Watchenuka and Another v Minister of Home Affairs and Others (1486/02) [2002] ZAWCHC 64 (15 November 2002)

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[2002] ZAWCHC 64
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Watchenuka and Another v Minister of Home Affairs and Others (1486/02) [2002] ZAWCHC 64; 2003 (1) SA 619 (C); 2003 (1) BCLR 62 (C) (15 November 2002)

0
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
[CAPE OF
GOOD HOPE PROVINCIAL DIVISION]
CASE NO: 1486/02
In the
matter between:
MURIEL
MILLIE WATCHENUKA
First Applicant
CAPE TOWN
REFUGEE CENTRE
Second Applicant
and
THE
MINISTER OF HOME AFFAIRS
First Respondent
THE DIRECTOR
GENERAL,
DEPARTMENT
OF HOME AFFAIRS Second Respondent
THE
CHAIRPERSON STANDING
COMMITTEE
OF REFUGEE AFFAIRS
Third Respondent
JUDGMENT
DELIVERED ON 15 NOVEMBER 2002
_____________________________________________________________
H.J. ERASMUS, J
On 28 February 2002 the applicants brought an
urgent application in which they sought an order in the following
terms:
Condoning the Applicants’
non-compliance with the Rules of Court and granting leave for this
application to be heard as a matter
of urgency.
Declaring
that the prohibition on work and study contained in Annexure 3 read
with Regulation 7(1) of the regulations made by First
Respondent in
terms of
Section 38
of the
Refugees Act 130 of 1998
is
unconstitutional.
Directing
the Respondents:-
to
permit First Applicant to be employed pending the finalisation of
her application for asylum made on 7 February 2002 in terms
of
Section 21
of the
Refugees Act 130 of 1998
.
to
permit First Applicant’s son, Sipho Ezekiel Mlagisi to pursue his
studies pending the finalisation of First Applicant’s (and
his)
application for asylum made on 7 February 2002.
Granting
the Applicants further or alternative relief.
Ordering
any Respondent who opposes this application to pay the costs
thereof.
The matter
was by agreement between the parties postponed to 4 June 2002 and
thereafter to 14 August 2002. The matter was argued before
me on 14
and 15 August 2002. Mr Katz appeared for the applicants and Mr Jacobs
for the respondents. I am indebted to counsel for
their comprehensive
and helpful arguments.
Parties
and locus standi
The first applicant is
Muriel Millie Watchenuka, a Zimbabwean national. The second applicant
is the Cape Town Refugee Centre, a voluntary
association which
provides assistance to asylum seekers in need.
The first
respondent is the Minister of the Department of Home Affairs (“the
Minister”) who is the Minister responsible for the
administration
of the
Refugees Act 130 of 1998
. The second respondent is the
Director General of the Department of Home Affairs, and the third
respondent is the chairperson of
the Standing Committee for Refugee
Affairs, a committee established in terms of
section 9
of the
Refugees Act 130 of 1998
.
In
their papers, the respondents asserted that the applicants do not
have the capacity to launch the application and that they are
accordingly not entitled to the relief sought. At the hearing, the
respondents did not persist with the objection to the applicants’
locus standi
.
The
Refugees Act 130 of 1998
Introduction
Prior to the
Refugees
Act 130 of 1998
coming into force, foreign nationals who made
application for asylum and refugee status in South Africa were dealt
with in terms
of the provisions of the Aliens Control Act 96 of 1991.
The Refugees Act 130 of 1998 (“the Act”) was,
according to its long title and preamble, promulgated to give effect
to international
legal instruments, principles and standards relating
to refugees and to provide for the reception into South Africa of
asylum seekers.
In 1995 South Africa became party to the 1951 United
Nations Convention Relating to the Status of Refugees, the 1967
Protocol Relating
to the Status of Refugees and the 1969 Organisation
of African Unity Convention Concerning the Specific Aspects of
Refugee Problems
in Africa.
The Act was assented to on 20 November 1998 and
was put into effect as from 1 April 2000 (Proclamation No 22 of 2000,
Government Gazette
No 21075 of 6 April 2000).
