REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2023-074862
( 1) REPORT ABL E: yg! I N O
(2) OF INTERES TJO OTHER JUD G ES: ~NO
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In the matter between:
DR MICHEL NDAYI MBUYA
and
THE CHAIRPERSON OF THE STANDING COMMITTEE
FOR REFUGEE AFFAIRS
THE MINISTER OF HOME AFFAIRS
THE DIRECTOR -GENERAL OF HOME AFFAIRS
JUDGMENT
MABESELEJ:
Applicant
First Respondent
Second Respondent
Third Respondent
[1] The applicant seeks an order declaring the two decisions taken by the first
respondent to withdraw his refugee status to be unlawful and set aside, and that he
be declared to be a refugee indefinitely as decided by the first respondent on 4 June
2014. The first decision to withdraw his refugee status was taken on 22 Septembe r
2022. The second decision was taken on 17 March 2023. The application is opposed
by the first respondent only.
[2] The applicant first applied for condonation for late filing of the supplementary
affidavit. The first respondent, too, made an application for late filing of the answering
affidavit. The reasons advanced by both parties are persuasive and have merit,
thereby justify granting of condonation.
[3] The applicant is a specialist doctor. He is registered as a public service
practitioner with the Health Professional Council of South Africa (HPCSA). He
originates from the Democratic Republic of Congo (OCR). He entered South Africa in
2006 and applied for asylum status in 2007. The asylum status was granted the same
year and the applicant continued to renew his refugee status. He was assured by the
first respondent that he would remain a refugee indefinitely.
[4] During 2012 while the applicant was awaiting the outcome of his certification
application to remain a refugee indefinitely, he and numerous other doctors were
targeted by and fell victim to a scam in which a certain Jose, claiming to be an
immigration consultant working for DHA approached them and offered his service to
apply for permanent residency on their behalf through his urgency. The applicant and
other doctors agreed to make use of the services of Jose. Jose informed the applicant
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that his passport from DRC would have to be renewed because the application for
permanent residency would have to be submitted with other relevant documents.
Subsequently, the applicant received a renewed DRC passport, issued on 27 March
2013, and permanent residence permit from Joose. Jose suggested that the applicant
travel to Mozambique to confirm the validity of the permanent residence permit. The
applicant did so and had no problems with customs officers on either side of the
border.
[5] On 26 January 2018 the applicant applied for permanent residence under section
27(d) of the Immigration Act. On 20 Ap ril 2018 the application was denied. The reason
being that the applicant was in position of a passport from DRC . DHA considered the
renewal of his DRC passport to be 're-availment" in terms of the Refugees Act, and,
requested the first respondent to consider withdrawing the applicant's refugee status.
On 29 May 2019 the first respondent gave notice to the applicant of its intention to
withdraw his refugee status. The applicant was given 30 days to make
representations. On 4 June 2019 the applicant made representations, requesting
clarity for the withdrawal of his refugee status. The first respondent confirmed receipt
of representations on 11 June 2019. On 22 September 2022, the first respondent
withdrew the applicant's refugee status. On 7 July 2023 the applicant's attorneys
received correspondence from the first respondent in which it gave clarity on its notice
which was sent to the applicant on 19 May 2019.
[6] Subsequent to the first respondent giving clarity to the applicant's attorneys, the
former again expressed an intention to withdraw the applicant's refugee status again.
It gave the applicant 30 days to make representations. The first respondent claimed
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to do so in terms of Section 6(2) (e) (ii) of PAJA. R epresentations were made on 06
March 2023. On 17 March 2023 the first respondent withdrew the applicant's refugee
status.
[7] The applicant argued that the first decision to withdraw his refugee status is
unlawful in that, his submissions were not considered. Additionally, having taken the
decision, the first respondent was functus officio. As a result, the first respondent had
no authority to re-visit the decision which gave rise to the second decision to be taken.
