About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Western Cape High Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Western Cape High Court, Cape Town
>>
2008
>>
[2008] ZAWCHC 124
|
|
Kiliko and Others v Minister of Home Affairs and Others (2739/05) [2008] ZAWCHC 124 (4 March 2008)
IN
THE HIGH COURT OF CAPE TOWN
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: 2739/05
In
the matter between:
DE
GAULLE KILIKO AND 6 OTHERS
Applicants
And
THE
MINISTER OF HOME AFFAIRS AND
2
OTHERS
Respondents
JUDGMENT:
4/03/008
VAN
REENEN, J:
1]
On 16 January 2006 I handed down a written judgment in this matter
in terms whereof: -
l.l]
the conduct of the respondents by having introduced a policy and
practice in the Refugee Reception Centre of the Western Cape
which
required officials to process no more than 20 asylum-seeker permits
per day was declared unconstitutional because it was
found to be
inconsistent with the fundamental rights of illegal foreigners as
embodied in sections 10 and 12 of the Constitution;
and
1.2]
a
structural interdict was issued in terms whereof the Western
Cape Chief
im
migration
Services ^Officer in the Department of Home Affairs was
directed to report to this court by not later than 3
May 2006 in the
form of an affidavit on a number of delineated aspects.
2]
I for the reasons set-out in paragraph 32 of that judgment, reported
as Kiliko and Others v The Minister of Home Affairs and
Others
2006(4) SA 114 (C) declined to make an order in terms of prayer 3
(incorrectly numbered as 4) of the notice of motion in
terms whereof
an order was sought directing the respondents to accept applications
for asylum by asylum seekers on or within a
reasonable time of such
applications being made. ! mention this merely to elucidate why I
have declined the invitation of Mr Katz,
who represented the
applicants in this matter, to grant a mandamus in that or a modified
form.
3]
Although the formulation of the terms of the structural interdict in
a few respects inadvertently exceeded the confines thereof
its
intended purpose was to achieve a discontinuation of the policy and
practice which had been found to have been unconstitutional
and to
monitor the implementation of the remedial measures that had been
envisaged.
4]
Mr Jurie de Wet, the Western Cape Chief Immigration Services
Officer (Mr De Wet) in compliance with the terms of the
structural
interdict filed an affidavit, jurat 1 0 May 2006, as well as a
supplementary affidavit, jurat 31 May 2006, in which
he dealt with
the aspects enumerated in the structural interdict and in doing so
made reference to a number of remedial measures
that were being
envisaged but had by then not been implemented as yet. With a view to
enabling the respondents to achieve the implementation
of such
measures and in order to assess the efficacy thereof I on 8 June 2006
postponed the interdict to 19 March 2007 and directed
the Western
Cape Chief Immigration Services Officer to file a further report in
the form of an affidavit by not later than 7 February
2007 in respect
of a further number of enumerated aspects.
5]
Mr De Wet filed a report in the form of an affidavit which had been
deposed to by him on 1 2 December 2007. He in paragraph 1
9 thereof
mentioned that a process engineer had been appointed by the first
respondent during December 2006 for the purpose of
conducting a
feasibility study; preparing a comprehensive report; and devising a
plan to facilitate the reception of asylum
seekers. As it
was
v
foreshadowed
that the outcome of the process engineers' recommendations would
result in a more effective handling and
timeous
adjudication of new applications of asylum seekers, the matter was on
the 19
th
of March 2007 and in chambers postponed by agreement between the
parties' legal representatives sine die with a view to
the
finalization and implementation of the process engineer's
recommendations.
6]
By arrangement with the parties' legal representatives
the matter was enrolled for hearing on 1 8 February 2008.
A report
which had to be filed by the 3
rd
respondent by 31 December 2007 - but was filed only on 31 January
2008 - and was deposed to by Yoliswa Mzamane, an Assistant Director:
Refugee Reception Office, Cape Town, annexed the said process
engineer's report and dealt with other developments in the handling
of applications for refugee status since the filing of the last
report on 1 2 February 2007.
