumstances than in this matter.
[69]
Interpreting and applying the
Refugees Act and
the
Regulations in the manner suggested by the appellant, goes against
the very objective of the
Refugees Act set
out in its preamble –
which is
to give effect to the
relevant international instruments, principles and standards relating
to refugees and to provide for the reception
of asylum seekers into
South Africa. To interpret it otherwise would lead to results that
the legislature never intended, ie not
to give potential asylum
seekers protection at any time that they apply for such status. This
is so because the legislature had
the opportunity to address this on
more than one occasion when it amended the
Refugees Act in
2011 and
subsequently promulgated the
Prevention of Combating and Torture of
Persons Act 13 of 2013
, but it did not.
Section 8
of the
Prevention
of Combating and Torture of Persons Act provides
that:
‘
no
person shall be expelled, returned or extradited to another State
where there are substantial grounds for believing that he or
she
would be in danger of being subject to torture.’
[70]
In my view the
conclusion reached by the court below cannot be faulted. In the
result, I would dismiss the appeal with costs.
__________________
BC
Mocumie
Judge
of Appeal
APPEARANCES
:
For
Appellant: G Bofilatos SC
Instructed
by: The State Attorney, Pretoria
The
State Attorney, Bloemfontein
For
Respondent: Advocate Lesirela Letsebe
Instructed
by: Lawyers for Human Rights, Pretoria
Webbers
Attorney, Bloemfontein
[1]
Bula
& others v Minister of Home Affairs & others
[2011] ZASCA 209; 2012 (4) SA 560 (SCA).
[2]
Ersumo v Minister of
Home Affairs
&
others
[2012] ZASCA
31; 2012 (4) SA 581 (SCA).
[3]
Bula
fn 1 above.
[4]
Kumah
& others v Minister of Home Affairs & others
[2016]
4 All SA 96 (GJ).
[5]
Bula
fn
1 above.
[6]
See fn
4 above.
[7]
See fn
2 above para 8.
[8]
Abdi
& Another v Minister of Home Affairs & others
[2011] ZASCA 2
;
2011 (3) SA 37
(SCA) para 22.
[9]
See fn 2 above.
[10]
UN General Assembly,
Convention
Relating to the Status of Refugees
,
28 July 1951, United Nations, Treaty Series, vol. 189, p. 137.
[11]
See fn 1 above.
[12]
Mail
and Guardian Media Ltd & others v Chipu NO & others
[2013]
ZACC 32
; 2013
(6)
SA 367 (CC)
para
30-31.
[13]
Minister
of Home Affairs & others v Tsebe & others
[2012] ZACC 16
;
2012 (5) SA 467
(CC)paras 67-68.