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2012
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[2012] ZAGPPHC 362
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Katabana v Chairperson of Standing Committee for Refugee Affairs and Others (25061/2011) [2012] ZAGPPHC 362 (14 December 2012)
IN THE HIGH COURT
OF SOUTH AFRICA
(WESTERN CAPE
HIGH COURT, CAPE TOWN)
CASE
NUMBER: 25061/2011
DATE:
14 DECEMBER 2012
In the matter
between:
C M
KATABANA
..........................................................................................................
Applicant
And
CHAIRPERSON OF
STANDING COMMITTEE
FOR REFUGEE
AFFAIRS
..................................................................................
1st
Respondent
THE REFUGEES
STATUS DETERMINATION
OFFICER. SOBANE
MCITEKA
N.O
..............................................................
2nd
Respondent
THE MINISTER OF
HOME
AFFAIRS
...........................................................
3rd
Respondent
THE DIRECTOR
GENERAL OF THE
DEPARTMENT OF
HOME
AFFAIRS
..........................................................
4th
Respondent
JUDGMENT
DAVIS, J:
This is an
application to review a decision taken by the first and second
respondents in refusing to grant refugee status and asylum
to the
applicant. The applicant fled Uvira in the
South Kivu District
of the Eastern Democratic Republic of the Congo in 2009 when he was
aged 21, after his mother had been accused
of being a witch and was
then burned alive. Applicant was, in terms of the papers, pursued by
his mother’s killers and finally
found refuge in a police
station.
Attached to the
founding papers, applicant annexes maps and official reports which
show that Uvira, on the Eastern DRC border with
Burundi, is a
politically unstable area which are occupied by a number of rebel
armies. According to these annexures, this area
is characterised by
rampant violence and ongoing human rights violations. The papers make
clear that in this area there is a governmental
inability to control
the territory which has resulted in a breakdown of law and order.
The applicant
arrived in South Africa in November 2009. On 23 November he applied
for refugee status and asylum at the Maitland
Refugee Reception
Office. He could not speak English, but he avers that he was not
offered the necessary interpretation support.
He claims that he did
not understand questions which were asked of him or their meaning. He
did not know or understand his rights
or the criteria in terms of
which the application would be done. He avers in his founding
affidavit, that a stranger filled in
his asylum application form and
he was instructed to return to the reception office in the following
week. When he returned to
the office on 30 November 2009, after a
long wait, in which he claims he was not personally interviewed by
the Refugee Status Determination
Office (“RSDO”), he was
notified that his application had been rejected.
On 16 March 2011 he
received a letter from the Standing Committee on Refugee Affairs
(“SCRA”), which recorded that it
had upheld the decision
of the RSDO and rejected his application. His temporary asylum seeker
permit was withdrawn and he was instructed
to report to the
immigration officer for deportation. Applicant has now approached
this court for a review of these decisions.
He avers that the first
and second respondents’ decisions are unlawful, unreasonable
and were taken in a manner which was
procedurally unfair. In his
view, the conduct of first and second respondents had not promoted
South Africa’s international
law obligations, nor did it uphold
the spirit of the Constitution (Republic of South Africa Constitution
Act 108 of 1996) and Chapter
2 thereof.
In considering the
application for asylum, Ms Harvey, who appears on behalf of the
applicant, submitted that the RSDO had unlawfully
failed to comply
with the express provisions of the Refugees Act 130 of 1998 (“the
Act”) and regulations promulgated
in terms thereof. In her
view, the RSDO had done nothing to ensure that the applicant
understood his rights or the procedures which
were required to
process such an application, nor did it consider any evidence which
was presented, did not arrange for a competent
interpretation in
circumstances that was clear that it was necessary insofar as this
applicant was concerned. She also submitted
that it failed to conduct
a proper hearing, had not applied its mind to the fact of the
circumstances of the case and provided
no coherent reason for its
decision.
