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[2018] ZASCA 191
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Refugee Appeal Board of South Africa and Others v Mukungubila (185/2018) [2018] ZASCA 191; 2019 (3) SA 141 (SCA) (19 December 2018)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 185/2018
In
the matter between:
THE
REFUGEE APPEAL BOARD
OF
SOUTH
AFRICA                                                                              FIRST

APPELLANT
THE
DIRECTOR-GENERAL:
DEPARTMENT
OF HOME AFFAIRS                                               SECOND

APPELLANT
THE
MINISTER OF HOME
AFFAIRS                                                   THIRD

APPELLANT
and
PAUL JOSEPH MUTOMBO
MUKUNGUBILA                                              RESPONDENT
Neutral
citation
:
The
Refugee Appeal Board of South Africa and others v Mukungubila
(185/2018)
[2018] ZASCA 191
(19
December 2018)
Coram:
Maya P, Wallis, Mbha and Schippers JJA and Mothle
AJA
Heard:
30 August 2018
Delivered:
19 December 2018
Summary:
Immigration  –
Refugees Act
130 of 1998
– application for asylum – excluded by
Refugee Status Determination Officer in terms of
s 4(1)(
a
)
and (
b
) of
the Act – failure to make finding that asylum application
rejected because it was manifestly unfounded, abusive or fraudulent

or rejected as unfounded under
s 24(3)(
b
)
or (
c
) of
the Act and set out reasons therefor a reviewable irregularity –
exclusion decisions under
s 4(1)(1)(
a
)
and (
b
)
subject to the internal remedies of the Act and asylum seeker
entitled to appeal to Refugee Appeal Board – requirements
for
the grant of declaratory relief restated – court not in as good
a position as the Refugee Appeal Board to decide asylum
application
and matter to be remitted to it to determine appeal.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Pretoria (Maluleke AJ sitting as court of first
instance):
1 The appeal succeeds to
the extent that paragraphs 1, 3, 4, 5 and 6 of the order of the court
a quo are set aside.
2 The matter is referred
back to the Refugee Appeal Board to determine the respondent’s
appeal in terms of
s 26
of the
Refugees Act 130 of 1998
.
JUDGMENT
Maya
P
(Wallis, Mbha and Schippers JJA and
Mothle AJA concurring):
Introduction
[1]
This is an appeal against the judgment of the Gauteng Division,
Pretoria (Maluleke AJ). The court a quo reviewed and set aside
the
decision of the first appellant, the Refugee Appeal Board of South
Africa (the RAB). The RAB declined to entertain an appeal
lodged by
the respondent, Mr Paul Joseph Mutombo Mukungubila, an asylum
seeker
[1]
from the Democratic Republic of Congo (the DRC). The court a quo then
replaced the RAB’s decision with one granting Mr Mukungubila

asylum
[2]
in the Republic of South Africa and related declaratory relief. The
appeal is with leave of the court a quo.
Facts
[2]
According to the founding and supplementary affidavits, Mr
Mukungubila is a citizen of the DRC who seeks asylum in South Africa

in terms of s 21 of the Refugees Act 130 of 1998 (the
Refugees
Act).
>
[3]
He
describes himself as a politician and a prophetic religious leader.
His organisation, the Ministry for the Restoration from Black
Africa,
is based in the DRC and had over a thousand members. He has also
worked for a Human Rights Organisation known as C.I.F.D.H.
He alleged
that he left the DRC out of fear that he would be persecuted and
murdered by the DRC military and police forces. This
had happened to
some of his followers, who were savagely attacked and killed by the
DRC security forces whilst unarmed and engaged
in peaceful
demonstration in an attempt to voice legitimate political protest.
The attacks arose from his opposition to and public
criticism of the
DRC President, Mr Joseph Kabila, against whom he had previously
contested presidential elections in the DRC.
He
alleged that he had on a number of previous occasions been a victim
of Mr Kabila’s militia.
[3]
Mr Mukungubila entered South Africa
on
6 January 2014. He applied for asylum and was issued with an Asylum
Seeker Permit (the permit) on 27 January 2014 in terms of
s 22
of the
Refugees Act, pending
the outcome of his asylum application. The
permit, which was valid for a period of 30 days at a time, was
extended a few times
up to 30 June 2014. On that date his asylum
application was rejected by the Refugee Status Determination Officer
(the RSDO), on
the basis of the exclusions set out in
s 4(1)
(a)
and
(b)
of
the
Refugees Act.
Mr
Mukungubila did not accept this decision and intended to exercise his
right of appeal to the RAB under
s 26
of the
Refugees Act.
[4
]
[4]
In preparation therefor, on 17 July 2014 he launched urgent
proceedings against the second appellant, the Director-General of
the
Department of Home Affairs (the DG), and the third appellant, the
Minister of the Department of Home Affairs (the Minister),
in the
Gauteng Division, Johannesburg. He sought to interdict the Department
of Home Affairs from detaining him and instituting
any proceedings
against him on the basis of his immigration status and presence in
South Africa until he had exhausted the internal
remedies and, if
necessary, judicial review and appeal processes available to him
under the law. He also sought an extension of
the permit pending his
appeal to the RAB. He undertook to lodge the latter proceedings
within ten days, and, thereafter launch
judicial review proceedings
against the RAB’s decision within 30 days of its making, if the
need arose. The urgent application
was successful and on 25 July 2014
he was granted an order as prayed.
[5]
[5]
The success, however, did not extend to his appeal to the RAB, which
he lodged on 24 July 2014. The RAB dismissed it on the
basis that he
lacked the locus standi to bring the appeal and that in terms of
s
24(3)
(c)
and
s 26(1)
of the
Refugees Act, read
with the Refugee Appeal Board
Rules, the RAB lacked the jurisdiction to entertain an appeal brought
against the RSDO’s rejection
of an asylum application under
s
4(1)
(a)
and
(b)
of the
Refugees Act.
[6
]
As these processes were playing out, other proceedings, which ended
up in the magistrate’s court, were being pursued against
Mr
Mukungubila. Between February and May 2014, the Director of Public
Prosecutions (the DPP) and the Minister of Justice and Constitutional

