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[2015] ZAGPPHC 1037
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Mubake and Others v Minister of Home Affairs and Others (72342/2012) [2015] ZAGPPHC 1037; 2016 (2) SA 220 (GP) (9 July 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
9/7/15
CASE
NO: 72342/2012
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
In
the matter between:
BULAMBO
BIAKOMBOKA
MUBAKE First
Applicant
SAKINA
OKOMO Second
Applicant
LYDIE
MULUMBA Third
Applicant
SHEKHINA
KASONGO
MULIMBI Fourth
Applicant
TINA
KAHUNDE Fifth
Applicant
MARTINE
BALINGONGO
BOLANDZA Sixth
Applicant
VANESSA
AMISI Seventh
Applicant
MARIE
DEMBO
WOOKO Eighth
Applicant
and
MINISTER
OF HOME
AFFAIRS First
Respondent
DIRECTOR
GENERAL: HOME
AFFAIRS Second
Respondent
HEAD
MANAGER: TIRRO AND
MARABASTAD Third
Respondent
MINISTER
OF
EDUCATION Fourth
Respondent
MEC:
EDUCATION
(GAUTENG) Fifth
Respondent
MEC:
SOCIAL DEVELOPMENT
(GAUTENG) Sixth
Respondent
MINISTER
OF SOCIAL
DEVELOPMENT Seventh
Respondent
DIRECTOR-GENERAL:
SOCIAL DEPARTMENT Eighth
Respondent
JUDGMENT
MAKGOKA,
J
[1]
The applicants seek an order declaring that children who had been
separated from their parents, are dependants of their primary
care-givers in terms of the definition of 'dependant' in s 1 of the
Refugees Act 130 of 1998 (the Act) and its accompanying regulations.
In essence, the applicants contend that such children should
automatically be recognized as dependents of existing asylum seekers
or refugee adults who accompany them into South Africa. Ancillary to
the main relief, the applicants seek an order that the first
and
second respondents should inform all refugee reception offices by way
of departmental directive to issue the relevant permit
to separated
children who are dependents of their primary care-givers.
[2]
Initially, the applicants also sought orders (in prayers 1 and 2 of
the notice of motion) against the fourth respondent (the
Minister of
Basic Education) and fifth respondent (the Member of the Executive
Council for Education, Gauteng Province) in the
following terms.
Firstly, to provisionally allow the registration of the child
applicants and other children who are dependants
of asylum seekers
and refugees in public schools for 2013. Secondly, an order was
sought against the Minister of Basic Education
to review the
admission policy for ordinary public schools by expressly making
provision for child asylum seekers and refugees.
That relief was
granted by this court on 9 May 2013. That order took care of prayers
1 and 2 of the notice of motion. Prayers 3
and 4 also concerned the
right of children to access education, and are not pursued by the
applicants. What remains is the relief
sought in prayers 5 and 6, and
those prayers are mirrored in paragraph [1] above.
[3]
The relief sought by the applicants is opposed by the first
respondent (the Minister of Home Affairs), the seventh respondent
(the Minister of Social Development), and the Directors-General of
their respective departments, being the second and eighth
respondents.
The Minister of Basic Education initially opposed the
relief sought against her, but later withdrew her opposition and
filed a
notice to abide the decision of this court. The Minister of
Social Development and the Director General of that department
were later joined to the application. They, together with Minister of
Home Affairs and the Director-General of that department,
remain
opposed to the relief sought by the applicants. I shall refer to them
as 'the opposing respondents'.
[4]
The first, second, third, fourth and seventh applicants are all
children (the child applicants) from Democratic Republic of
Congo
(DRC). All of them are said to be orphans. They are asylum seekers on
the basis that their parents had either been killed
during the
political conflict in DRC, or had abandoned them. They are assisted
by adult asylum seekers or refugees in South Africa,
in whose care
they are said to be. The fifth, sixth and eighth applicants are adult
refugees or asylum seekers who seek the same
relief on behalf of
similarly placed children in their care. The adult asylum seekers or
refugees appear in most instances to be
aunts or uncles of such
children.
[5]
The situation of the applicants is, in broad terms, similar. The
essence of their complaint is that they have not been issued
with
temporary asylum permits in terms of s 22 of the Act, as the
officials of the department of Home Affairs allegedly demand
that
before such permit is issued, proof of a guardianship order was
required as the persons who sought to register them were not
their
biological parents. To give a broad overview of the personal
circumstances of the applicants, I summarise those of the first
applicant. He alleges that he was born in the DRC in 1998. He alleges
that his parents were killed in the war in her country in
1998 when
he was a month old. He is an asylum seeker in South Africa, having
fled the war in DRC with his aunt, herself an asylum
seeker, and
arrived in the country during May 2011.