Ms Harvey contended
further that the first and second respondents had failed to apply
their mind to the relevant facts and circumstances
or to furnish
proper reasons for their decision. Further, Ms Harvey contended the
decisions taken were clearly unreasonable, certainly
in terms of
section 6(2)(h) of the Promotion of Administration of the Justice Act
(PAJA) 3 of 2000. In her view, the facts and
circumstances of the
case showed that the applicant was compelled to leave the country
owing to events seriously disturbing or
disrupting of public order
and fled his country of origin as a result of a well- founded belief
of being persecuted by reason of
his religion or membership of a
particular social group. He qualified, in her view, as a refugee
under the Act, read together with
certain international conventions,
to which I shall make reference later.
Furthermore, Ms
Harvey submitted, on the basis of a decision of this court in
Katshingu v Standing Committee for Refugee Affairs
and Others
(unreported decision of the WCC: case number 197264/2010: 2 November
2011 per Bozalek, J), that failure on the part
of the RSDO to provide
an interpreter, was “an egregious shortcoming rendering the
entire process to be unfair”. In
order to assess these grounds
of review, it is necessary to traverse the relevant law to which I
have already made reference.
The Statutory
Framework:
South Africa is a
party to a range of international human rights instruments, which are
relevant to these proceedings. They include
the United Nations 1951
Convention relating to the status of refugees, the United Nations
1967 Protocol relating to the status
of refugees and the 1969
Organisation of African Unity Convention in governing specific
aspects of refugee problems. To a considerable
extent, these
international commitments are given effect to in the Act, which
stands to be interpreted in the light of these particular
conventions
to which South Africa is a signatory.
Section 3(a) of the
Act provides that refugee status is accorded to those who, outside of
their country of origin, owing to a well-founded
fear of being
persecuted by reason of his or her race, tribe, religion,
nationality, political opinion or a membership of a particular
social
group or are compelled to leave their country, owing to events
seriously disturbing or disrupting public order in either
a part or
the whole of his or her country (section 3(b) of the Act).
In terms of section
5(2) of the Act even where the relevant circumstances justifying
refugee status have ceased to exist, a person
remains a refugee, if
he or she can invoke compelling reasons arising from previous
persecution for refusing to avail himself or
herself of the
protection of the country of nationality.
Section 2 of the Act
entrenches an international principle of non-refoulement, so that
South Africa may not return a refugee to
a country where that refugee
faces a genuine risk of serious harm. In terms of the Act, an asylum
seeker, such as the applicant,
must present himself to a refugee
reception centre where a refugee reception officer must assist him to
apply for asylum. In terms
of the regulation, the officer is required
to ensure that the asylum seeker is provided with a competent
interpreter. See regulations
in terms of section 38 of the Act GG
21075 GNR 366 of 6 April 2000. The application is then evaluated by
the RSDO, which must:
conduct a
non-adversarial hearing to elicit information bearing on the
applicant’s eligibility for refugee status and ensure
that the
applicant fully understands the procedures, his or her rights and
responsibilities and the evidence presented.”
In terms of section
24(2) of the Act, the RSDO is obliged to have due regard for the
rights set out in section 33 of the Constitution,
particularly to
ensure that the applicant fully understands the relevant procedures,
his or her rights and responsibilities and
the evidence so presented.
It is
understandable, given that many asylum seekers speak different
languages, that the regulations made provision for the RSDO
to ensure
that applicant fully understands by providing in Regulation 5, a
competent interpreter for the applicant at all stages
of the asylum
process. The RSDO is then obliged to make a decision to whether to
grant or refuse refugee status and asylum. (Section
24 of the Act).
An application may be rejected as unfounded or as manifestly
unfounded (defined in section 1 (xii) of Act).
Where the RSDO
rejects an application as manifestly unfounded, it has to submit a
record of proceedings and a copy of its reasons
to the Standing
Committee for Refugee Affairs (‘SCRA’) for review within
10 days. Asylum seekers have a right to adequate
notice of the right
to review, as well as the right to make presentations to the Review
Body. In terms of section 25 of the Act,
read together with
Regulation 13, the SCRA is required to review the decision. It has
wide powers to obtain relevant information.