Development (the Minister of Justice) were informed by Interpol and
the DRC Attorney-General of an application by the DRC government
for
Mr Mukungubila’s extradition.
[6]
On
5 May 2014 the Minister of Justice issued a notice in terms of s
5(1)
(a)
of
the Extradition Act 67 of 1962.
[7]
The notice confirmed receipt of a request for the surrender of Mr
Mukungubila from South Africa to the DRC to stand trial on various

criminal charges – a charge of murder contrary to articles 43
and 44 of the Criminal Code of the DRC; a charge of intentional

aggravated assaults contrary to article 43 of the Criminal Code of
the DRC; a charge of malicious destruction contrary to articles
110
and 112 of the Criminal Code of the DRC; and a charge of arbitrary
and illegal detention contrary to article 67 of the Criminal
Code of
the DRC.
[7]
Mr Mukungubila was subsequently arrested at the instance of Interpol
on 15 May 2014 on the authority of a warrant for arrest
issued
pursuant to the provisions of s 5(1)
(a)
of the Extradition Act. But he was released on bail on the same day
pending the outcome of an extradition enquiry in terms of s
10 of the
Extradition Act.
[8]
Thereafter
he sought to have the extradition enquiry stayed pending the
finalisation of his asylum application. He also launched
review
proceedings to challenge the RAB’s decision when it would not
respond to his questions seeking clarity on the process
it employed
in making its determination. The DPP initially opposed the interim
relief sought in the review proceedings, but subsequently
agreed to a
stay of the extradition enquiry pending finalisation thereof. The
extradition process therefore remains suspended until
this litigation
runs its course.
Proceedings
in the court a quo
[8]
Mr Mukungubila sought relief under two headings in the review
proceedings. In Part A of his Notice of Motion he sought interim

relief, namely a stay of the extradition proceedings ‘pending
the outcome of the relief sought in Part B (including any subsequent

appeal)’. It is in Part B that he sought the substantive review
relief, inter alia, (a) the review and setting aside of the
RAB’s
decision that it had no jurisdiction to entertain his appeal; (b)
declarators that (i) a RSDO can determine whether
or not asylum
should be granted to an applicant notwithstanding the existence of an
application for the extradition of such applicant;
(ii) the RAB has
jurisdiction to determine appeals in such matters from the RSDO;
(iii) pending the outcome of an asylum seeker’s
application for
asylum, and appeal therefrom, if prosecuted, no extradition of such
applicant can take place; (iv) the decision
to grant refugee status
to an applicant is to be made independently of the fact of the
existence of extradition proceedings; and
(v) upon a finding of an
applicant’s qualification for refugee status in terms of the
Refugees Act, no extradition
of the successful applicant can occur;
and (c) an order granting him asylum.
[9]
The appellants and their erstwhile co-respondents opposed the
application. But they filed no answering affidavit in respect
of Part
A of the Notice of Motion and it was consequently set down for
hearing on the unopposed roll. On 14 November 2014 an enquiry
in
terms of s 10 of the Extradition Act, in respect of Mr Mukungubila.
Makhubele AJ, in the Gauteng Division, Pretoria,
granted an order
‘pending the outcome of the relief sought in Part B (including
any subsequent appeal) interdicting the [Additional
Magistrate,
Johannesburg and the Director of Public Prosecutions, Gauteng Local
Division] from commencing with and conducting
[10]
Part B was thereafter set down for adjudication before the court a
quo. Mr Mukungubila challenged the RAB’s decision
on the
grounds that it was procedurally unfair, materially influenced by
mistakes of law, was taken on the basis of irrelevant
considerations
and disregarded relevant considerations, was taken under the wrongful
dictates of an extraneous urgency, and was
ultra vires the powers
which the
Refugees Act vested
in the RAB and obliged the RAB to
entertain the appeal.
[11]
The court a quo was persuaded by Mr Mukungubila’s contentions.
It dealt with the matter on the erroneous basis that the
appellants
had not filed an answering affidavit, which they had done, although
they did not respond to the factual allegations
made in the founding
and supplementary affidavits. (Nothing turns on this misdirection as
the facts and the court’s findings
thereon were not disputed.)
In the court’s view, the RAB’s decision that Mr
Mukungubila had no locus standi to
launch the appeal was unlawful as
it was made solely on the strength of Interpol’s untested
allegations against him, without
affording him a hearing. The court
found that the RAB’s refusal to entertain the appeal was ‘ultra
vires its powers’
because
s 14(1)
(a)
of the
Refugees Act obliges
the RAB to
hear and determine any question of law referred to it or any appeal
lodged in terms of the provisions of the
Refugees Act.
[12
]
The court a quo held that Mr Mukungubila posed no danger to South
Africa, entertained a well-founded fear of persecution and that
the
appellants had deliberately and unlawfully hampered his efforts to
exhaust the internal remedies afforded by the
Refugees Act. In
the
court’s view, these reasons and its finding that there was no
evidence that a newly constituted RAB would be available
to determine
the appeal, if remitted, constituted exceptional circumstances
warranting the substitution of the RAB’s decision.
The court a
quo also found that Mr Mukungubila had made out a case for the grant
of the interim relief as his asylum application
was pending when the
extradition proceedings were initiated.
[13] It is necessary in
light of the decision I make to set out the order granted by the
court a quo, to which I will return later,
in full. It reads:
‘
1.
Pending the outcome of the relief sought in Part B (including any
subsequent appeal) the First and Third Respondents are interdicted

from commencing with and conducting an inquiry in terms of Section 10
of the Extradition Act 76 of 1962 in respect of the Applicant.
2. The decision of the
4
th
Respondent, communicated in the letter addressed to
the Applicant’s attorney dated 21 August 2014, wherein the 4
th
Respondent refused to entertain the Applicant’s appeal of the
rejection by the Refugee Status Determination Officer (RSDO)
at the
Marabastad Refugee Reception Office on 30 June 2014, of the
Applicant’s application for asylum in terms of Section
21 of
the Refugees Act 130 of 1998 (“the
Refugees Act and/or
the
Act”), is declared to be inconsistent with the Constitution of
the Republic of South Africa, unlawful and invalid; and
is hereby
reviewed and set aside.
3. The 4
th
Respondent’s failure to have granted the Applicant asylum in
terms of
Section 3
of the
Refugees Act; and
to have ruled that the
Applicant could not be instructed to leave the Republic of South
Africa as advised on 7 July 2014, alternatively
deported from the
Republic of South Africa by virtue of
Section 2
of the
Refugees Act,
is
declared to be inconsistent with the Constitution of the Republic
of South Africa, unlawful and invalid; and is hereby reviewed
and set
aside.
4. The Applicant is
entitled to appeal his refused application for Refugee status and is
hereby granted asylum.
5. That the Applicant
cannot be instructed to leave the Republic of South Africa,
alternatively be deported from the Republic of
South Africa unless
the State demonstrates that the circumstances set out in Section 2 of
the Act no longer apply in respect of
the Applicant.
6. It is hereby declared
that:
6.1 a Refugee Status
Determination Officer can determine whether or not asylum should be
granted to an applicant therefore, notwithstanding
the existence of
an application for the extradition of such applicant;
6.2
the Refugee Appeal Board has jurisdiction to determine appeals in
such matters from the Refugee Status Determination Officers
of the
fifth Respondent;
6.3 pending the outcome
of an asylum seeker’s application for asylum, and appeal
therefrom, if prosecuted, no extradition
of such applicant can take
place;
6.4
the decision to grant refugee status to an applicant is a decision to
be made independently of the fact of the existence of
extradition
proceedings; and
6.5 upon a finding of an
applicant’s qualification for refugee status in terms of the
Act, no extradition of the successful
applicant can occur.
7. The fourth, fifth and
sixth Respondents are ordered to pay the costs of this Application
including the costs of counsel, jointly
and severally, the one paying
the other to be absolved.’
On appeal before us
[14]
The issues on appeal were whether (a) Mr Mukungubila was excluded in
terms
s 4(1)
of the
Refugees Act from
obtaining asylum; (b) the RAB
had jurisdiction to entertain his appeal against the decision of the
RSDO; (c) it was permissible
for the court a quo to grant Mr
Mukungubila asylum; and (d) it was permissible for the court a quo to
make the various declaratory
orders. The nub of the appellants’
argument was that the RSDO’s decision was correct because the
asylum application
was manifestly unfounded ie was made on grounds
other than those on which such an application may be made under the
Refugees Act
[9
]
as
envisaged in
s 24(3)(
b
)
of the
Refugees Act. This
submission however mutated during the
course of the hearing and it was contended that the application was
not manifestly unfounded
but abusive ie was made with the purpose of
defeating or evading criminal or civil proceedings or the
consequences thereof
[10]
as contemplated in the same provisions. It was argued further that
even if this submission was wrong, the court a quo should
nevertheless
have remitted the matter to the Standing Committee or
the RAB as it was not entitled to grant Mr Mukungubila asylum. The
award
of costs against the RAB was also challenged on the ground that
it neither filed opposing papers nor participated in the proceedings