Definitions
Section 1 of
the Act contains a number of definitions which are important within
the present context.
Asylum
means refugee status recognised in terms of the Act.
The Act draws
a clear distinction between those who are applying for asylum and
those who have been granted asylum and affords different
rights to
each of them. An
asylum seeker
is defined as “a person who
is seeking recognition as a refugee in the Republic”, and a
refugee
“means any person who has been granted asylum in terms of the Act.”
Refugee Status
Refugee
status is provided for in section 3 of the Act. The section provides
as follows:
“Subject to Chapter 3, a person qualifies for refugee status for
the purposes of this Act if that person –
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
owing
to external aggression, occupation, foreign domination or events
seriously disturbing or disrupting public order in either
a 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
too seek refuge elsewhere; or
is a
dependant of a person contemplated in paragraph (a) or (b).”
Application for asylum
Chapter 3 (sections
21—24) of the Act deals with applications for asylum. Section 21(1)
provides that an application for asylum
must be made in person in
accordance with prescribed procedures to a Refugee Reception Officer
at any Refugee Reception Office. Pending
the outcome of the
application, the Refugee Reception Officer issues the applicant with
an asylum seeker permit in terms of the provisions
of section 22 of
the Act. Subsections (1) and (3) of section 22 provide as follows:
“(1) The
Refugee Reception Officer must, pending the outcome of an application
in terms of section 21(1), issue to the applicant
an asylum seeker
permit in the prescribed form allowing the applicant to sojourn in
the Republic temporarily, subject to any conditions,
determined by
the Standing Committee, which are not in conflict with the
Constitution or international law and are endorsed by the
Refugee
Reception Officer on the permit.
------------------
(3) A Refugee Reception Officer may from time to time extend the
period for which a permit has been issued in terms of subsection
(1)
or amend the conditions subject to which a permit has been so
issued.
”
The decision
regarding the application for asylum is taken by the Refugee Status
Determination Officer. Chapter 4 (sections 25—26)
makes provision
for reviews and appeals concerning that decision.
A person who
is successful in his asylum seeker application and is granted asylum,
is entitled to seek employment and is entitled
to the same basic
health services and primary education which the inhabitants of South
Africa receive from time to time (section
27 (f) and (g) of the Act).
Standing Committee for Refugee Affairs
Section 9 of the Act
provides for the establishment of a Standing Committee for Refugee
Affairs. It provides as follows:
“(1) There
is hereby established a Standing Committee for Refugees Affairs.
(2) The
Standing Committee must function without any bias and must be
independent.
(3) The headquarters of the Standing Committee must be determined by
the Minister.”
In terms of
section 10 of the Act, composition of the Standing Committee is as
follows:
“(1) The Standing Committee must consist of –
a
chairperson; and
such
number of other members as the Minister may determine, having regard
to the likely volume of work to be performed by the Committee.
(2) The chairperson and other members of the Standing Committee must
be appointed by the Minister with due regard to their experience,
qualifications and expertise, as well as their ability to perform the
functions of their office properly.
(3) A person may not be appointed as a member of the Standing
Committee if he or she –
is
not a South African citizen;
has
been sentenced to imprisonment without the option of a fine during
the preceding four years.
(4) At least one of the members of the Standing Committee must be
legally qualified.”
The powers
and duties of Standing Committee are set out in section 11 of the
Act, as follows:
“The Standing Committee –
may
formulate and implement procedures for the granting of asylum;
may
regulate and supervise the work of the Refugee Reception Offices;
may
liaise with representatives of the UNHCR or any non-governmental
organisation;
must
advise the Minister or Director-General on any matter referred to it
by the Minister or Director-General;
must
review decisions by Refugee Status Determination Officers in respect
of manifestly unfounded applications;
must
decide any matter of law referred to it by a Refugee Status
Determination Officer;
must
monitor the decisions of the Refugee Status Determination officers;
and
must
determine the conditions relating to study or work in the Republic
under which any asylum seeker permit may be issued.”