It may, before reaching a
decision, invite the UNHCR representative to make oral written
representations, request the attendance
of any person, who is in the
position to provide it with information relevant to the matter, on
its own accord, make a further
inquiry and investigation into the
matter as it may seem appropriate and request the applicant to appear
before it to provide such
other information as it may deem necessary.
The SCRA must inform the RSDO of its decision “in the
prescribed manner and within
the prescribed time”, (section
25(4) of the Act) which, in terms of Regulation 13(4), is within five
days.
When a case is made
out in terms of section 3(a) of the Act for refugee status,
consideration must be given to an internal flight
alternative. This
alternative does not apply when a claim is made in terms of section
3(b) of the Act, which in compliance of Article
1(2) of the OAU
Convention, affords status to those who have crossed an international
border, owing to events disturbing to the
public order in either a
part or the whole of their country of origin.
The 2003 UNHCR
guidelines issued in this connection in July 2003, make this
qualification clear. Applicant, however, contends that,
as he comes
from Uvira in the Eastern DRC, his primary claim is brought under
section 3(b). However, for reasons that are to be
sourced in
respondents’ attitude, this court is required to say a little
more about the internal flight alternative. The
1992 UNHCR handbook
provides that for claims based on the well-founded fear of
persecution, the fear need not extend to the whole
territory of the
asylum seeker’s country of origin. A person:
will not be excluded
from refugee status merely because he could have sought refugee in
another part of the same country if, under
all the circumstances, it
would not have been reasonable to expect him to do so”.
See paragraph 91 of
the handbook. If the persecutor is a state, it is presumed that the
state will exercise authority in every part
of the country of origin.
Even if, as in this case, the agent of persecution is a non-state
agent, the question is whether or not,
in all the circumstances, the
particular claimant could reasonably be expected to move to the
proposed area to overcome his or
her well-founded fear of being
persecuted. It should be both practical and safe to access the
alternative place.
To the extent that
the applicant in this case relies on the additional claim under
section 3(b) of the Act, he could not reasonably
be expected, so Ms
Harvey contended, to move to another part of the DRC. As she noted,
the applicant was a young man, he was recently
orphaned and without
the physical means, for example, to purchase an air ticket to
Kinshasa. He was situated in a geographically
remote eastern border
of the DRC, surrounded by a jungle, which was occupied by rebel
armies. When he was dropped on the border
under cover of night by
persons aware that his persecutors had sought him for several days,
it was reasonable for him to have crossed
the border.
So much for the law
and the submissions of the applicant pursuant thereto.
Respondents' case:
I turn now to deal
with the respondents’ submissions. Respondents’ position
is set out in an answering affidavit
deposed to by Mr
Vuyani Shwane, the refugee status determination manager, who, in
answer to applicant’s case, says the following:
“The
applicant’s assertions as to why he remain (sic) unable to
avail himself of the protection of his government are
not sound. He
simply attempts to tie an ephemeral instant whereby his mother was
necklaced by a mop (sic) of people (if so) with
the political
instability in the country. Based thereupon, it, therefore, rates the
current government unable to protect him in
general terms,
notwithstanding the fact that he was already protected by the police
at the local police station for five days.
He elected to leave the
police station of his own accord with the assistance of the security
workers, but without the knowledge
of the police. Furthermore, it is
a basic rule of refugee law that a person must first exhaust all his
domestic remedies before
fleeing from his own country of origin to
seek refugee in another country. In casu the applicant could have,
and should have, used
the internal flight alternative and seek for
refugee elsewhere in his own country before fleeing to South Africa
(sic) ... The
applicant’s earnest believe (sic) that he will
face persecution if he is to return home because of his ties with is
mother,
does not make sense. The fact that he fears those who
necklaced his mother and would, therefore, not avail himself of
police protection
due to the instability, does not make sense. In
fact he does not pose a political threat to the authorities nor has
he had a well-founded
fear of being persecuted by reason of his race,
tribe, religion, nationality, legal opinion or membership of a
particular social
group. There was, therefore, no legitimate reason
for the applicant to leave his country.”