in any manner, as it had to remain neutral as an independent body and
should accordingly not have been mulcted with the costs of
the
proceedings.
[15] Mr Mukungubila
defended the judgment of the court a quo for the reasons it gave. But
the parties were agreed, rightly so, that
the order made by the court
a quo staying the extradition proceedings was incompetent and had to
be set aside as the issue was
not placed before it and the relief had
already been granted. Mr Mukungubila accordingly abandoned the order.
Statutory framework
[16]
The starting point is the purpose of the
Refugees Act.  The
statute gives effect, within South Africa, to the relevant legal
international instruments, principles and standards relating to

refugees, provides for the reception of asylum seekers, regulates
applications for and recognition of refugee status and the rights
and
obligations flowing from such status. It stipulates, in
s 6
, that its
provisions must be interpreted and applied with due regard to the
Convention Relating to the Status of Refugees of 28
July 1951 (1951
Convention), the Protocol Relating to the Status of Refugees of 4
October 1967, the Organisation of African Unity
Convention Governing
the Specific Aspects of Refugee Problems in Africa of 10 September
1969, the Universal Declaration of Human
Rights, 1948 and any other
relevant convention or international agreement to which South Africa
is or becomes a party.
[11]
[17]
Section 2
provides a general prohibition of refusal of entry,
expulsion, extradition or return to any country to any person where
his or
her life, physical safety or freedom would be threatened.
[12]
In terms of
s 3
of the
Refugees Act, subject
to the lodgement of an
application for asylum under
s 21
thereof,
‘
.
. . a person qualifies for refugee status for the purposes of [the]
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
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
).’
Cessation
of a person’s refugee status is provided for in
s 5
of the
Refugees Act.
[13
]
[18]
Section 4
of the
Refugees Act excludes
certain categories of people from being granted
refugee status. It provides:
‘
(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.’
The
object of these provisions, which are mainly modelled after article
1F(b) of the 1951 Convention, is to ensure that persons
guilty of
heinous acts and serious common crimes do not abuse the institution
of asylum in order to avoid being held legally accountable
for those
acts.
[14]
[19] Section 24 governs
the procedure to be followed by the RSDO upon receipt of an
application for asylum. It reads:
‘
(1) Upon
receipt of an application for asylum the Refugee Status Determination
Officer-
(a)
in order to make a decision, may request any information or
clarification he or she deems necessary from an applicant or Refugee

Reception Officer;
(b)
where necessary, may consult with and invite a UNHCR representative
to furnish information on specified matters; and
(c)
may, with the permission of the asylum seeker, provide the UNHCR
representative with such information as may be requested.
(2) When considering an
application the Refugee Status Determination Officer must have due
regard for the rights set out in section
33 of the Constitution, and
in particular, ensure that the applicant fully understands the
procedures, his or her rights and responsibilities
and the evidence
presented.
(3) The Refugee Status
Determination Officer must at the conclusion of the hearing-
(a)
grant asylum; or
(b)
reject the application as manifestly unfounded, abusive or
fraudulent; or
(c)
reject the application as unfounded; or
(d)
refer any question of law to the Standing Committee.
(4) If an application is
rejected in terms of subsection (3)
(b)
-
(a)
written reasons must be furnished to the applicant within five
working days after the date of the rejection or referral;
(b)
the record of proceedings and a copy of the reasons referred to in
paragraph
(a)
must
be submitted to the Standing Committee within 10 working days after
the date of the rejection or referral.’
[20]
Section 25
of the
Refugees Act empowers
the Standing Committee to review any decision
taken by a RSDO in terms of
s 24(3)
(b)
. As previously
indicated,
s 26
entitles an asylum seeker to appeal against the
decision of the RSDO that rejects his or her asylum application as
‘unfounded’,
in terms of
s 24(3)
(c)
, to the RAB,
which may confirm, set aside or substitute the decision. The section
reads:
‘
(1)
Any asylum seeker may lodge an appeal with the Appeal Board in the
manner and within the period provided for in the rules if
the Refugee
Status Determination Officer has rejected the application in terms of
section 24(3)
(c)
.
(2) The Appeal Board may
after hearing an appeal confirm, set aside or substitute any decision
taken by a Refugee Status Determination
Officer in terms of
section
24(3).
(3) Before reaching a
decision, the Appeal Board may-
(a)
invite the UNHCR representative to make oral or written
representations;
(b)
refer the matter back to the Standing Committee for further inquiry
and investigation;
(c)
request the attendance of any person who, in its opinion, is in a
position to provide the Appeal Board with relevant information;
(d)
of its own accord make further inquiry or investigation;
(e)
request the applicant to appear before it and to provide any such
other information as it may deem necessary.
(4) The Appeal Board must
allow legal representation upon the request of the applicant.’
Analysis
[21]
Regarding the question whether
s 4(1)
of the
Refugees Act excludes
Mr
Mukungubila from being awarded refugee status, it was contended for
the appellants that he failed to qualify for asylum in terms
of
s
4(1)
(a)
because there was reason to believe that he had committed crimes
against peace, as defined in the international instruments dealing

