REPUBLIC OF SOUTH AFRICA
rN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
Case Number. 43210/2019
(1J REPORTABLE.: NO
(2) Or INTERESTTO -RJUOOEs NO
(3) REVISED NO
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0ATE SIGNATURE
In ihe matter between·
JACQUES NGENDAKURIYO Applicant
And
THE MINISTER OF HOME AFFAIRS First Respondent
THE DIRECTOR GENERAL, DEPT. OF HOME AFFAIRS Second Respondent
THE REFUGEE STATUS DETERMINATION OFFJCER Third Respondent
THE STANDING COMMITTEE FOR REFUGEE AFFAIRS Fourth Responde nt
JUDGMENT
MAHOMED J
[1) This Is an application to review the decisions of the Respondents who reiected
the Applicant's application for asylum. The Applicant applied rn terms of
s24(3)(b) of the Refugee Act 130 Of 1998 and seeks relief In terms of section 6
of the Promotion of Administrative Jushce Act 3 of 2000, when he argued in the
main, that the Interview procedure was unfair, and that the Respondent retied on
irrelevant considerations. The Respondent opposed the application and
submitted thi!t lhe Applicant falled lo meet the requirements of section 3(a) and
(b) of the Refugee Act
(2) Mr. Ndungu for the Applicant contended that his client was denied protection in
terms of the audi alterom principle when the authorities interviewed him The
Appllcant alleged, inter afia, that he was never afforded sufficient lime to put his
application forward, he was never presented wlth Information adverse to him to
be able to challenge it, he was verbally abused by the Refugee Status
Determination Officer (RSDO), the officer was biased and unreasonable when
he rejected the application and only after having made his decision, he rnv1ted
the Applicant to bring any further rnrormation Ile might have to support a change
1n his decisfon.
(31 Mr. Nclungu reminded the court that the Applicant was abducted and taken In for
mi!jtary training When he escaped from the training camp and made his way-to
the Republic of South Africa, he feared for his safety and does not believe he wtll
be safe again in Rwanda He addressed the court on the accepted principles of
refoulement and argued that even if there was a perceptJon that the person would
be persecuted In any country if he returns, he cannot be sent or forced to go to
the country
{4J The respondents argued that the application is fraudulent, they contended that
there Is no consCS1ption for mlfrtary service in Rwanda and submrtted that the
Applicant's version on forced m1lrtary training camp must be rejected. Advocate
Sibeko for the respondents argued that the RSOO researched the policy of the
Rwandan government and noted that the Applicant was misleading and
fraudulent when he -put forward his reasons for seeking asylum Counsel
contended that this version is well known to the authorities and mustbe rejected.
Furthermore , counsel pointed out inconsistencies in the Applicant's responses in
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the application form he completed and noted that the errors were commonly
known, from other applications . She submitted that the applicant was counselled
or coached by other asylum applicants who may have been successful tn the
pasL
[5] Ms Slbeko on behalf of the respondents argued that the Applicant's version Is
not corroborated , and the Respondents cannot simply accept his version. and
grant him asylum, contending that anyone can enter the country and follow the
same tactics She submitted that the Responden t's dec1Sion was justified and
lawful and further contended that the Applicant was afforded an opportunity to
challenge the issue of conscnption for military service and Invited him to make
written representations within two weeks of Its rejection letter. in regard to his
claims of conscription , she argued that fact remains unchallenged . It was
contended that the Applicant's fear of persecution is unfounded , it must be
rejected and argued that the officer ,n charge is a senior officer who was fully
competent to reject the application on the same day He could make his decision
on the facts before him, he has dealt with similar applications many times before.
[6] Counsel for the Respondents further argued as the Applicant has not submitted
any further representallons regarding Rwanda's military se1V1ce policy, In terms
of the rule In Plascon Evans, the Respondent 's version must be accepted It was
further, contended that a review rs unnecessary , as the Applicant failed to
demonstrate that the conduct of the officer in charge was contrary -to the
provisions of the enabling AcL
[7J In reply counsel for the Applicant submitted that the 1nconsistenc1es are minor
and nothing much turns on the main issue, his clfent was never ·presented ' with
infonnalion, the officer merely ·explained" the reasons for rejecUon of the
application . It was argued that if the Information were presented to the App!lcant,
he would have had an opportunity to process the adverse facts and researched
around the decision taken. The applicant would have been in a stronger position
to present 1111s complete version. Mr Ndungu further contended that the
dOC\Jment the Applicant presented on the atrocities committed by the Rwandan
Government on Its people was rejected out of hand, the third Respondent failed
to see the substance of the appUcation, as the violence the people are subjected
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to induces real fears and that his client has indeed suffered. He argued further
argued that, In any event, the third Respondent was already functus when the
Applicant returned with the new information the department had already made
Its decision. Mr Ndungu submitted that there were _gross 1rregulantles In the
Interview process and on this ground atone the application must succeed.