Turning to the
question of the assistance which was provided to the applicant, Mr
Shwane says:
“The applicant
was properly assisted by a interpreter. The applicant never expressed
his dissatisfaction of the interpreter.
Furthermore, the interpreter
simply wrote down the facts as it was stated by the applicant. The
fact that applicant did not know
the interpreter, did not (adversely)
impact on his application. However, it is denied that the interpreter
rushed through the application
and that the applicant was only given
10 minutes to give his information to the interpreter. The
interpreter wrote down all the
facts as it was stated by the
applicant without time constraints. In fact time was not of the
essence.”
Mr Shwane,
therefore, concludes as follows:
“The refugee
status determination officer rejected the applicant’s claim,
given the fact that the latter did not qualify
refugee status in
terms of section 3(b) of the Act. The standing committee which
reviewed the refugee status determination officer’s
decision,
accordingly upheld same, based on the fact that applicant’s
application was manifestly unfounded."
The reasons given
for these decisions are also set out in the papers and deserve to be
reproduced in order that a proper analysis
thereof can be undertaken.
The RSDO decision, insofar as it is relevant, reads thus:
“You claim
your mother was burned to death because of witchcraft and you fled.
Section 3 of the Act provides the grounds under
with an application
may be made and states that a person qualifies as a
refugee if that
person ... “
Thereafter follows a
reproduction of the sections to which I have already made reference.
The decision continues:
“The UNHCR
handbook of Procedures and Criteria for Determining Refugee Status,
at paragraph 196, page 47, affirms the decision
that it is quite a
general legal principle that the burden of proof lies on the person
submitting a claim. The standard of proof
is a real risk and must be
considered in the light of all the circumstances, i.e. past
persecution and forward looking appraisal
of risk (real risk).
Your application for
asylum is made on the grounds other than those on which an
application may be made under the Act ... You, therefore,
must return
to the Asylum Determination Centre upon the expiry of the section 22
permit to ascertain the status of your application
for refugee status
in South Africa.”
That report is then
signed by a Sobane Mciteka on 30 November 2009.
On 16 March 2011, a
further letter was sent to applicant, which was self-explanatory. It
reads thus:
“On 30
November 2010 the refugee status determination officer found your
application to be manifestly unfounded in terms of
section 24(3)(b)
of the
Refugees Act 130 of 1998
. In terms of the
section 25(1)
of the
Refugees Act 130 of 1998
, the Standing Committee for Refugee Affairs
must review any decision by the refugee status determination officer
in terms of
section 24(3)(b)
of the
Refugees Act. The
Standing
Committee for the Refugee Affairs has reviewed the decision of the
refugee status determination officer and upheld the
decision of 15
February 2011. The Standing Committee has upheld the decision of the
refugee status determination officer. Your
application has been
finally rejected as manifestly unsound. As a foreigner, you cannot
stay in the country on a temporary basis
indefinitely. You will have
to make the necessary arrangements to leave the country in 30 days
after receipt of this letter. You
will now be handed over to the
immigration inspector to be dealt with in terms of the
Immigration
Act 13 of 2002
as amended in 2004.”
This was then signed
by P Stemele.
In his replying
affidavit, applicant notes that Mr Shwane, who had deposed to the
version which I have set out, was not present
at these proceedings
and had no personal knowledge of what had transpired on the day. When
respondent alleges that applicant was
assisted by an interpreter, the
applicant submits that Mr Shwane has no knowledge thereof. Indeed,
the allegation is made by the
applicant (and not contested) that Mr
Shwane had no personal knowledge of the entire process. As a
consequence, respondent caused
a further affidavit to be generated.