with such crimes, and was further excluded in terms of
s 4(1)
(a)
as there was reason to believe that he
had committed crimes which were not of a political nature and which,
if committed in South
Africa, would be punishable by imprisonment.
[22]
Section 4
requires the person considering the question of an asylum
applicant’s qualification for refugee status to be satisfied
that
there is reason to believe that the applicant has committed the
crimes envisaged in the provision. The ‘reason to believe’

must be constituted by an objective factual basis giving rise thereto
and a blind belief, or a belief based on such information
or hearsay
evidence as a reasonable man ought or could not give credence to,
does not suffice.
[15]
[23] But this aspect of
the enquiry need not engage us in this matter. In my view, the
appellants do not pass the first hurdle,
which related to the
findings and reasons therefor underlying the decision reached by the
RSDO. It is necessary to cite from the
decision extensively for
proper context. The first part set out Mr Mukungubila’s claim
and his version of the events that
he alleged caused him to flee his
country. It reads:
‘
INTRODUCTION
The Applicant is an adult
male born on the 25
th
day of December 1947 in Kisala, DRC.
The Applicant mentioned that he is married. The Applicant mentioned
further that he fled his
country of origin on the 03
rd
day
of January 2014 and arrived in South Africa on the 06
th
day of January 2014.
APPLICANT’S
CLAIM
You claim that you flee
your country of origin due to political problems. You alleged that
you are a Prophet by profession and you
were also working for Human
Rights Organisation (C.I.F.D.H/D-ONGD.H) in your country of origin.
You alleged further that you were
concerned about the civilians who
were being killed in North Kivu where you even [criticised] the
President of the country in an
open letter.
You alleged further that
on the 5 day of December 2013 you wrote an open letter to criticise
the President that he is the one who
is killing the innocent people
in North Kivu.
You alleged further that
you gave two people [with instructions] to distribute the letter to
the President Officer, Ministers Office
and even to Embassy office.
You alleged further that
your letter [caused] another conflict in your country of origin where
many people were killed who were
distributing the letter to the
public.
You alleged further that
one of the people [to] whom you gave the letter to [distributed it]
to the [President’s] office,
Minister’s Office and
Embassy Office, the government soldiers went to his compound and
[started] shooting at his house.
You alleged further that
you were advised to run away because the government soldiers were
coming to your place.
You alleged further that
you did not want to run away because you would be betraying your
people.
You alleged further that
you saw it that it was serious and then [followed] the instruction of
running away.
You alleged further that
you ran away with few members of your family since it was an intense
situation and unprepared one.
You alleged further that
some of your family members were arrested in Zambia because you were
in different vehicles.
You
alleged further that you then decided to come to South Africa to seek
refuge.’
[24] The RSDO then
proceeded to deal with the merits of the application as follows:
‘
THE
LAW RELATING TO REFUGEES
Refugee Act 130 of 1998.
The relevant provisions are summarized thereafter
1.  A person
qualifies as a refugee if:
[a] He or she has a
well-founded] fear of being persecuted by reasons of his or her race,
tribe, religion, nationality, political
opinion or membership of
particular social group or
[b] He or she was
compelled to leave his or her habitual place of residence in order to
seek [refuge] elsewhere owing to external
aggression, occupation,
foreign domination or events seriously disturbing or disrupting
public order in either part or the whole
of his or her country of
origin or nationality.
[c] is a Dependant of a
person contemplated in paragraph (a) or (b).
2.  A person may not
be removed from South Africa to any country where he or she may be
subjected to persecution or where his
or her life, physical safety
would be threatened for reasons set out [in] 1 above.
BURDEN OF PROOF
The burden of proof is on
the applicant to show that he or she is entitled to refugee status.
The standard of proof is that of real
“risk” and must be
considered in the light of all the circumstances i.e. past
persecution and a forward looking [appraisal]
of risk.
FINDINGS
DR Congo “prophet”
urges Kabila to quit after attacks kill 100
By Habibou Bangre (AFP)
Dec 31, 2013
Kinshasa A
self-proclaimed “prophet” and televangelist blamed for
violence that killed more than 100 people in DR Congo’s
two
main cities Tuesday denied fleeing the country and called on the
President to resign. Supporters of Joseph Mukungubila Mutombo,
who
describes himself as God’s “last envoy to humanity after
Jesus Christ and Paul of Tarsus”, blamed the army
for deadly
unrest in Kinshasa and Lubumbashi which he called a “massacre”.
The government said its forces had fought
back a “terrorist
offensive” on Monday, including attacks on the airport, the
main army headquarters in the capital
and in the second city of
Lubumbashi. Government spokesman Lambert Mende said 103 people were
killed – 95 attackers and eight
members of the armed forces –
and Mukungubila was now on the run. “The death toll is heavy,
very heavy,” he told
reporters. Mukungubila, who ran for
president in 2006, had charged in a December 5 open letter that
President Joseph Kabila was
colluding with the regime of neighbouring
Rwanda and argued he should not remain head of state.
“
He
has, courageously, vanished,” Mende said. “He himself
does not believe that his cause is right, a cause for which
he is
claiming responsibility in phone calls from a neighbouring country,
or not too far away from ours. This man is a fugitive,
he’s on
the run,” he said. The preacher told AFP by telephone the
allegation was incorrect, without saying more about
his whereabouts,
and demanded that Kabila step down.
“
Let
him resign, let him quit,” Joseph Mukungubila said.
“
It
is unacceptable that a foreigner should be the head of state. This is
unacceptable,” he said, referring to claims by Kabila’s

foes that he is Rwandan. The pastor also rejected the official
version of Monday’s violence, which he called a “massacre”.
“
They
(the assailants) were empty-handed … How do you explain that?
Empty-handed! If you see
the pictures of the bodies, there are no weapons.” After taking
control early Monday of the national
radio and television premises in
Kinshasa and holding reporters hostage, some armed youths clearly
stated they were acting for
Mukungubila, whom they call “the
prophet of the eternal”. His “Ministry of Restoration
from Black Africa”
said in an online statement published Monday
that the armed forces had attacked the pastor’s home in
Lubumbashi on Sunday,
drawing armed reprisals. Pastor allied with
foes of Kabila. They said tempers flared when the authorities in
Lubumbashi arrested
“children” handing out copies of the
preacher’s open letter, in which he “told the truth that
is to say
we cannot have a foreigner at the head of the country.”
Mukungubila, 66, has allied himself with foes of Kabila who assert