Regulations
In terms of
section 38 of the Act, the Minister may make regulations pertaining
to various issues relating to applications for asylum
and asylum
seekers. Thus he is in subsection (1) empowered to make regulations
relating to,
inter alia
–
a
large-scale influx of asylum seekers into the Republic;
………………
the
conditions of sojourn in the Republic of an asylum seeker, while his
or her application is under consideration.
Subsection (2) provides that a
regulation under subsection (1)(a) may only be made in consultation
with the Premier of any province
into which the influx takes place.
Refugee
Regulations (Forms and Procedure) 2000
The Minister,
acting in terms of section 38 of the Act, made regulations that are
contained in a schedule to Government Notice No
R366 dated 6 April
2000 in
Government Gazette
No 21075. These regulations are
known as the Refugee Regulations (Forms and Procedure) 2000.
Regulation
7 provides for an asylum seeker permit as contemplated by section 22
of the Act. Annexure 3 contains a model asylum seeker
temporary
permit that a Refugee Reception Officer must issue to asylum seekers
as contemplated by section 22 of the Act. The permit
contains,
inter
alia
, sections headed “A. Personal particulars of Holder” and
“B. Conditions”.
Under the
heading “B. Conditions” are ten different items dealing with
various matters such as the place at which the permit holder
may
reside temporarily and when the permit holder is required to leave
South Africa. Item 9 under this heading contains the following:
“Other
conditions … EMPLOYMENT AND STUDY PROHIBITED”
Accordingly,
a permit issued in terms of section 22 must contain the condition
that employment and study is prohibited despite the
fact that
permission has been granted to the permit holder to remain in South
Africa. This is so because of regulation 7(1)(a) which
provides that
a permit in terms of section 22 must be in the form and contain
substantially the information prescribed in Annexure
3 (which
contains the prohibition) to the regulations. It is this prohibition
on work and study which the applicants seek to be declared
unconstitutional.
The
contentions of the parties
The applicants advance
three grounds for their contention that the prohibition of work and
study contained in the regulations made
by the Minister is
unconstitutional:
The
condition is invalid because the Minister imposed the condition
(prohibition) without having regard to any determination made
by the
Standing Committee.
The
members of the Standing Committee were appointed unlawfully and
accordingly any determination made by it is unlawful and
unconstitutional.
The
prohibition violates an asylum seeker’s constitutional rights.
Failure to have regard to
determinations made by the Standing Committee.
Three
provisions of the Act deal with conditions of sojourn of asylum
seekers in the Republic. Section 38(e) empowers the Minister
in
general terms to make regulations relating to the conditions of
sojourn in the Republic of an asylum seeker. Section 22(1) of
the Act
vests the power to determine the conditions of sojourn contained in
an asylum seeker permit in the Standing Committee. Section
11(h)
provides in explicit terms that the Standing Committee must determine
the conditions relating to study or work in the Republic
under which
any asylum seeker permit may be issued.
It is a
well-known principle that “a statute ought to be so construed that,
if it can be prevented, no clause, sentence, or word
shall be
superfluous, void or insignificant” (
per
Cockburn J in
The
Queen v Bishop of Oxford
(1879) 4 QB 245
at 261, cited with
approval in
Attorney-General, Transvaal v Additional Magistrate
for Johannesburg
1924 AD 421
at 436 and
S v Weinberg
1979
(3) SA 89
(A) at 98E). Meaning must be attributed to each of the
three sections on the basis that the legislature does not intend to
enact
purposeless provisions that have no effective or practical
meaning.
In terms of
the Act, the Standing Committee
determines
the conditions of
sojourn contained in an asylum seeker permit, and the Standing
Committee
must determine
conditions relating to study or work
in the Republic under which any asylum seeker permit may be issued.
Though the legislature has
in general terms given the Minister the
power to make regulations relating to the conditions of sojourn of an
asylum seeker, the
Minister cannot make regulations dealing with
conditions of sojourn contained in an asylum seeker permit without
having regard to
the determination made by the Standing Committee.