In this case, Mr Carl Sloth-Nielsen, who is the chairperson of the
Standing Committee for
Refugee Affairs, he deposed to an affidavit,
seemingly an attempt to deal with the question of direct knowledge of
applicant’s
case. He avers in his affidavit as follows:
“I have
assumed the office as the chairperson of the Standing Committee for
Refugee Affairs on 1 September 2011 after I was
appointed by the
minister on 15 August 2011. I, furthermore, became aware of this
matter during the course of 2012, as the documents
were never served
on our offices by the applicants. The application was based on the
review of the second respondent’s decision
by previous members
of the Standing Committee on 15
February 2011, whose
term of office expired during February 2011.”
Mr Sloth-Nielsen
then continues thus:
“Thus, I am
currently in possession of all the information relating to this
matter dealt with by the previous members of the
Standing Committee
and I was also assisted by the officials in the department to acquire
all relevant information, given the fact
that the previous
chairperson of the Standing Committee is no longer in the service of
the department. In these circumstances I,
therefore, confirm that the
content deposed in the answering affidavit by Vuyani Shwane to be
true and correct.
It is further
request (sic) that this Honourable court condone the late filing of
my affidavit confirming the correctness of the
content of the
answering affidavit.”
In short, Mr
Sloth-Nielsen avers that “the version which I have set out as
being that of the respondent is true and accurate
and accords with
all of the documentation”. In the light of these averments, it
is necessary to examine the source documents
which were made
available to this court in this case. In particular there is a source
document entitled “eligibility determination
form for asylum
seekers”. It was completed, presumably, on behalf of the
applicant. I say presumably on behalf of the applicant,
because the
applicant avers (in uncontested evidence) that he is not proficient
in English. To the extent that this document is
relevant to these
proceedings, it is instructive to read the section which answers the
question “why are you applying for
asylum”:
“I have born
when my mother was not married. She get married. When I was seven
years old, she was the third wife. As I grow
up, there were rumours
that my mother’s family and my family, they were sorceress. So
when a person die in the area, even
in my stepfather’s family,
it was my mother who was blamed as a ... Because of that problem, my
stepfather was forced to
divorce my mother. Then life became very
hard. I stopped the school, because the insulting was too much. By
chance I get a girlfriend.
One day she visited me and when she went
back home, she feels sick. After two days she died. His family came
to my home. They burned
our house and they put into a tyre and
petrol, they burned her to death. They were looking for me. So I went
to Tanzania. In Tanzania
I took a
decision to go far
as I can. That is why I am here.”
Nowhere in this
document nor else in the record, until I read at the founding
affidavit, was the issue of the applicant finding
a safe harbour in
the police station ever mentioned. Reading Mr Sloth-Nielsen’s
affidavit, I must assume, if he so wholeheartedly
supported the
version of Mr Shwane, that he had access to documents that were
placed before the RSDO or the Standing Committee
that were not in the
court file, nor were they mentioned by the RSDO or the Standing
Committee in its decision. However these documents
constituted
evidence when these decisions were taken; that is there was
documentary evidence, or other evidence, which suggested
that the
applicant had been held in safety in the police station.
Central to the
respondents’ decision, as set out in the answering affidavit,
is the averment that there was no reason for
the applicant to seek
refugee outside of South Africa. An explanation of negligence on the
part of Mr Sloth-Nielsen, is the only
alternative explanation for the
averment in his affidavit, but I need not say more. Whatever the
case, there is no evidence that
this issue was placed before the RSDO
and was, therefore, considered by it in determining the veracity of
applicant’s version.
Mr Simon, who
appeared on behalf of the respondents, submitted that, although some
instability might exist, or might have existed,
in the applicant’s
own country, the fact remained, notwithstanding his affidavit that
the applicant had failed to adduce
evidence that suggested that the
applicant remained without protection due to the fact that he feared
that he might be associated
with his mother who was accused of being
a witch. In his view, therefore, the applicant had failed to invoke
compelling reasons
arising from previous persecution for refusing to
avail himself of the protection of the country of nationality. In
these circumstances,
Mr Simon submitted that the applicant ran no
risk of persecution if he was returned to his country.
