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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case number: 23987/2024

In the matter between:

M[...] A[...] M[...] First Applicant

F[...] V[...] H[...] Second Applicant

And

DIRECTOR -GENERAL: HOME AFFAIRS First Respondent

MINISTER OF HOME AFFAIRS Second
Respondent
_____________________________________________________________________
Coram : Da Silva Salie J
Date of Hearing : 29 May 2025
Judgment delivered : 29 May 2025
Attorneys F or Applicants : Craig Smith & Associates
OFFICE OF THE CHIEF JUSTICE
REPUBLIC OF SOUTH AFRICA
Ref: Mr Craig Smith
Counsel for Respondents : Adv. Ntokozo Mjiyako
Attorney s for Respondent s : State Attorneys
Ref: Ms Karjiker


JUDGMENT DELIVERED AFTER HEARING ON 29 MAY 2025


DA SILVA SALIE J:

Introduction :

[1] This is an application in terms of section 6 of the Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”) read with section 33(1) and (2) of the Constitution of the
Republic of South Africa, 1996 (“the Constitution”).

[2] This matter was argued befo re me earlier today. The facts and the submissions
by the parties were argued and ventilated in full during the hearing this morning . This
judgment is delivered ex temp ore and does not rehash the facts and the respective
submissions in detail, save to the extent necessary and I deal with the crux of the matter
and as set out later in this judgment.

[3] The applicants seek the following relief:

(a) an exemption in terms of section 7(2)(c) of PAJA from having to exhaust
internal remedies.

(b) the review and setting aside of a decision by the Refugee Status
Determination Officer (RSDO), issued in terms of section 24(3)(c) of the
Refugees Act 130 of 1998 (“the Refugees Act”); and

(c) an order remitting the application to a different RSDO for recons ideration
de novo .

(d) costs

Background :

[4] The First Applicant is an adult Muslim male citizen of Chad who alleges that he
fled persecution on the grounds of his sexual orientation, which is criminalised in his
country of origin. He was arrested in Chad during 28 September 2022 whereafter he
was co nvicted on charges of homosexual activities and sentenced to 18 months
imprisonment. On appeal, his sentence was reduced to 12 months with the option of
paying a fine.

[5] He was released from prison in February 2023. He entered South Africa in May
2023 , by way of a visitor’s visa. The first applicant (“applicant”) has a long -term partner,
the second applicant, who is a South African citizen and medical doctor . In and during
2024 he applied for asylum in t erms of the Refugees Act 130 of 1998. His most recent
interview was on 13 September 2024. The reasons provided by the R efugee Status
Determination Officer (“R SDO ”) for rejecting his application are quoted as follows:
(Record page 48)

“Reasons for Decision”
Passing laws in Chad is not the monopoly of the Parliament. Such power
belongs concurrently to the Parliament and the Executive Branch (article 137).
There is a reserved legislative domain defined by the Constitution (article 127).
All other matters tha t have not been expressly identified to be within the ambit of
the reserved legis lative domain fall under the executive domain. Existing
legislation on matters belonging to the exe cutive domain can be modified by a
decree after consultation with the Supre me Court (article 138). Any subsequent
intervention of the Parliament in the executive domain shall be established by the
Supreme Court before its eventual modification by decree.
During the discussion of a bill, if the Government is of the view that a proposal or
an amendment falls outside the reserved legislative domain, it can draw the
attention of the Parliament by raising the inadmissibility (irrecevabilité) of such a
proposal or amendmen t. In case of disagreement between the National
Assembly and the President of the Republic, either party can defer the matter to
the Supreme Court that shall take a decision within eight days (Article 140 of the
Constitution).
The judiciary is independent from the Executive and the Legislature . Judges
remain in function on a permanent basis, and they are only subject to the law in
the exercise of their function.
The judiciary comprises the Supreme Court which is the highest court in judicial
matters, Courts of Appeal, the High Military Court, Tribunals and the Justice s of
the Peace.
The administration of judiciary (including the appointment, promotion, discipline
and responsibility of judges, etc) is the responsibility of the High Court of the
Judiciary (HCJ). The HCJ proposes Judges to the President for appointment and
promotion . The Council is chaired by the President of the Republic, with the
Minister of Justice and the Chairperson of the Supreme Court respectively as first
and second Vice -Chairs . The other members of the HCJ are judges elected by
their peers. When sitting on disciplinary matters, the HCJ is presided over by its
second Vice -Chair.
Article 157 of the Constitution provides that the Supreme Court comprises five
chambers, inclu ding: the Judiciary Chamber, the Administrative Chamber, the
Consti tutional Chamber, the Audit Chamber and a non -permanent chamber
composed of seven (7) deputies and four (4) judges of the Supreme Court
elected by their peers to sit in cases of high treason.
As a result, all the tasks assigned to the former Constitutional Council and the
former High Court of Justice are now devolved to the Supreme Court.
You were arrested and sentenced by the court b y the court because of your
sexual oriatiantaion and hom osexuals’ are not allowed in your country.
You stated that you was released by the court because you have use a
lawyer. When I accessed your information concerning Homosexuals
there’s a separation of powers between the executive and the judicial
powe r in terms of the homosexual laws (eg). The Government doesn’t
allow same sex relations and the courts released the offenders.
Therefore your application has been rejected as Unfounded in terms of the
Refugee Act No. 130 of 1998 .” (emphasis own)

