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[2016] ZAGPPHC 1252
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Ruta v Minister of Home Affairs and Others (79430/16) [2016] ZAGPPHC 1252 (23 November 2016)
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
CASE
NO: 79430/16
23/11/2016
In
the matter between:
ALEX
RUTA
Applicant
and
MINISTER OF HOME
AFFAIRS
First Respondent
DIRECTOR-GENERAL,
DEPARTMENT
OF HOME
AFFAIRS
Second Respondent
HEAD,
ATTRIDGEVILLE CORRECTIONAL
CENTRE
Third Respondent
JUDGMENT
Tuchten
J:
1
This matter came before me in the urgent court. When I heard the
case, if
my memory serves me, the applicant was being held at Lindela
pending deportation. After argument, I told counsel how I proposed
to
rule and invited counsel to assist the court by preparing a draft
order. The order which I made was the product of counsel's
industry
but I must make it clear that the respondents opposed any order in
favour of the applicant.
2 The
order I made reads:
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 Refugee 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
Refugees Act 130 of 1998
and the
Promotion of
Administrative Justice Act 3 of 2000
.
4 Directing
the First and Second Respondents to pay the Applicant's costs
excluding costs of the 18th October 2016.
3 The
facts are unusual. The applicant is a national of Rwanda.
He claims
he entered the Republic of South Africa in 2014 as a soldier in its
exiled armed struggle against the then Rwandan government.
But in
2015 he was told, in effect, that he was to kill someone from a rival
party. The applicant says that his reaction was to
approach the
Directorate for Priority Crime Investigation, the Hawks, and disclose
his mission to them. The applicant was then,
he says, placed in
witness protection.
4 The
applicant says that he was moved around South Africa by the
Hawks and
that during this time abortive efforts were made to secure refugee
status for the applicant. At some later stage, the
money available
for witness protection for the applicant ran out and his Hawks
handlers advised him to get a job. The applicant
then got a job at a
pizza restaurant. When the applicant told one of his Hawks handlers
that he was concerned at having no immigration
status, he says the
handler asked him for the details of the manager of the restaurant so
that the handler could explain to the
manager about the applicant's
position. A few days later, the manager provided the applicant with
an asylum seeker's permit.
5 It
transpired that the permit was fraudulent. On 19 March 2016, the
applicant was arrested for possession of a fraudulent permit, driving
a motorcycle without a driver's license and being an illegal
foreigner. Following representations, the charge of possession of a
fraudulent permit was withdrawn and the applicant was convicted
of
driving and unlicensed motorcycle and driving without a license. He
was sentenced on 28 July 2016 to three month’s imprisonment.
He
was released from custody on the criminal convictions in about August
2016.
6 Since
15 April 2016, the applicant has through his attorney been in
correspondence with the Department of Home Affairs (the DHA) in an
effort to regularise his position. In a letter dated 12 September
2016, the applicant's desire to apply for refugee status was
communicated to the respondents. The applicant's position could not
be resolved by negotiation and the applicant was transferred to
Lindela to await deportation.
7 In
resisting his claim broadly for the relief which I ultimately
granted,
counsel for the respondents submitted that
s 4(
1
)(b)
of the
Refugees Act precludes
the grant to the applicant of refugee
status.
Section 4
reads:
(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.
8 The
respondents' submission is that if the applicant's version is true,
which the respondent does not concede, then the applicant is an
assassin and a deserter. Section 4(1)(b) is in my judgment directed
to crimes committed
outside
the Republic. There is not even a
suggestion in the respondents' papers as to which law of which
country renders the applicant's
conduct punishable, let alone any
expert evidence by which foreign law is usually proved. Furthermore,
assuming that the respondents
are suggesting that the law of Rwanda
renders punishable by imprisonment the applicant's decision, on his
version,
not
to commit the crime of murder in the Republic and
to sever his connections with the organisation which wanted him to be
its assassin,
I cannot exclude the strong possibility that the
alleged crimes are political in nature.
9 So
much for the facts.
Section 2
provides for the right of aspirant
applicants for refugee status in very wide terms:
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; or
(b)
his
or her life, physical safety or freedom would be threatened on
account of external aggression, occupation, foreign domination
or
other events seriously disturbing or disrupting public ordering
either part or the whole of that country.
10
This position of an aspirant applicant for asylum has been made clear
by the SCA. In
Bula
and Others v Minister
of
Home
Affairs and Others,
[1]
the court held as follows:
[2]
[72]
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 reg 2(1)(a). The word
'encountered' in reg 2(2) must be given its ordinary meaning, which
is to meet or come
across unexpectedly. The regulation does not
require an individual to indicate an intention to apply for asylum
immediately 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
ss 2
is clearfy
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. It is clear that the appellants,
when they were detained
at Lindela, communicated to the department's officials and
enforcement officers by the letter referred
to earlier in this
judgment that they intended to apply for asylum. Once the appellants,
through their attorneys, indicated an
intention to apply for asylum
they became entitled to be treated in terms of reg 2(2) and to be
issued with an appropriate permit
valid for 14 days, within which
they were obliged to approach a refugee reception office to complete
an asylum application. The
contrary view expressed in
Shabangu v
Minister of Home Affairs
(49231/10) [2010] ZAGPJHC 146 (10
December 2010) is incorrect. The order in that case had the effect of
placing the persons released
into an unregulated position, which
could never have been the intention of the [Refugees Act].
[73]
That does not mean that a decision on the
bona tides
of the
application is made upfront. Once the application has been made at a
refugee reception office, in terms of
s 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 [Refugee Status Determination Officer].
[74]
In terms of
s 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. As can be seen from the
provisions
of
s 24(3)
set out in para
[67]
above it is for the [Refugee Status Determination Officer] and the
[Refugee Status Determination Officer]
alone to grant or reject an
application for asylum. In terms of
s 24(3)(c)
the application could
be rejected on the basis of being 'unfounded'.
11.
As I read this passage, 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 duty to make
this determination
is vested in the Refugee Status Determination
Officer alone. Once a person communicates to an officer of the DHA
that it is his
or her wish to apply for refugee status, it is the
duty of that officer and, indeed, all other 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.
12
It is unnecessary for me to deal with the position of a person held
in custody on suspicion
of committing an offence other than one under
the immigration regime and nothing that I have said should be taken
as indicating
whether such a person should or should not be released
to enable him or her to apply for refugee status.
13
It followed, in my view, that the applicant was entitled to the
relief sought and I made
the order I have described above.
NB
Tuchten
Judge
of the High Court
23
November 2016
[1]
2012 4 SA 560
SCA
[2]
Footnotes omitted