Similarly, the Minister cannot make regulations about conditions
relating to study
and work in the Republic under which any asylum
seeker permit may be issued without having regard to the
determination made by the
Standing Committee. If section 38(e) of the
Act were to mean that the Minister is empowered to make regulations
relating to the conditions
of sojourn contained in an asylum seeker
permit and relating to study or work in the Republic without having
regard to any determination
made by the Standing Committee, the
phrase “determined by the Standing Committee” in section 22(1)
and the provisions of section
11(h) would be meaningless and
redundant.
From the
foregoing it follows that if the Minister makes regulations relating
to conditions on matters provided for in sections 22(1)
and 11(h)
without reference to a determination made by the Standing Committee,
or if such determination is made after the making
of the regulations,
the regulations would be
ultra vires
and accordingly
inconsistent with the Constitution and invalid (
Pharmaceutical
Manufacturers Association of SA and Others: In re Ex Parte
Application of the President of South Africa and Others
[2000] ZACC 1
;
2000 (2)
SA 674
(CC);
2000 (3) BCLR 241
(CC) at para
[20]
, [33], [44], [50]).
The
Minister made the regulations containing the condition in issue on 6
April 2000 (see above under the head Refugee Regulations
(Forms and
Procedure) 2000). On 15 September 2000 the Minister made a further
regulation (regulation 19) dealing with “Transitional
Arrangements”
(Government Notice No R938 dated 15 September 2000 in
Government
Gazette
No 21573). The transitional arrangements contained in
regulation 19 are designed to deal with a backlog in outstanding
asylum applications
which had been received under the Aliens Control
Act 96 of 1991. The backlog procedure was compiled by the Standing
Committee. It
was specifically provided that:
“The
provisions of these procedures will apply only to applications which
were outstanding as at April 2000. The cut-off date for
consideration
of such applications will be March 2001, after which all applications
will be considered in terms of the
Refugees Act 130 of 1998
.
Similarly, the present concession allowing asylum seekers to work and
study will not apply to asylum applications received after
March
2000.”
At a meeting
of the Standing Committee held on 18 September 2000, it was resolved
that –
“in order to streamline the procedure in accordance with the
Refugees Act on
180 days, it must ensure that:
All
people who were granted employment or study in terms of the previous
Section 41
should continue to enjoy those rights.
Those
who are applying in terms of the new Act and given Section 22
permits:- the permit should read “Employment or Study prohibited”.
The Minister
made the regulations which include the prohibition on work and study
without regard to any determination made by the
Standing Committee.
At the time when the regulations were made the Standing Committee
had, in fact, not made any determination. The
Standing Committee only
made its determination some five months after the regulations had
been made.
In view of
the foregoing, the applicants are entitled to an order declaring the
prohibition on work and study contained in the regulations
to be
ultra vires
and accordingly inconsistent with the Constitution
and invalid.
The
composition of the Standing Committee
The second
ground on which the applicants attack the validity of the condition
is that the members of the Standing Committee were
appointed
unlawfully and accordingly any determination made by it is unlawful
and unconstitutional. In this regard the applicants
rely on the
proposition that and act by an improperly constituted tribunal is
ultra vires
the tribunal so constituted and is invalid. The
provisions of a statute as to the constitution of a board or similar
body must be
strictly complied with (see LA Rose-Innes
Judicial
Review of Administrative Tribunals in South Africa
(1963) at
120).
The exercise
of a power or duty of the Standing Committee granted to it by the
provisions of the Act is, therefore, valid an lawful
only if the
establishment of the Standing Committee satisfies the requirements of
sections 9 and 10.
Section 9(2)
of the Act requires the Standing Committee to be independent and to
perform its functions without any bias. Section
10(2) of the Act
provides that the Minister must appoint the chairperson and members
of the Standing Committee with “due regard”
to their ability to
perform their functions properly.
According to
the minutes of the meeting of the Standing Committee held on 18
September 2000, the chairperson of the Standing Committee
was Adv JE
Leshabane, and the members were Dr M Machele and Mr P Lechaba. Dr
Machele is the Deputy Director of Refugee Affairs based
in the
Department of Home Affairs and the deponent, on behalf of all three
respondents, to the opposing affidavit in these proceedings.