Applicant’s
case:
So much, therefore,
for the documentary evidence placed before this court and the
submissions which were made by the parties. The
core of the
applicant’s case can be summarised thus:
1. His mother was
killed because of allegations of witchcraft. Allegations of
witchcraft are manifest, a cause of great harassment
and worse,
injury and death to those who are subjected to these allegations. As
the
United Nations High
Commissioner for Refugee Report (Research Report 169 of January 2009)
states at pages 42 and 43:
“An extensive
literature review of journal articles, UNHCR internal documents and
newspapers have shown, that witchcraft accusations
lead to violence
and persecution in locations throughout the world. Protection
concerns from witchcraft allegations can occur at
home and also
impact individuals throughout the cycle of displacement. Witchcraft
related violence may manifest as domestic violence,
child abuse or
mob justice. Workers of international organisations and
non-governmental organisations must be aware of the tenacity
of
witchcraft police, the very real threat they can create for
individuals and be willing to provide protection through monitoring,
relocation and awareness raising campaigns. UNHCR and government need
to be prepared to apply refugee law to claims that are based
on
witchcraft, by being aware that the phenomenon of witchcraft
persecution is still very much alive, those in the refugee field
may
be better prepared to be able to respond to the associated violence
and provide protection if needed.”
2. Applicant fled
for his life and was given protection in a police station.
There is nothing to
gainsay this averment nor to gainsay that his mother was not killed,
nor that persecutors sought to have him
apprehended, nor that they
stood outside the police station in an attempt to secure his capture.
3. After five days
in the police station, security at the police station, secreted him
out of the Congo, through neighbouring territories
and he finally
arrived in South Africa.
4. Supported by the
UNHCR Global Report, applicant avers that violence in the eastern and
western parts of the country, characterised
by atrocities, committed
by various armed groups, including sexual and gender based violence,
has resulted in the displacement
of more than 1.7 million people. The
continued instability hampered UNHCR’s programmes by reducing
access to certain areas.
A United State’s State Department
report, which was attached to the papers, supports this version. To
the extent that it
is relevant, it states:
“Internal
conflicts, mainly in the east, continue to significantly affect the
human rights situation and challenge the government’s
limited
ability to effectively control its territory, which is particularly
the case in North and South Kivu provinces. The conflicts
permitted
armed entities to commit violent abuses against civilians with little
chance that the government would be able to hold
the perpetrators
accountable. These entities include RNG’s such as Democratic
Forces for the Liberation of Luanda (FDLR),
Maimai (community based
self-defence groups), as well as dissident elements of the state
armed forces, including former members
of the National Congress for
the Defence of the People (CNDP) and some “regular” units
of the armed forces of the DRC
(FARDC). During the year RNG’s
continue to commit numerous serious abuses, some of which may be
constituted war crimes, including
unlawful killings, disappearances
and torture. RNG also recruited and retained child soldiers,
compelled force labour and committed
widespread crimes of sexual
violence.”
5. Applicant,
therefore, claims that he fled, owing to a well- founded fear of
being persecuted by reason of his
religion (witchcraft
is inextricably linked to this category), and further that the total
breakdown of law meant that he was compelled
to leave his place of
habitual residence in order to seek refuge.
On these papers,
none of this appears to have been considered in the process before
the RSDO nor by the Standing Committee. A belated
attempt was made to
latch on to the applicant’s affidavit, where he disclosed that
he had obtained refuge in the police station
for five days. How that
version can be transmogrified into not being at risk, was never
properly explained by respondents.
I accept that a body
such as the RSDO is not a court and is not required to prepare a
judgment. Cognisance must also be taken of
the large amount of
refugees who seek safety in the country. However, given our history,
and the manner in which other African
countries supported our
struggle for democracy, great care should be taken when people seek
the same hospitality that their countries
granted this country’s
refugees during our hour of need.