that he is a native – and a puppet – of neighbouring
Rwanda, which has long played a key role in the affairs of its
vast
western neighbour, as both invader and ally. This claim is unproven
and denied by family members who say that Kabila was born
in a rebel
camp run by his late father, Laurent-Desire Kabila, who in 1997
ousted dictator Mobutu Sese Seko. In his New Year message,
Kabila
called for “all-out vigilance” in the wake of the recent
wave of violence and said that “the victory of
our troops
against the forces of evil does not allow us to rest on our laurels”.
The flare-up came after news Sunday the
country’s top cop was
dismissed and replaced by an ethnic Tutsi, sparking suspicion among
some Kabila critics of Rwandan
meddling.
Kabila was in the mining
capital of Lubumbashi when a group of men stormed the set of a live
programme by the state broadcaster
in Kinshasa, nearly 1,000 miles
away. His absence from the capital and the ensuing chaos sparked
fears of a coup in the vast mineral-rich
nation but Defence Minister
Alexandre Luba Ntambo soon announced the situation was under control.
“I was really frightened
yesterday. I heard heavy gunfire while
I was at the market with my two children… We fled,”
household help Chantal
said. The head of the United Nations mission
in the country (MONUSCO) condemned the violence and called for the
authorities to
investigate. Shops that had closed and inhabitants who
had stayed at home amid the confusion were back open and on the
streets
of Kinshasa Tuesday, an AFP correspondent reported. Monday’s
statement by the preacher’s office described how a kind
of
divine shield allegedly protected Mukungubila’s residence from
army shelling. “Then they began to shell the residence…

The shells did nothing, they didn’t even damage vehicles,”
it said.
Witnesses in Lubumbashi
however told AFP Tuesday that the self-styled religious leader’s
house had been largely demolished.
On his Ministry of
Restoration website, Mukungubila is described as “the prophet
of God, by whom the creator is speaking to
us on this world today”.
In another somewhat cryptic post, the website says Mukungubila’s
birth on December 26, 1947
coincided with the fall of a star “of
the same type as that of Bethlehem”.
DRC “prophet”
accused of killings arrested in Johannesburg 2014-05-16 07:04.
Johannesburg –
Police on Thursday detained for a few hours a self-proclaimed
“prophet” who is wanted by Kinshasa
over his role in
violence that claimed more than 100 lives in the DRC’s two main
cities.
Joseph Mukungubila
Mutombo, who describes himself as God’s “last envoy to
humanity after Jesus Christ and Paul of Tarsus”,
was arrested
at dawn at his house in Johannesburg.
“
We
managed to get him out on bail,” his South African lawyer
Ashraf Essop told AFP, after an appearance before a Johannesburg

court. The lawyer said that the charges against Mukungubila are
outlined in an Interpol arrest warrant following a complaint by
the
Democratic Republic of Congo’s government.
The pastor has been
accused of murder, intentional and aggravated assault, malicious
destruction, as well as illegal and arbitrary
detention, his lawyer
said, without giving details of the specific incidents related to the
charges.
The DRC has blamed
Mukungubila for a spate of attacks in December on the airport, the
main army headquarters in the capital and
in the second city of
Lubumbashi.
Government spokesperson
Lambert Mende said then that 103 people were killed – 95
attackers and eight members of the armed
forces – and that
Mukungubila was on the run.
On Thursday Mende said:
“What we are expecting now is his extradition so that he can
answer for his crimes before justice.”
The pastor’s lawyer
said, however, that South African Authorities cannot extradite him as
he has filed an asylum request in
the country.
Reached by telephone by
AFP Thursday, the pastor said the 30 December attacks were “staged”
to eliminate him.
Interpol
Kindly be informed that
Mr Paul Joseph Mukungubila Mutombo has been investigated by this
office based on the fact that the authorities
of the DRC forwarded a
request to this office to trace the fugitive. The fugitive is wanted
for the following charges …
The above mentioned fugitive was
arrested on 2014/05/15 at his residential address no. 27 Carrol
Avenue regents Park Johannesburg.
Your application for
Asylum is accordingly assessed and approached both subjectively and
objectively. Coming to objective test it
comes to my attention that
supporters or members who believed to be your followers were
deliberately committing a crime against
peace in your country of
Origin, by taking Radio and Television presenters hostage and declare
and mention your name that you are
the one to free them from slavery
of the Rwandan. This was not the right platform to take the
government if the attackers were
indeed your supporters or members,
since you know very well the procedure of becoming a President in a
democratic country. Again
in Lubumbashi supporters or members who
believed to be your followers were arrested for [crimes] against
peace in the country again
they mention your name as their leader.
The government agency act under the scope of their duties to bring
peace in the country.
And coming to subjective test it comes to my
attention that nothing happen to you that constitute persecution
except that your
house was attacked and largely demolished. The
investigators were believed to ascertain whether there was a link
between you and
the attackers believed to be your supporters or
followers. You [fled] the country and [came] to South Africa to seek
[an] Asylum
permit.
Documents considered
*  BI-1590
*  Refugee Act 130
of 1998
* UNHR Handbook on
Procedures and criteria for determination of Refugees Status.
CONCLUSION
After
receiving a report from Interpol that there are criminal charges
against you in your country of origin, I am left with no
choice but
to exclude your application for Asylum in terms of section 4 (1)(a)
and (b) of Act No:130 of 1998.’
[25]
A reading of this document shows that it records Mr Mukungubila’s
account of the events that led to his flight to South
Africa. Under
the caption ‘FINDINGS’, the document regurgitates the
contents of what appears to be two media reports,
the source of which
is not particularly clear, and Interpol’s warrant of arrest,
which merely states that it has investigated
Mr Mukungubila and sets
out the charges which he would face in the DRC. Thereafter, the RSDO
concluded that Mr Mukungubila’s
followers committed crimes
against peace and that Mr Mukungubila was not persecuted and
accordingly rejected the asylum application.
Nowhere in this
disjointed statement was there any a finding that Mr Mukungubila’s
application for asylum was manifestly
unfounded, abusive or
fraudulent or unfounded and why.
One simply
does not know why the RSDO rejected the application.
[26]
The RSDO’s rejection of Mr Mukungubila’s asylum
application, which constitutes administrative action,
[16]
and must be lawful, reasonable and procedurally fair,
[17]
should have been accompanied by adequate reasons satisfying the
requirement of rationality.
[18]
Those
reasons, when read in context, should have been intelligible and
conveyed why the RSDO thought that his decision was justified.
[19]
They
should have consisted of more than mere conclusions, and should have
contained, in addition to the relevant facts and law,
the reasoning
processes leading to those conclusions.
[20]
The RSDOs execute functions of particular importance. They determine
the fate of vulnerable asylum applicants who fear deportation,

usually lack resources, legal representation, language and other
meaningful skills to enforce their legal rights and face potentially