[6]
Upon arrival, his aunt was issued with a temporary asylum seeker
permit in terms of s 22 of the Act. However, when his aunt
sought to
apply for a similar permit for him, she was advised by the Refugee
Status Determination Officer at the Marabastad, Pretoria
office of
the department of Home Affairs that since he was not her biological
child, she could not apply for such permit, and needed
the assistance
of a social worker to apply for his guardianship. Despite his aunt's
attempt to obtain guardianship, her efforts
were unsuccessful, and to
date, he has not been issued with a temporary asylum seeker permit.
The effect thereof is that he is
indefinitely not documented and the
requirements for documentation are inaccessible. He is thus
effectively an illegal immigrant.
[7]
Section 1 of the Act provides that a dependant, in relation to an
asylum seeker or refugee, includes the spouse, any unmarried
dependent child or any destitute, aged or infirm member of the family
of such asylum seeker or refugee. The applicants assert that
the
above definition should be read as being inclusive of separated
children who accompany their alleged caregivers into South
Africa.
Thus, the issue is whether s 1 of the Act can be interpreted to
include separated children as dependents of the adult asylum
seekers
accompanying them into South Africa, or who join them later in the
country. The Act is silent as to how separated children
are to be
dealt with.
[8]
On behalf of the applicants, it was contended that the definition of
'dependant' in terms of s 1, as set out above, should be
read as
being inclusive of separated children who accompany their relatives
who are their care-givers, into South Africa. Counsel
for the
applicants, Prof.
Skelton,
referred me to the following
international instruments to buttress her submission:
The United
Nations Convention on the Rights of the Child,
which was ratified
by South Africa on 15 June 1995 (the Convention on the Rights of the
Child);
The United Nations Committee on the Rights of the Child's
General Comment on the Treatment of Unaccompanied and Separated
Children
Outside their Country of Origin, CRG/GC/200516
(the
General Comment);
The African Charter on the Rights and Welfare of
the Child
(the African Charter) ratified by South Africa on 7
January 2000. All the above instruments are concerned with the
protection of
children who seek refugee status. I set out in turn,
the relevant provisions of the Convention on the Rights of Children
and of
the African Charter.
[9]
Article 22(1) of the Convention on the Rights of Children obliges
State Parties to take appropriate measures to ensure that
a child who
seeks refugee status, whether unaccompanied or accompanied by parents
or by another person, receives protection and
humanitarian
assistance. Article 23(1) of the African Charter has a similar
provision, but envisages that such a child may be accompanied
by,
among others, close relatives.
[10]
The opposing respondents contend that the aplicants and children
similarly situated should be dealt with in terms of s 46 of
the
Children's Act 38 of 2005 (the
Children's Act) in
terms of which such
children are placed with care-givers by means of a court order. In
other words, the Children's Court should
determine whether it is in
the interests of such child to be under the primary care of the adult
refugee or asylum seeker who purports
to be their relative.
[11]
Their stance is this. Prior to permitting a child to be joined as a
dependant of an existing refugee or asylum seeker and prior
to
issuing separated child with an asylum seeker permit in terms of s 22
of the Act, an investigation must be conducted by the
Department of
Social Development. This, so contend the opposing respondents, is to
ensure that such adult who claims responsibility
for the child is a
fit and proper person to do so. Such an investigation might uncover,
among others, that such a child bears no
relationship to such adult,
or that the child has been lured to the country under false pretences
or is being trafficked or abducted
into the country.
[12]
To obviate this risk, the opposing respondents suggest that an
enquiry needs to take place within the framework of the
Children's
Act, in
terms of which the social workers with the necessary skills
and expertise would be able to determine what is in the best
interests
of the child. Such a determination cannot be left to an
official of the department of Home Affairs, who would be expected to
make
such a determination on the mere say so of an adult refugee or
asylum seeker. The opposing respondents further argue that the
relationship
between the adult refugee or asylum seeker and the child
is not formalised or legally recognised, with the result that there
is
no binding responsibility of the refugee or asylum seeker in
respect of the child.
[13]
The upshot of the opposing respondents' argument is therefore that
the automatic declaration of all separated children as dependants
of
adult refugees or asylum seekers without a proper investigation
envisaged above, has the potential of being detrimental to the
well-being of the children.