7]
Me Mzamane, whilst avoiding to deal pertinently with the factual
averments made by Mr WiJiam Ralph Kerfoot (Mr Kerfoot) the
applicant's attorney, conceded in paragraph 9 of her affidavit
that the Refugee Reception Office in Cape Town lacks the capacity
to
help all persons on the same day that they present themselves for
section 22 permits but contended that all reasonable steps
have been
or are being taken to alleviate the problem. Such steps include -
7.1]
the acquisition of a building identified as NIB House in which is
envisaged to house the Cape Town Refugee Reception Office
by
September/October 2008 and allegedly will prevent its functions from
being hamstrung by space limitations.
7.2]
that until the end.of March 2008, and as a temporary measure, section
22 applications will be dealt with at the offices of
the Department
of Home Affairs in Barrack Street, Cape Town and thereafter at the
Backlog Office located at Airport Industria Nyanga,
Cape Town until
such time as the NIB Building is ready for occupation;
7.3]
that the complement of officials employed in various capacities in
the Refugee Reception Office in Cape Town has been increased
to 36;
that a further 5 Refugee Reception...'.Officers.
.aie_jo__be_a
.j3poLnted
shortly;
and that the appointment of a further 2 Refugee Reception
Office Managers has been approved in order to manage
the work of
the 14 Refugee Reception Officers;
7.4]
that improvements brought about to the information technology
systems of the Department of Home Affairs has brought about
a
reduction of the time required for the capturing of information of
individual applicants for section 22 permits from 45 to 1
5 minutes;
7.5]
that a system has been introduced to print section 22 permits on
special bar-coded security quality paper so as to counteract
the
fraudulent creation of such permits;
7.6]
that a time-saving system has been introduced in terms whereof
officers issuing section 22 permits are equipped with a computerised
work station and camera so that photographs of applicants can be
taken at the same point where information is gathered;
7.7]
that the Department of Home Affairs is in the process of integrating
its information technology services so as to avoid a duplication
of
applications for section 22 permits; to obviate the need of
transferring files between offices when applicants relocate; and
to
enable the centralised monitoring and management of the whole system;
7.8]
that
consultants have been appointed with the task of monitoring progress
at the various refugee centres; to identify problems;
and to devise
turnaround strategies; and
7.9]
that
since 25 January 2008 a system has been introduced in terms whereof
certain days have been allocated on which persons of different
nationalities max apply for section 22 permits in order, so it is
said, to create "more order" thereanent. As an aside:
it
will not be surprising if also that system is subjected to a
constitutional challenge in the future.
8]
What is apparent from the aforegoing is that the Department of Home
Affairs has belatedly introduced measures designed to alleviate
the
inordinate influx of asylum seekers to the City of Cape Town and its
environs. That such measures are neither timeous nor adequate
is
abundantly clear from the facts reflected in the affidavits of Mr
Kerfoot and
I
the
affidavits and documents that have been annexed thereto. It appears,
on the facts at my disposal, that of the approximately
300 people who
had presented themselves at the offices of the Cape Town Refugee
Centre on a daily basis during the period approximately
end of
November to approximately mid
;
December 2007, only 50 to 60 could be issued with section 22 permits.
The affidavits of those who have repeatedly but unsuccessfully
attempted to obtain section 22 permits paint a graphic and
debilitating picture of the gross inhumanity which is being meted out
to asylum seekers because of the failure oh the part of the South
African authorities to fully adhere to the International
instruments as regards the treatment of refugees assented to by the
Government and to fully comply with the laws passed by it
in order to
give effect thereto. The failure to provide sufficient facilities to
enable asylum seekers to submit applications to
Refugee Reception
Officers without delay and to have then considered by Status
Determination Officers have as a consequence that
until they are
issued with section 22 permits they are subject to all the
disadvantages and disabilities that have been enumerated
in
paragraphs 27 and 28 of the earlier judgment herein.