catastrophic consequences if their applications are wrongly
rejected.
[21]
Therefore,
the need for RSDOs to properly exercise their powers and meticulously
observe the principles of administrative justice
in the execution of
their functions cannot be overstated.
[27]
The RSDO’s decision here was neither intelligible nor
informative and came nowhere near the required standard. It did
not
tell Mr Mukungubila why his asylum application was rejected. This
fundamental
flaw clearly constituted a
reviewable irregularity, as the appellant’s counsel fairly and
properly conceded. In the absence
of any facts that even hinted at
fraud, abuse or a manifest absence of merit of the asylum
application, it must be accepted that
the RSDO took his decision in
terms of s 24(3)
(c)
.
That was also the appellants’ stance in the court a quo. This
view is further
bolstered by the RSDO’s
apparent failure to submit a record of the proceedings and a copy of
his written reasons to the Standing
Committee, within 10 working days
after the rejection of the asylum application, as contemplated in s
24(4)
(b)
,
which governs the procedure where an application is rejected in terms
of s 24(3)
(b)
.
In that case an appeal against the RSDO’s decision lay to the
RAB and the application before us was directed at compelling
the RAB
to hear such an appeal.
[28]
We had reached that conclusion at the end of the hearing of the
appeal, but while this judgment was in the course of preparation,
the
jurisdictional issue was settled squarely by the Constitutional Court
in
Gavric
.
There, dealing with this precise issue, the Court said:
[22]
‘
[51]
Manifestly unfounded, fraudulent and abusive applications are, after
being rejected under section 24(3)(
b
),
sent to the Standing Committee on automatic review.  The nature
of such applications is defined in the Act and an exclusion
decision
does not fall within these definitions.  The Act does not define
“unfounded applications”.  Unfounded
applications
could comfortably be read to include applications which have been
excluded under section 4(1).
[52]
A textual reading of the Act, along with a purposive interpretation
of sections 24(3)(
c
) and 4(1) that gives due regard to
the constitutional right to fair administrative action would support
an interpretation that
an application excluded under section 4
falls within the ambit of section 24(3)(
c
).  In addition,
such an interpretation is aligned with international best practice
and guidelines.
It
follows that exclusion decisions are thus subject to the internal
remedies of the Act and an applicant may appeal to the Refugee
Appeal
Board.’ (Footnotes omitted.)
[29]
In sum, whether the RSDO’s decision here fell under
s 24(3)
(b)
or
24
(3)
(c)
of the
Refugees Act, the
exclusion
decision would be subject to the internal remedies provided in the
Act. And, as explained at paragraph [27] above, it
can only be
surmised on the available material that Mr Mukungubila’s
application was rejected in terms of s 24(3)
(c)
.
In that case he was entitled to appeal to the RAB.
[30]
The next question is whether it was competent for the court a quo to
grant Mr Mukungubila asylum instead of remitting the matter
to the
RAB. He sought an order setting aside the RAB’s decision that
it had no jurisdiction to hear his appeal. Logically
therefore, the
matter needed to be referred back to the RAB to hear and dispose of
the appeal. Instead Mr Mukungubila confusingly
sought to set aside
the RAB’s ‘failure’ to grant him asylum, something
it had never considered, and asked that
the RAB be required to
entertain his appeal. The latter order would not have constituted a
problem were it not that he also sought
an order short-circuiting the
appeal process and granting him asylum. In effect, therefore, he was
asking the court to take the
decision of the appeal out of the hands
of the RAB. Section 7(2) of the Promotion of Administrative Justice
Act 3 of 2000 (PAJA)
obliges a court to require that internal
remedies be exhausted before it can review an administrative action.
It is only where
exceptional circumstances exist exempting the
concerned person, who must apply for such exemption, from the
obligation to exhaust
internal remedies, and the interests of justice
demand it, that a court may entertain review proceedings before
internal remedies
are exhausted, as envisaged in
s
8(1)
(c)
(ii)
of PAJA
.
[23]
[31]
The doctrine of separation of powers requires courts to exercise
judicial deference in applying their constitutional powers
to avoid
trespassing on the terrain of other organs of state where they are
exercising their powers appropriately.
The
Constitutional
Court described the enquiry to be conducted by a court asked to make
an order of substitution as follows in
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd & another
:
[24]
‘
.
. . [G]iven the doctrine of separation of powers, in conducting this
enquiry there are certain factors that should inevitably
hold greater
weight. The first is whether a court is in as
good
a position as the administrator to make the decision. The second is
whether the decision of an administrator is a foregone
conclusion.
These two factors must be considered cumulatively. Thereafter, a
court should still consider other relevant factors.
These may include
delay, bias or the incompetence of an administrator. The ultimate
consideration is whether a substitution order
is just and equitable.
This will involve a consideration of fairness to all implicated
parties. It is prudent to emphasise that
the exceptional
circumstances enquiry requires an examination of each matter on a
case-by-case basis that accounts for all relevant
facts and
circumstances.’
[32]
It was contended for Mr Mukungubila that the facts established ‘a
carefully choreographed attempt to achieve’ his
extradition ‘by
refusing to grant him refugee status and truncating his internal
remedies’. The DG and the Minister
were accused of ‘direct
interference in the work’ of the RAB, which was in turn accused
of bias. The refusal by officials
of the Department of Home Affairs
to obey the court order of 25 July 2014, which had allegedly been
taken by consent, until contempt
proceedings were launched against
them, and a subsequent institution of an appeal against that order,
were the basis of this charge
and constituted ‘the exceptional
circumstances’ relied upon for a substitution order.
[33]
I have, however, found no indication on the papers of any bias or
incompetence on the part of the RAB in the manner contemplated
in s
6(2)
(a)
(iii)
of PAJA.
[25]
To
my mind, it simply misconstrued its powers and laboured under the
misapprehension that it had no jurisdiction to adjudicate Mr