[14]
It seems to me that the dispute between the parties falls within a
narrow compass. The applicants argue that when the adult
asylum
seeker is issued with a temporary permit, the children accompanying
them, such as the applicants and similarly situated
children, should
also be included in that process, similar to where the biological
parents are accompanied by their children. Thus,
the applicants
contend that the first step to be taken prior to any investigation
should be to document the child first, and issue
the children with a
permit in order to legalise their stay in the country. On the other
hand, the opposing respondents argue that
the Children's Court
process should take place prior to the issue of such permit.
[15]
While I agree that there are inherent risks associated with
documenting separated children as 'dependants' of adult refugees
or
asylum seekers without any preceding investigation, there is a higher
risk if that is not done. Insisting on a prior investigation
through
the process of Children's Court, which may be long and cumbersome,
might actually result in the mischief the opposing respondents
are
concerned about - child abduction and trafficking. This is so because
pending that process, the child is undocumented, invisible
and
untraceable within the database of the department of Home Affairs.
What is more, it should be borne in mind that a permit in
terms s 22
of the Act is temporary.
[16]
Thus, the temporary permit has the advantage that the separated
children are documented in terms thereof, and thus legalising
and
regulating their stay in the country. This also means that the child
is under the temporary care of a documented refugee or
asylum seeker.
The investigations and findings by the department of Social
Development can be considered prior to a permanent permit
being
considered. There is nothing to prevent the department of Home
Affairs, even at that early stage when a temporary permit
is issued
to the child, to bring a particular case to the attention of the
department of Social Development for referral to the
Children's Court
if it has concerns about the adult asylum seeker's suitability or
bona tides.
In other words, there is no reason why the
processes of immigration status and that of the interests of the
child in the Children's
Court cannot run parallel. One does not have
to exclude the other.
[17]
It is also important to distinguish between the outcome of the
process of a Children's Court, on the one hand, and that of
the
immigration status, on the other. The former can only determine the
issues of welfare and the interests of the child, but cannot
determine issues such as the granting of refugee status, for example.
That determination is the sole preserve of the department
of Home
Affairs, and it cannot be made dependent on the findings of the
Children's Court. Just to illustrate the point. The Children's
Court
might make a determination that the adult asylum seeker is a fit and
proper person to care for the child. On the other hand,
the
immigration officials might determine that the child and/or the adult
asylum seeker do not qualify for asylum. In that event,
the child and
the adult asylum seeker would have no choice but return to their
country of origin. The finding of the Children's
Court would be of no
assistance at all.
[18]
Earlier I stated that the Act is silent on how separated children are
to be dealt with. The opposing respondents suggest that
they could be
dealt with in terms of s 32 of the Act, which is headed
'Unaccompanied child and mentally disabled person'. The short
answer
is that the section is clearly not applicable to separated children.
Accordingly, it is thus not applicable to the applicants,
as all of
them, came into the country accompanied by adults. In any event,
there is no serious dispute that the child applicants,
and those on
whose behalf the application was brought, are all separated children.
There is therefore no merit in this argument.
[19]
Consideration should also be given to our country's international
obligations in terms of s 233 of the Republic Constitution
of South
Africa, 1996 (the Constitution). It is clear from provisions of both
the Convention on the Rights of Children and the
African Charter
referred to earlier, that s 1 of the Act should be construed
purposefully and expansively. It is particularly noteworthy
that the
African charter expressly envisages a situation where a separated
child is accompanied by a 'close relative'.
[20]
This, in my view, ties in with the definition of a family member in
s
1(d)
of the
Children's Act, which
is not restricted to the nuclear
family, but also includes 'any other person with whom the child has
developed a significant relationship,
based on psychological or
emotional attachment, which resembles a family relationship'. I
therefore agree with the submission by
Prof.
Skelton,
for the
applicants, that the
Children's Act takes
a broader, more African
view to the concept of family, and that this should dispose this
court towards a more flexible approach
to the interpretation of a
'dependant' in s 1 of the Act.
[21]
Counsel also pointed out that the definition of a 'dependant' in s 1
of the Act is flexible in terms of the interpretation
of the word
when it comes to older people who are dependents - the destitute, the
infirm or aged. The definition obliges the department
of Home Affairs
to accept such a person as a 'dependant' and include them in the
asylum application of the adult he or she accompanies.