Mr Ndungu referred the court to the judgment of the SCA 1n Somali Associahon of
South Africa and Others v the Refugee Appeal Board and Others•, in which the court
stated that the Refugee Status Deterrnlnabon Officers (RSD0) must be scrupulous in
observing a fair procedure . and must assist the asylum seeker at the outset and than
to gathw as much evidence to ob/am a full picture on which a decision can be taken.
The.court reiterated that the interview process must observe the important pnnciple of
audi elteram partem.
JUDGMENT
[8) Counsel for the applicant argued that hls clfent did not k:now of the case against
him, he was not presented with the facts against tt,m. In Gavric v The RefuWfJB
Status DetennFnabOII Officer Cape Town, and Others2 the Constitutional Coun
warned, •a person can only be said to have a fair and meaningful oppQrtunity to
make representations if the person knows the substance of the case against
him.•
(9) Having regard to the conspectus of the evidence before me. I am of the Vtew mat
the Applicant was not afforded an "°ppoctunity to put his complete case before
the RSDO, the evidence is tt'rat the officer focused on the Applicants forced
military conscription as a reason, when in fact the Applicant tried to present his
full version on the second attempt, that he was fearful of extreme violence and
atrocities perpetrated on the Rwandan citizenry
(10} The respondent's faffed to observe proper procedures the RS0Odld not consider
the. full fact£ when it rejected the applicabon on the day. I disagree with the
rea~ns advanced by the Respondent 's counsel on the fact that the officer 1s fully
'(515/2020) (2021) ZASCA UA, f2021J • All s.t. 731 (SCA), 2022 (3) SA 166 (SCA) (23Sep<ernber 2011)
'(CCT 217/161 (2018) lACC 38, 201SSA 2 l(CC)
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quafified to make the dec1.sIon, simply because he has been doing this job for a
long While and has heard the same version several times before I am of the
view that he must also ensure that he has•the full facts before him, he did not do
so, when he decided to reiecl the a:pphcation . According to the UN Guidelines on
Refug~s3 . slates
• .. the burden of proof in principle rests on the appllcant, the duty to 8$C8rl.ain
and evaluate all the refevanl facts is shared between the applicant and the
examiner. Indeed, In some cases, ,t may be for the examiner to use all /he means
st this disposal to produce the necessary evidence in support of the appl1cation . •
[11) The RSOO Is duty bound to ensure that he or she Is m possession of all relevant
facts relating to the application before a dec1s1on is taken. In my view relevant
facts must indude current research, the facts at hand as well as a meaningful
Interview which affords the applicant the opportunity to ·present" his case. In
casu. the evidence that he was verbally abused from the beginning remains
unchallenged, and tf correct, the officer could not have compfied with the basic
procedural requirements to assess the apphcation .
(12) I am of the view that the Applicant must be given another opportunity before
another ROSO, to ensure complete independence and Impartiality The evidence
Is that !he ROSO refused to hear the Applicant ~nd therefore, he is unlikely to
have heard the submissions In full, there may well be additional facts for
consideration on the next interview.
(13] Mr Ngundu alerted the court to the fact that the third Respondent simply adopted
the ffndlngs of the firstRespondent , as there was no evidence in Its report of any
Independent thought or any evidence 1hatthe decision maker had applied his or
her mind and therefore, therefore deciS1on stands to be reV1ewed.
(14) Regarding costs the applicant is substantially successful , and I see no reason
to deviate from the usual approacli that the costs follow the suit
' u Nl!CR ~naboolt on Prooedufes and Crtterta for llftemtln1n1 Refugee St.ana par 196
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(15] Accordingly. I make the following order:
1. The matter 1s remitted to the-third Respondent , for a rehearing of the Applicant's
application for refugee status within three (3) months of this order
2 The first and second Respondents are to pay the costs of this applicaUon on
scale B the one paying the other to be absolved
Date of hearing. 31 January 2025
Date of Judgmfmt 06 March 2D25 MAHOMEDJ
JUDGE OF THE HIGH COURT
PRETORIA
For the A~icant Mr K Ndungu instructed by Mr Klmam Ndungu
For the Respondents Adv N Slbeko instructed by State Attorney, Pretorra
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