9]
One's offended sense of justice and instinctive desire for the
imposition of remedial action must however yield to
three
pivotal considerations. The first is the nature of the present
proceedings. What cannot be disregarded
is the fact that
the relief which had been sought originally has been dealt with in
the earlier judgment herein so that, save for
aspects of the
structural interdict that have not been fully addressed as yet or
have remained unresolved, I am functus officio.
The second is that
because of the demands on the public purse as a result the
Governments^ numerous constitutionally
prescribed
commitments, available resources are not unlimited (Cf Fose
v Minister of Safety and Security 1997(3) SA
786 (CC) at paragraph
72). Accordingly the most that can be expected of the Department
of Home Affairs is "to purposefully
take all reasonable
steps to ensure maximum compliance with [its] constitutional
obligations" (See: S v Jaipal 2005(4) SA
581 (CC) at paragraph
56) and that there is no basis on which it could be found that those
measures which have already been or
are intended to be implemented
in the immediate future are unreasonable. Especially as a
comparison of the data in paragraph
7.11 of the affidavit of Me
Mzamane
and paragraph 9 of the affidavit of Mr De Wet of 10 May 2006 show a
marked increase in a number of applications for section
22 permits
that are being processed at present. The third is that courts in
deference to the doctrine of the separation of powers
go to great
lengths when fashioning orders to avoid intruding into the
preserve of the executive arms of government.
Accordingly the nature
of any relief to be granted by me must refrain from prescribing how
the Department of Home Affairs should
perform its functions as
regards the handling of asylum seekers.
10]
In the light of the aforegoing and despite the robust views
articulated by me during the presentation of argument, I incline
to
the view that I can do little more than to issue an order in the
following terms:
The
matter is postponed to 12 December 2008 and the structural interdict
is extended to that date but only to the extent that the
Chief
Immigration Services Officer of the Western Cape (and no other
official) is directed to file a report in the form of an affidavit
with this court by no later than 5 December 2008 (no further
indulgences will be a 11 owe d) in wh i c h t he following aspects
are fully dealt with:
10.1]
whether
the relocation of the Refugee Reception Office to NIB House has been
completed or not. If not, what the reasons are and
if so what effect
it has had on the providing of more facilities for the acceptance of
applications for refugee status and the
consideration of status
determination applications and more in particular, the number of such
applications that are being processed
on a daily basis;
10.2]
the
extent to which the improvement and the integration of the
information technology system has been completed and if so, what
effect it has had on the number of asylum seeker applications and
status determinations that are being processed;
10.3]
the
combined impact of the measures in 10.1 and 10.2 above on the
escalating backlog of section 22 applications and status
determinations.
11]
I have given serious consideration to appointing a rapporteur to
report to this court as regards the matters in 10 above but
have
decided against it. I did so for principally two reasons. The first
is that the rapporteur's function would merely have been
that of a
conduit between the officials of the Department of Home Affairs and
this court and secondly, that the costs of a rapporteur
would have
been disproportionate to the limited benefit that could be gained
therefrom.
12]
The respondents are further ordered to pay the costs of the
application on 18 February 2007 but exclusive of the costs of
preparing
the ringbinder containing copies of other applications for
relief against one or more of the respondents herein. It is
recorded
that such costs are to be taxed on a scale as between party
and party.
13]
In conclusion: The Legal Resources Centre has a proud record of
having assisted litigants in redressing the human rights abuses
people had been subjected to prior to the advent of our present
constitutional dispensation. It is indeed ironic that less than
fourteen years into our newly established democracy the need has
again arisen for that institution to feel obliged to assume that
laudable role. Its staff, especially Mr Kerfoot, must be commended
for the invaluable services they are providing to
geographically and socially dislodged fellow human beings who are so
desperately in need of the services that they provide.
D.
VAN REENEN