What this means
simply, is that these decisions must be carefully considered and that
some reason, however rudimentary, for a decision
should be set out. I
do not expect the RSDO, as I have already stated, to provide a
lengthy legal set of reasons, but in this case,
as is apparent from
the document that I have set out, there was no reason so provided.
There is no indication that any of key factors
which I have outlined
were ever taken into account. More disturbing, the Standing Committee
seems to have done nothing more in
acting as a safeguard for the very
demanding processes that must take place before the RSDO. The
decision taken, therefore, was
clearly unjustifiable in terms of the
evidence placed before this court and cannot be rationally related to
the facts as presented.
Realising the
difficulties attendant on these papers, Mr Simon, correctly sought
recourse in the doctrine of substitution. He submitted
that, in the
event that the court had decided that the decision of the first and
second respondent should be set aside, the matter
be referred back to
the original decision maker, based on the fact that it would not
cause any further delay or any waste of time.
In his view the
respondents were competent to deal with the applicant’s
application and the applicant would not be prejudiced.
The question of
substitution is itself a subject of jurisprudential investigation by
our courts. In University of the Western Cape
& Others v Member
of the Executive Committee for Health &
Social Services &
Others
1998 (3) SA 124
(C) at 131, the court set out special
circumstances which would support the substitution by a reviewing
court to the decision of
the regional functionary. These would
include, where the end result is a foregoing conclusion and it would
be a waste of time to
order the original functionary to reconsider
the matter, where further delay would cause unjustifiable prejudice,
where the original
functionary had exhibited incompetence or bad
faith and indicated that its mind was made up, making it unfair to
require the applicant
to submit to the same jurisdiction, or where
the court was in as good a position to make the decision itself. Ms
Harvey submitted
that the facts which were set before the court, laid
a basis for a reasonable person to conclude either that the
respondents were
incompetent or they had acted in bad faith in
refusing to afford applicant his most basic rights. They had failed
completely in
their duty to understand the political conditions in
the country of origin, resulting in the state’s inability to
protect
the applicant. They had not taken steps to find out, or
familiarize themselves with the vast body of research exploring the
origins
and prevalence of witchcraft accusations and indicating that
persecution of witchcraft qualifies as a ground linked to religion
or
membership of a group which justified an application for refugee
status.
I am not sure that
it is necessary to go so far. The fact is however that applicant has
been in South Africa waiting for a decision
for more than three
years. To return him to the Congo at this point would, in my view,
condemn him to an excruciating set of dangers
which seems wrong,
unjust and unfair. After three years to simply say ‘you have to
go back’ to a country where the
conditions are so obviously
supportive of his claim for refugee status is not just nor compatible
with the Act.
Furthermore, it is
difficult to see what other facts respondents can raise against the
applicant in this case, particularly since
they were not able to
produce any facts in their two decisions to which I have made
reference. Further, unless there are documents
which they have not
provided to this court, the only case that they have made out, was
one which was predicated upon a founding
affidavit of the applicant,
which was deposed to on 9 December 2011, long after the events
leading to a refusal of refugee status
had taken place. I consider
that this is a case for exceptional circumstances and that the
interests of justice dictate that this
court should make the
decision.
For these reasons,
the following order is made:
1. The decision of
the first respondent, confirming the decision of the second
respondent to reject the applicant’s application
for refugee
status and asylum is manifestly unsound, is reviewed and set aside.
2. The decision of
the second respondent rejecting the applicant’s application for
refugee status and asylum, is manifestly
unfounded and set aside.
3. It is declared
that the applicant is a refugee, is entitled to asylum in the
Republic of South Africa as contemplated by section
3 of Act 130 of
1998.
4. The third
respondent or a delegee is directed to issue to the applicant
recognition of refugee status in terms of section 27(a)
of the
Refugees Act 130 of 1998
, read with
Regulation 15(1)
within 14 days
of the date of this order.
5. First and second
respondent are ordered to pay the costs of this application.
DAVIS, J