[6] The core of the application is that the RSDO’s reasons were unintelligible,
irrational and failed to consider the applicable law and the country of Chad’s conditions ,
in particula r their position on homosexuality and the other relevant factors of this asylum
application.

[7] The First Applicant submitted in support of his application for asylum that he fled
Chad after being convicted and imprisoned solely for being a homosexual man. He
further stated that his safety and freedom remain threatened in Chad, where
homosexuality is a criminal offence. He also indicated that his family ha d disowned him
and that he faces persecution both from the State and society at large in his home
country .

Central issue: Whether the reasons are intelligible?

[8] The central issue before this Court is whether the de cision by the RSDO
constitutes administrative action reviewable under PAJA and whether it falls within the
category of decisions that are unintelligible or irrational for purposes of exemption from
the duty to exhaust internal remedies. The respondent subm its and argues that the
reasons were not only adequate but so too clear. The argument follows on behalf of the
respondent that the applicant does not vindicate its submission that the matter reaches
the threshold as an “exceptional circumstance” to approach this Court for judicial
scrutiny without exhausting the internal remedies available to him. Consequently, it is
argued for the respondent that the application falls to be dismissed with co sts.

[9] During the hearing of this matter , State’s counsel submitted that the applicant
had not exhausted internal remedies and is thus non -suited to bring this application. He
also argued that the written reasons given by the RSDO (set out above) were a dequate,
and that if the applicant had any difficulty with it , he ought to have requested more
comprehensive reasons in terms of section 5(1) of PAJA.

[10] The applicants submit that the refusal letter is unintelligible and irrational and
thus constitute s a non -decision for purposes of PAJA. They contend that the reasons
were not capable of engaging with, nor could they have assisted the First Applicant to
pursue an appeal to the Refugees Appeal Authority (“ RAA”). They accordingly seek
exemption under section 7(2)(c) of PAJA.

Discussion :

[11] This brings me to consider the RSDO’s reasons for refusal through the lens of its
adequacy and intelligibility , as this lies at the heart of the applicant’s review. Durin g
argument this morning , both counsel, Mr. Smith and Mr. Mjiyako, were ad idem that t he
crux of this matter, the proverbial vexed question herein , is whether the reasons were
unintellig ible and whether in fact the applicant had exhausted its internal remedies.

[12] The RSDO concluded that the applicant’s asylum claim was ‘unfounded’, relying
primarily on the assertion that the judiciary in Chad is independent, and that although
homosexuality is criminalised, some courts had released offende rs. I find the argument
by State’s counsel that these reasons were clear and adequate rather problematic. The
conclusion of the reasons is internally contradictory and factually incoherent. It accepts
the factual basis of criminalisation of homosexuality , with consequent criminal
convictions and punishments in the applicant’s home country of Chad, whilst
simultaneously rejecting the credibility of the applicant’s claim of fear future persecution.

[13] In my view, t he reasoning reflects a profound misunderstanding of the legal
standards governing asylum, especially the well -founded fear of persecution required
under section 3(a) of the Refugees Act. The RSDO’s failure to assess the applicant’s
circumstances against the objective country con ditions – and without reference to
UNHCR materials or other international sources – undermines the lawfulness of the
decision in particular the construction of the reasons as set forth in the refusal . No
attempt was made to test or evaluate the applicant’s claim that his prior arrest,
imprisonment, and societal ostraci zation due to his homosexuality posed a continued
threat. In my view, this reasoning is not only egregiously unmeritorious — it represents
a failed attempt to even appear specious , let alone a ppear as if cogent. It is devoid of
factual or legal coherence, fails to engage with the core of the applicant’s claim, and
disregards the legal framework that governs asylum decisions and our international
obligations on the rights of LGBTQIA+ persons .