Mukungubila’s appeal. Neither is there any evidence that
pressure was brought to bear on the RSDO to render a negative
decision
against Mr Mukungubila. Nor, for that matter, that the
outcome of the matter, if remitted to the RAB, is a foregone
conclusion.
[34]
The important point to bear in mind is that the RAB is a specialist
body constituted by members, who possess the expertise,

qualifications and experience necessary for the performance of the
functions of that body. 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 inquiries or investigation and request
the applicant to appear before it and to provide any such other
information as it
may deem necessary. In addition to
the
RAB’s specialist composition and experience, it has access to
t
hese invaluable
sources
of relevant information and expertise,
which courts do not have and may well be
needed in this case. I say this as I am not certain that there is
sufficient, objective
information on Mr Mukungubila’s personal
circumstances and the events which occurred in the DRC on the papers.
This Court
and the court a quo cannot, therefore, be said to be in as
good a position as the RAB to decide the matter.
[35]
It should also be mentioned that, as previously indicated, among the
various orders sought by Mr Mukungubila in his Notice
of Motion was a
declarator that the RAB has the jurisdiction to entertain his appeal
and a remittal of the matter for determination
by a newly constituted
Board. At the hearing of this appeal too, his counsel was not averse
to a remittal of the matter for determination
by the RAB as long as
he was protected from removal from South Africa before his asylum
application is finalised, relief which
he already has. And it goes
without saying that his permit would remain valid until such time. A
remittal would therefore not shield
administrative process from
judicial scrutiny or frustrate Mr Mukungubila’s attempts to
challenge the RSDO’s decision,
a risk which was cautioned
against in
Koyabe
where courts rigidly impose the duty to exhaust internal remedies in
the face of exceptional circumstances.
[26]
I
am in any event not convinced in the light of the factors mentioned
above that exceptional circumstances were established. I cannot
find
that the substitution order granted by the court a quo was just and
equitable.
[36] I turn to deal with
the general declaratory relief granted in paragraph 6 of the court a
quo’s order. Whether or not
the orders were competent largely
depends on the meaning of
s 21(1)
(c)
of the
Superior Courts
Act 10 of 2013
, which reads:
‘
A
Division [of the High Court] has jurisdiction over all persons
residing or being in, and in relation to all causes arising and
all
offences triable within, its area of jurisdiction and all other
matters of which it may according to law take cognisance, and
has the
power … in its discretion, and at the instance of any
interested person, to enquire into and determine any existing,
future
or contingent right or obligation, notwithstanding that such person
cannot claim any relief consequential upon the determination.’
This
Court has construed the substantively similar predecessor of these
provisions,
s 19(1)
(a)
(iii)
of the now repealed Supreme Court Act 59 of 1959.
[27]
The
Court found that the provisions envisaged a two-stage enquiry: in the
first leg the court must be satisfied that the applicant
has an
interest in an ‘existing, future or contingent right or
obligation’ establishing the conditions precedent for
the
exercise of the court’s discretion; in the second leg the court
exercises its discretion by deciding either to refuse
or grant the
order sought.
[28]
[37]
The contention advanced on Mr
Mukungubila’s behalf in support of the declarators was that
they were necessary ‘to ensure
that with clarity, refugees are
not subject to the ongoing and studied obtuseness that they meet in
their encounters with the officials
called upon to determine their
cases’ and that ‘they are tailored directions to the
Immigration authorities’.
The purpose for seeking the relief
therefore was to obtain from the court guidelines charting the future
conduct of officials of
the Department of Home Affairs in executing
their statutory functions. The appellants pointed out the trite
position in our law
that courts do not give litigants advice, express
opinions or make orders which are academic or abstract when there is
no live
controversy in respect of a dispute requiring adjudication
and decision by the court. I will assume that Mr Mukungubila’s

own interest ‘in a contingent right’ establishes the
condition precedent (ie it is permissible) for this Court to exercise

its discretion by considering whether or not to fix general
directions for State functionaries as sought. The declaratory orders

granted by the court a quo would be bad for reasons other than the
one advanced by the appellants. The order granted in paragraph
6.1
was unnecessary as it restated the provisions of the
Refugees Act, in
particular the general prohibition of extradition or return of
persons to other countries in certain circumstances contained in
s 2
thereof. As for the rest of the orders, the relief sought would flow
ex lege
in
the proper case. But their competence would depend on the particular
facts of each case brought before a court and could never
be granted
in the wide and general manner in which they are presently crafted.
[38]
Turning to the last question concerning the costs order made against
the RAB in the court a quo, I see no reason to interfere
with that
court’s discretion in this regard. The RAB was included in all
court processes filed by the State Attorney, by
whom it was
represented in the proceedings, which involved its decision. No
notice to abide was filed on its behalf. That said,
however, I am not
inclined to make any order of costs in respect of the appeal having
regard to the nature of the case.
[39]
To sum up: For the reasons set out above, only the orders in
paragraphs 2 and 7 of the order of the court a quo which,
respectively,
set aside the RSDO’s decision that it had no
jurisdiction to deal with Mr Mukungubila’s appeal, and mulcted
the appellants
with costs, survive the appeal. As previously stated,
the order in paragraph 1, which granted Mr Mukungubila interim
relief, was
incompetent because the issue was not before the court a
quo and the relief had already been granted in other proceedings. The
order in paragraph 3, which ostensibly reviewed and set aside the
RAB’s failure to grant Mr Mukungubila asylum, was superfluous.

The order in paragraph 4 granting Mr Mukungubila asylum pre-empted
the enquiry to be conducted by the RAB and was, therefore,
incompetent. The relief granted in paragraph 5 was unnecessary in
light of the order granted by Makhubele AJ in the court a quo
on 14
November 2014, which protected Mr Mukungubila from extradition until
his asylum application and all litigation relating thereto
had been
finalised. And the declaratory orders granted in paragraph 6 were
incompetent.
[40] In the result I make
the following order:
1 The appeal succeeds to
the extent that paragraphs 1, 3, 4, 5 and 6 of the order of the court
a quo are set aside.
2 The matter is referred
back to the Refugee Appeal Board to determine the respondent’s
appeal in terms of
s 26
of the
Refugees Act 130 of 1998
.
_____________________________________________
MM MAYA
PRESIDENT OF THE SUPREME
COURT OF APPEAL
APPEARANCES:
APPELLANTS: W R Mokhari
SC (with him MP Mdalana)
Instructed
by:
State Attorney, Pretoria
State
Attorney, Bloemfontein
RESPONDENT: DJ Vetten
Instructed
by:
BDK
Attorneys, Johannesburg
C/o
Symington & De Kok, Bloemfontein
[1]
Defined
in
s 1
of the
Refugees Act 130 of 1998
as ‘a person who is
seeking recognition as a refugee in the Republic’. A ‘refugee’
is defined in the same
section as ‘any person who has been
granted asylum in terms of this Act’.
[2]
Defined
in
s 1
of the
Refugees Act as
‘
refugee
status recognised in terms of the Act’.
[3]
The
section stipulates the procedure to be followed in respect of
applications for asylum and requires, inter alia, that the
application ‘be made in person in accordance with the
prescribed procedures to a Refugee Reception Officer at any Refugee