In her
replying affidavit, the first applicant alleges that the other
members of the Standing Committee are also employees of the
First and
Second Respondents.
Baxter
Administrative Law
(1984) points out that while there is
“no clear single
principle which seems to have governed the legislative choice of
tribunals rather than ministers or departmental
officials for certain
decisional functions”,
an important
consideration in this regard is --
“the desirability
of an impartial decision free from the considerations of policy which
departmental officials and ministers are
(rightly) interested in
propagating but which engender so-called ‘departmental bias’.
This is particularly important where rights
are at stake or where a
decision could have drastic consequences for individuals.”
In
New National
Party of South Africa v Government of the Republic of South Africa
[1999] ZACC 5
;
1999 (3) SA 191
(CC);
1999 (5) BCLR 489
(CC) at par
[162]
O’Regan J
emphasised the importance of independent institutions as a structural
component of our constitutional democracy, and
stressed that other
organs of State are obliged to assist and protect these institutions
to protect their independence, impartiality,
dignity and
effectiveness.
The applicants say that
Government employees, and especially functionaries employed by the
Department of Home Affairs, cannot perform
their functions
independently and without bias. It is, therefore, inappropriate for a
Deputy Director of Refugee Affairs, or any
other employee in the
First Respondent’s Department, to be a member of the Standing
Committee. In the circumstances, the Standing
Committee cannot be
regarded as independent, and any decision taken by such Standing
Committee is unlawful and should be set aside.
Moreover, in
terms of section 11 of the Act, included in the powers and duties of
the Standing Committee, is the obligation to advise
the Minister or
Director-General on any matter referred to it by the Minster or
Director-General, and the power to review certain
decisions of
Refugee Status Determination Officers. The object of the legislature
seems to have been to provide the Minister and
the Director-General
with a source of independent advice, and to have decisions of Refugee
Status Determination Officers reviewed
by an independent tribunal. A
committee consisting of employees of the Department of Home Affairs
can hardly be a source of independent
advice, nor constitute an
independent review tribunal.
In this
matter, as has been shown above, the Minister made the regulations
which include the prohibition on work and study without
regard to any
determination made by the Standing Committee. For that reason alone
the applicants are entitled to the order they seek.
The determination
subsequently made by the Standing Committee does not affect the
issue. It is, accordingly, not necessary in these
proceedings to make
a finding that the members of the Standing Committee were appointed
unlawfully, and that its determination was
for that reasons unlawful
and unconstitutional and thus invalid.
Violation of
asylum seeker’s constitutional rights
The third
ground on which the applicants attack the validity of the prohibition
is that it infringes or threatens rights protected
in sections 9
(Equality), section 10 (Human Dignity), section 11 (Life) and section
33 (Just Administrative Action) of the Constitution.
It was argued
that while it may well be that foreign nationals do not have the
right to freedom of trade, occupation or profession
provided for in
section 22 of the Constitution, the rights to life, dignity, equality
and administrative justice do apply to foreign
nationals who are
“persons”.
In view of my
finding that the regulation in question falls to be set aside on the
first ground advanced by the applicants, it is
not necessary to enter
into the issues raised under this head and the accompanying
limitations analysis.
Conclusion
The following order is
made:
The prohibition on work and study contained in Item 9 under the
heading “B. Conditions” of Annexure 3 read with Regulation
7(1)
of the regulations made by First Respondent in terms of Section 38
of the Refugees Act 130 of 1998 (contained in Government
Notice No
R366 dated 6 April 2000 in
Government Gazette
No 21075) is
declared to be inconsistent with the Constitution of the Republic of
South Africa Act 108 of 1996 and invalid.
The respondents are directed:-
to permit First Applicant to be employed pending the finalisation of
her application for asylum made on 7 February 2002 in terms
of
Section 21
of the
Refugees Act 130 of 1998
.
to permit First Applicant’s son, Sipho Ezekiel Mlagisi to pursue
his studies pending the finalisation of First Applicant’s
(and
his) application for asylum made on 7 February 2002.
3. The
respondents are ordered to pay the applicants’ costs jointly and
severally, the one paying the other to be absolved.
HJ
ERASMUS, J