[14] In Makumba v Minister of Home Affairs 2014 JDR 2674 (WCC) , in an
application for the setting aside of the RSDO and remit to another RSDO, the Court
dealt with th e issue of an applicant who had sought asylum based on fear of
persecution in her home country of Malawi for being lesbian. In setting aside the
decision of the RSDO, the judgment sets out at paragraph 13 and 15 thereof that
Section 3 of the Refugees Act is the operative provision in determining refugee stat us;
section 2 of the South African international obligations under Article 1A(2) of the 1951
Refugee Convention and the United Nations High Commission for Refugees (UNHCR),
at paragraph 8 thereof reads:

“Sexual orientation is a fundamental part of human identity, as are those five
characteristics of human identity that form the basis of the refugee definition:
race, religion, nationality , membership of a particular social group and political
opinion. Claims relating to sexual orientation and gender identity are primarily
recognize d under the 1951 Convention ground of membership of a particular
social group .”

[15] Not only does the RSDO reasons not in any way give recognition of our
Constitutional and international obligations in recognition of the above, the RSDO's
reference to a separation of powers in Chad lacks relevance to the applicant’s
persecution claim and his previous prosecution and imprisonment based on his sexual
orientation as a gay man. The theoretical independence of the judiciary cannot override
the reality that consensual same -sex conduct remains criminalised in Chad, and that the
applicant was in fact prosecuted and imprisoned under those laws. If anything, the
position can only be worse for him should he return as he w ould be a convicted person
of homosexual offences. Upon conviction, he would be a repeat offender. The assertion
that 'courts released offenders' ignores that harm has already occurred and fails t o
address the applicant’s fear of re -arrest or societal persecution. After all, the laws and
regulations of a country reflect its social boni mores .

[16] The RSDO's reasons lack any intelligible or informative content that could assist
the applicant in fo rmulating an internal appeal. This falls squarely within the principles
established in Link v Director -General: Home Affairs 2020 (2) SA 192 (WCC) and
Koyabe v Minister of Home Affairs 2010 (4) SA 327 (CC ), which make clear that a
decision which is unintelligible or constitutes a 'non -decision' justifies direct review.

[17] In this matter, the: “Reasons for the decision” is characteristic of a sequence of
illogical babble. Words and sentences placed together under the heading “reasons ” do
not make i t more than what it is: unintelligible. In administrative law, a decision is
unintelligible when the reasons provided fail to convey the factual or legal basis of the
decision, are irrational or incoherent and does not enable the affected party to
determine whether or how the decision may be challenged. Such is the case here.

[18] The refugee status determination officers cannot hide behind the hurdle for
applicants having to proceed to exhaust his or her “interna l remedy” when it provides
unintelligent, obtuse and unfathomable reasoning . It must apply his or mind to the
decisions it sets out. In my view , the reasons by the RSDO falls squarely within the
category as an “exception al circumstance”. Section 33 (2) of our Constitution , dealing
with administrative action, guarantees that everyone whose rights have been adversely
affected by administrative action has the right to be given written reasons. The RSDO
herein is bound by such obligation, his powers are not unfette red and he was required
to apply his mind in a manner which provides reasons which are clear, adequate and
provide a meaningful basis from which the applicant can in fact comprehend, request
further reasons and decide in an informed manner as to hi s further rights and remedies
in law or make an informed decision about his future, act with self -determination and
consider his well -being.

[19] The applicant cannot be faulted for failing to request further or comprehensive
reasons. What reasons coul d follow an unintelligent set of “reasons” as these? While
Link confirms that parties should ordinarily seek written reasons under section 5(1) of
PAJA, this is not an immutable requirement. Whereas here, the reasons already
provided are manifestly nonsen sical and irrational, it would serve no purpose to request
elaboration. The reasons merely needed to be read (or stated as it was ) to be rejected
for being unintelligible . Requesting additional reasons would not have cured the defect,
nor would it have enabled a meaningful appeal to the Refugee Appeal Authority.

[20] It follows that the applicant has discharged the burden of demonstrating
exceptional circumstances under se ction 7(2)(c) of PAJA. The reasons provided to the
applicant by the RSDO were unintelligible and the administrative action is reviewable on
the grounds that it was not rationally connected to the information before the RSDO .

[21] In the circumstances, and for the reasons as set out above it is just and equitable
to set the decision of the RS DO aside and order that the applicant be re -interviewed
before a new refugee status determination officer, for reconsideration and taking into
account all relevant factors and then setting out adequate and clear reasons for the
decision.

Order:

[22] In the result, I make the following order :

(a) The First Applicant is exempted from the requirement to exhaust internal
remedies in terms of section 7(2)(c) of the Promotion of Administrative Justice
Act 3 of 2000.

(b) The decision of the Refugee Status Determination Officer, dated 13
September 2 024, rejecting the First Applicant’s application for asylum is reviewed
and set aside.

(c) The matter is remitted to a different RSDO for reconsideration within six (6)
months of the date of this order.

(d) The respondents are ordered to pay the costs of the application jointly and
severally, on Scale B, the one paying the other to be absolved .


_____________________ _____
DA SILVA SALIE, J
JUDGE OF THE HIGH COURT
WESTERN CAPE