Reception Office’.
[4]
These
provisions entitle an asylum seeker to lodge an appeal with the RAB
in the manner and within the period provided for in
the rules if the
RSDO has rejected the asylum application in terms of
s 24(3)
(c)
of
the
Refugees Act ie
on the basis that it is unfounded.
[5]
The order was couched in the following terms:
‘
1. Pending the
outcome of the processes contemplated in:
1.1
section 8
of
the
Immigration Act, 13 of 2002
; and/or
1.2
section 26
of
the
Refugees Act, 130 of 1998
; and
1.3 any subsequent
judicial review to be instituted within 30 days of a final decision
under the provisions of the aforesaid Acts.
2. The Respondents and
their officers, and any other peace officers, upon presentation of a
copy of this Order, are interdicted
from:-
2.1  arresting
and/or detaining the Applicant on the grounds of his immigration
status;
2.2  instituting
any proceedings against the Applicant in respect of his presence in
the Republic of South Africa; and
2.3 deporting the
Applicant.
3. The Respondents are
directed to cause the Refugee Reception Officer, Marabastad to
extend the Applicant’s Asylum Seeker
Temporary Permit for such
further periods as may be necessary to permit him to undertake the
appeal processes contemplated above.
4. The process
contemplated in paragraph 2 must be initiated within 10 days of the
handing down of this Order.’
[6]
In
terms of the Southern African Development Community Protocol on
Extradition of 3 October 2002.
7
This section provides, in relevant part:
‘
(1)
Any magistrate may, irrespective of the whereabouts or suspected
whereabouts of the person to be arrested, issue a warrant
for the
arrest of any person–
(a)
upon receipt of a notification from the Minister
to the effect that a request for the surrender of such person to a
foreign
State has been received by the Minister; or
(b)
upon such information of his or her being a
person accused or convicted of an extraditable offence committed
within the jurisdiction
of a foreign State, as would in the opinion
of the magistrate justify the issue of a warrant for the arrest of
such person, had
it been alleged that he or she committed an offence
in the Republic.’
[8]
The
provisions prescribe the nature of the enquiry where the relevant
offence is committed in a foreign State as follows:
‘
(1)
If upon consideration of the evidence adduced at the enquiry
referred to in section 9(4)
(a)
and
(b)
(i)
the magistrate finds that the person brought before him or her is
liable to be surrendered to the foreign State concerned
and, in the
case where such person is accused of an offence, that there is
sufficient evidence to warrant a prosecution for the
offence in the
foreign State concerned, the magistrate shall issue an order
committing such person to prison to await the Minister’s

decision with regard to his or her surrender, at the same time
informing such person that he or she may within 15 days appeal

against such order to the Supreme Court.
(2)  For purposes
of satisfying himself or herself that there is sufficient evidence
to warrant a prosecution in the foreign
State the magistrate shall
accept as conclusive proof a certificate which appears to him or her
to be issued by an appropriate
authority in charge of the
prosecution in the foreign State concerned, stating that it has
sufficient evidence at its disposal
to warrant the prosecution of
the person concerned.
(3)  If the
magistrate finds that the evidence does not warrant the issue of an
order of committal or that the required evidence
is not forthcoming
within a reasonable time, he shall discharge the person brought
before him.
(4)
The magistrate issuing the order of committal shall forthwith
forward to the Minister a copy of the record of the proceedings

together with such report as he may deem necessary.’
[9]
As
defined in
s 1
of the
Refugees Act.
[10
]
As
defined in
s 1
of the
Refugees Act.
[11
]
Arse
v Minister of Home Affairs & others
[2010] ZASCA 9
;
2012 (4) SA 544
(SCA) para 13;
Gavric
v Refugee Status
Determination
Officer,
Cape Town & others
[2018] ZACC 38
para 16.
[12]
The
provisions read, in relevant part:
‘
2.
Notwithstanding any provision of this Act or any other law to the
contrary, no person may be refused entry into the Republic,

expelled, extradited or returned to any other country or be subject
to any similar measure, if as a result of such refusal, expulsion,

extradition, return or other measure, such person is compelled to
return to or remain in a country where–
(a)
he or she may be subjected to
persecution on account of his or her race, religion, nationality,
political opinion or membership
of a particular social group. . . .’
[13]
Section
5 reads:
‘
(1)
A person ceases to qualify for refugee status for the purposes of
this Act if–
(a)
he or she voluntarily reavails himself or herself
of the protection of the country of his or her nationality; or
(b)
having lost his or her nationality, he or she by
some voluntary and formal act reacquires it; or
(c)
he or she becomes a citizen of the Republic or
acquires the nationality of some other country and enjoys the
protection of the
country of his or her new nationality; or
(d)
he or she voluntarily re-establishes
himself or herself in the country which he or she left; or
(e)
he or she can no longer continue to refuse to
avail himself or herself of the protection of the country of his or
her nationality
because the circumstances in connection with which
he or she has been recognised as a refugee have ceased to exist and
no other
circumstances have arisen which justify his or her
continued recognition as a refugee.
(2) Subsection 1
(e)
does not apply to a refugee who is able to invoke compelling reasons
arising out of previous persecution for refusing to avail
himself of
the protection of the country of his nationality.
(3) .
. . .’
[14]
Gavric
fn 11
paras 23-25.
[15]
Native
Commissioner and Union Government v Nthako
1931
TPD 234
at 242;
Hurley
& another v Minister of Law and Order & another
1985
(4) SA 709
(D) at 717A;
Tantoush
v Refugee Appeal Board & others
[2007] ZAGPHC 191
;
2008
(1) SA 232
(T) para 111.
[16]
Section 1
of the
Promotion of Administrative Justice Act 3 of 2000
.
[17]
Section 33(1) of the Constitution of the Republic of South Africa,
1996.
[18]
Gavric
fn 11 para 67.
[19]
Koyabe
& others v Minister for Home Affairs & others (Lawyers for
Human Rights as Amicus Curia
e)
[2009] ZACC 327; 2010 (4) SA 37 (CC); 2009 (12) BCLR 1192 (CC).
[20]
Minister
of Environmental Affairs and Tourism & others v
Phambili
Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism &
others v Bato Star Fishing (Pty) Ltd
2003 (6) SA 407
(SCA) para 40;
Gavric
fn 11 para 68.
[21]
Gavric
para 70.
[22]
Ibid,
paras 51-53.
[23]
See
for example
Koyabe
fn 19 above paras 37-38.
[24]
Trencon
Construction (Pty) Ltd v Industrial Development Corporation of South
Africa Ltd & another
[2015]
ZACC 22
;
2015
(5) SA 245
(CC);
2015 (10) BCLR 1199
(CC) para 47.
[25]
Which empowers a court to ‘judicially review an administrative
action if … the administrator who took it …
was biased
or reasonably suspected of bias’.
[26]
Fn
19
paras 38-39.
[27]
See
for example,
Cordiant
Trading CC v Daimler Chrysler Financial Services
(Pty)
Ltd
2005
(6) SA 205
(SCA) paras 16-18.
[28]
Ibid
para 18.