[8] The first respondent adm its to have taken decision to withdraw the applicant's
refugee status w ithout considering the applicant's written representations that were
made on 4 June 2019 which sought clarity regarding notice sent to him, on 29 March
2019, to withdraw his refugee status. In terms of the notice, the withdrawal of the
applicant's refugee status was based on Section 5(1 )(e) instead of Section 5(1) (a).
The decision was mainly based on the information at the first respondent's disposal
that the applicant re-availed himself of the protection of the DRC by obtaining a DRC
passport and failure by the applicant to make representations. This decision was
communicated to the applicant. Having realized that it had not considered that
applicant's letter, dated 04 June 2019, the first respondent withdrew its decision, gave
clarity to the applicant which was sought per the letter dated 4 June 2019, and invited
the applicant to make written submissions. Subsequent to the submissions been
made and considered, the first respondent notified the applicant of its decision, on 17
March 2023, to withdraw his refugee status.
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[9] Its is also admitted that the applicant was certified as a refugee indefinitely.
However, upon considering the written submissions ma de by the applicant on 6 March
2023, his refugee status was withdrawn.
[1 O] The issue for determination in this application is whether the withdrawal decision
are lawful, reasonable and procedurally fair administrative actions.
[11] It is common cause that the first defective decision was taken without considering
the applicant's request for clarity regarding notice sent to him on 29 March 2019, to
withdraw his refugee status. The decision was communicated to the applicant. Once
such decision was communicated to the applicant, the first respondent was functus
officio and has no power to set aside its decision, safe to apply formally for a court to
set aside the defective decision, so that the court can properly consider its effects on
those subject to it (MEC for Health, Eastern Cape and Another V Kirland Investments
(PTY) Ltd t/a Eye and Lazer Institute 2014(3) SA 481 (CC).
[12] Since the first respondent had set aside its own decision of 22 September 2022.
its action is unlawful. Additionally, the applicant had already appealed against the
decision, to the Refugee Appeal Board. For this reason, alone, the first respondent
had no power to again invite the applicant to make written submissions and make a
second decision. Regard should be had that, on 6 February 2023, DHA's Director:
litigation, advised the chairperson of the first respondent to withdraw the letter wh ich
constitutes the first withdrawal decision and to drop the first invitation for
representations and leave the applicant as an indefinite refugee. The Chairperson was
advised that the past mistakes that were made in the applicant's matter puts the first
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respondent in a 'weak position to litigate and will make the court more sympathetic to
the applicant and make an adverse finding against the Department and possible
punitive costs. For all these reasons the order should be granted in favour of the
applicant.
[13] In the result, the following order is made :
13.1 Condonation for late filing of the supplementary affidavit of the applicant is
granted.
13.2 Condonation for late filing of answering affidavit of the first respondent is granted.
13.3 The First Respondent's decision to withdraw the Applicant's Refugee Status in
terms of section 36 of the Refugees Act 130 of 1998, dated 22 September 2022
and delivered to the Applicant on the same date, is declared to be unlawful and
unconstitutional and is reviewed and set aside.
13.4 The First Respondent's decision to withdraw the Applicant's Refugee Status in
terms of section 36 of the Refugees Act 130 of 1998, dated 17 March 2023 and
delivered to the Applicant on the same date, is declared to be unlawful and
unconstitutional and is reviewed and set aside.
13.5 In terms of the letter issued by the First Respondent on 4 June 2024 with
reference numbers DBR/008293/06 and SCRA 702/12, the Applicant is certified
to remain a refugee indefinitely in terms of section 27(c) of the Refugees Act 130
of 1998.
13.6 The First Respondent is ordered to pay the costs of the application on the attorney
and own client scale.
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Date of hearing
Date of judgment
Appearances
On behalf of the Applicant
Instructed by
On behalf of the respondents
Instructed by
: 14 October 2025
: 17 October 2025
: Adv. Harding-Moerdyk
: Gumede Attorneys Inc.
: Adv . N . Matidza
: State Attorney
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