From that
point of view, counsel contended that the same measure of flexibility
should be applied in respect of children who accompany
the adult
asylum seeker. I agree.
[22]
Constitutionally, this court is enjoined by s 39(2) of the
Constitution, when interpreting any legislation, to promote the
spirit, purport and objects of the Bill of Rights. Two
interpretational obligations arise from the Constitutional Court's
construction
of the obligations brought about by s 39(2). First, that
where the court is faced with two interpretations, one
constitutionally
valid and the other not, the court
must
adopt the constitutionally valid interpretation provided that to do
so would not unduly strain the language of the statute
[1]
.
Second, where a provision is reasonably capable of two
interpretations, the one that better promotes the spirit, purport and
objects of the Bill of Rights should be adopted.
[2]
[23]
In the present case, the rights of children are implicated. Section
28(2) of the Constitution provides that the child's best
interests
are of paramount importance in every matter concerning the child. The
interpretation accorded to s 1 of the Act by the
opposing respondents
is, in my view, inimical to the interests of the children. It leaves
them in a state of uncertainty pending
the determination by the
Children's Court of the suitability of their relatives to care for
them. As stated earlier, pending that
determination, the children
would not be documented. Thus, the child is virtually invisible to
the immigration system. There is
no mechanism in terms of which
someone can be responsible for the child's welfare pending either the
determination of the immigration
status of the adult asylum seeker or
the determination by the Children's Court.
[24]
Given the above, I agree with the argument of the applicants that the
separated children should be documented as they come
into the
country, accompanied by their adult care-givers. At the risk of
repeating myself, this initial permit is temporary and
is dependent
on the later asylum claim, and possibly, an investigation by the
Children's Court. If the asylum applications for
the adult and child
are dealt with efficiently and promptly by the immigration officials
of the department of Home Affairs, their
final immigration status
would in time be determined. If the applications are favourably
considered, the department of Social Development
may, if it is
concerned about the suitability or otherwise of the care-giver, refer
the matter to the Children's Court for investigation.
[25]
I have pointed out earlier that this referral can even be done
simultaneously with the issuing of the temporary permit, in
suitable
circumstances. As to what those circumstances might be, I refrain
from attempting to define them. It would neither be
possible nor wise
to do so. Each case would be evaluated on its own merits. The enquiry
by the Children's Court is a separate and
an insulated enquiry from
the one as to whether the child should be granted temporary permit or
permanent asylum status. The Children's
Court would be undertaking an
investigation into the best interests of the child. It has a wide
discretion of the kind of orders
it may make under the
Children's
Act, with
regard to the best interests of the children.
[26]
To sum up, I am satisfied that the applicants have made out a proper
case for the relief they seek. Section 1 of the Act should
be
interpreted so as to include in the category of persons who are
dependents of the adult asylum seekers, separated children.
Such an
interpretation accords with the constitutional values of our
Constitution, and promotes the spirit, purport and objects
of the
Bill of Rights. It is also in line with our country's international
obligations.
[27]
There remains the issue of costs. The applicants have been
successful. There is no reason why costs should not follow the event.
[28]
In the result the following order is made:
1. It is declared that
separated children are dependents of their primary care-givers in
terms of the definition of 'dependant'
in section 1 of the
Refugees
Act 130 of 1998
;
2. The first and second
respondents are ordered to inform all Refugee Reception offices by
way of departmental directive to issue
the relevant permits to
separated children as dependants of their care-givers;
3. The first, second,
seventh and eighth respondents are ordered to pay the costs of the
application jointly and severally, the
one paying the others to be
absolved.
____________________________
T.M.
Makgoka Judge of the High Court
Date
of hearing: 11 March 2015
Judgment
delivered: 9 July 2015 Appearances:
For
the Applicants: Prof. A. Skelton
Instructed
by: Lawyers for Human Rights, Pretoria
For
the First, Second, Seventh and Eighth Respondents: Adv. M. Bofilatos
SC, Adv Maritz
Instructed
by: State Attorney, Pretoria
No
appearance for the Third, Fourth, Fifth and Sixth Respondents
[1]
Investigating Directorate: Serious Economic Of fences v Hyundai
Motor Distrihutors ( Pty) Ltd: in re Hyundai A1otor Distributors
(Pty) 1· Smit NO 200 I ( I ) SA 545 (CC ).
[2]
Wary Holdings (Pt;) Ltd 1· Stalwo ( Pty) and Another 2009 ( I
) SA 337 (CC) paras 46, 84 and 107.