REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
( 1) REPORT ABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED.
z. 't / 04/-zo Z6
DATE SIGNATURE
In the matter between :
MOLEMBO M
and
THE MINISTER OF HOME AFFAIRS
THE DIRECTOR-GENERAL:
DEPARTMENT OF HOME AFFAIRS
CHAIRPERSON OF THE STANDING COMMITTEE
FOR REFUGEE AFFAIRS
CASE NO: 2019/50597
Applicant
First Respondent
Second Respondent
Third Respondent
The judgment was prepared and authored by the Judge whose name is reflected and is
handed down electronically by circulation to the parties' legal representatives by e-mail
and uploading it to the electronic file of this matter on Caselines. The date and time of
hand-down is deemed to be 10:00 on 29 April 2026.
JUDGEMENT
DE VILLIERS AJ:
INTRODUCTION
1. This application concerns the withdrawal of the applicant's refugee status and the
refusal of his application for certification in terms of s 27(c) of the Refugees Act 130
of 1998. The applicant seeks the review and setting aside of both decisions. He
seeks substitution, alternatively remittal.
2. The applicant is a citizen of the Democratic Republic of Congo. He was formally
recognised as a refugee in South Africa in January 2003. On 13 March 2014 he
applied for certification as a refugee indefinitely. The third respondent, the Standing
Committee for Refugee Affairs, thereafter issued a notice of intention to withdraw
his refugee status, received written representations, and on 13 July 2016 withdrew
that status.
3. The matter turned in argument on a narrow but important issue. The applicant
submitted that the SCRA considered only whether the circumstances originally
giving rise to recognition as a refugee had ceased to exist, but failed to consider
the further statutory enquiry required by s 5(1 )(e), namely whether other
circumstances had arisen which justified his continued recognition as a refugee.
4. The applicant also submitted that the enquiry had to be conducted with proper
regard toss 3(a) and 3(b) of the Act, the principle of non-refoulement, and the case
law concerning the inquisitorial and protective character of refugee-status decision
making. The respondents submitted that the original basis for recognition had fallen
away, that the later matters relied upon by the applicant were not the basis on which
he had been granted refugee status, and that substitution was in any event not
justified.
THE STATUTORY TEST
5. The legality of the impugned administrative decisions must be assessed under the
Act as it stood when those decisions were taken. The later statutory framework and
later SCRA Rules do not retrospectively determine whether the 2016 withdrawal
decision was lawful. They are relevant only to the extent that the court must now
craft an effective and competent remedy.
6. The pivotal provision is s 5(1 )(e). It provides, in substance, that a person ceases to
qualify for refugee status if he or she can no longer continue to refuse the protection
of the country of nationality because the circumstances in connection with which
he or she was recognised as a refugee have ceased to exist and no other
circumstances have arisen which justify continued recognition as a refugee.
7. The word "and" is important. Section 5(1 )(e) contains a conjunctive enquiry. The
decision-maker must ask, first, whether the circumstances in connection with which
the person was recognised as a refugee have ceased to exist. It must then ask,
second, whether other circumstances have nevertheless arisen which justify
continued recognition.
8. Section 36 permits withdrawal of refugee status where, after consideration of all
relevant facts and subject to PAJA, the person ceases to qualify for refugee status
in terms of s 5. Withdrawal under s 36 therefore depends upon a lawful and
complete cessation enquiry under s 5.
9. Sections 3(a) and 3(b) remain relevant to that enquiry. Section 3(a) concerns a
well-founded fear of persecution for a recognised ground. Section 3(b) concerns
external aggression, occupation, foreign domination or other events seriously
disturbing public order in part or the whole of the country of origin or nationality. In
a cessation enquiry, "other circumstances" may therefore include circumstances
engaging either s 3(a) ors 3(b), or the non-refoulement protection in s 2.
THE SCRA'S APPROACH
10. The SCRA was entitled to consider whether the original circumstances on which
refugee status had been granted had ceased. That is the first part of s 5(1 )(e). The
difficulty lies in the manner in which it dealt with the second part.
11. The respondents' answering affidavit explains that the SCRA had regard to the
applicant's original asylum material and treated the basis for recognition as being,
in essence, that MLC rebels were capturing people and that women were being
captured and given to rebels as wives. The SCRA then considered whether those
conditions continued to exist in Kinshasa and Equateur Province. It concluded that
they did not, or that the situation had materially improved.
12. The affidavit also records that the applicant's written representations referred to
matters including suppression of freedom of expression and peaceful assembly,
political instability, the risk of return, and the absence of family in the DRC. The
respondents' answer, however, is essentially that those matters were not the basis
on which refugee status was originally granted and did not qualify the applicant to
remain a refugee indefinitely.
13. That reasoning discloses the central problem. The fact that a circumstance was not
the original basis for recognition does not make it irrelevant to s 5(1 )(e). The second
part of the section is concerned precisely with whether other circumstances have
arisen which justify continued recognition. A functionary cannot answer that enquiry
by saying that the later circumstances were not the original basis upon which
refugee status was granted.
14. The applicant in paragraph 4 of the founding affidavit, sets out the alleged political
history of his family, their association with Mobutu and later with Jean Pierre Bemba
and the MLC, the death or disappearance offamily members, and his fear of return.
The respondents' answer to those allegations is limited. They state that they have
no knowledge of the allegations and therefore cannot admit or deny them. They do
not advance a positive contrary version.
15. It is not necessary to find that every factual allegation now contained in the founding
affidavit was before the SCRA in precisely that form. The point is narrower. The
material before the SCRA, including the original refugee record, the s 27(c)
application and the later representations, raised broader issues than the single
proposition that MLC rebels had formerly captured persons. Those issues required
proper consideration under the second part of s 5(1 )(e).
16. The reasons and the answering affidavit do not demonstrate that such
consideration occurred. They show awareness of some later material, but not a
reasoned assessment of whether that material, whether viewed under s 3(a), s
3(b), s 5(2) ors 2, justified continued recognition. The reasons instead return to the
narrower conclusion that the original MLC-related circumstances had ceased.
THE CASE LAW
17. The authorities support this conclusion. In FNM v Refugee Appeal Board and
Others 2019 (1) SA 468 (GP), the Court emphasised that refugee decision-making
is not a narrow adversarial exercise. Even terse material may require further
enquiry, and the decision-maker must consider whether the information before it
engages s 3(a), s 3(b), or both.
18. In Somali Association of South Africa and Others v Refugee Appeal Board and
Others 2022 (3) SA 166 (SCA), the Supreme Court of Appeal confirmed the
inquisitorial and facilitative nature of refugee decision-making. The decision-maker
must assist in obtaining as full a picture as the circumstances permit and must not
approach the statutory grounds too narrowly.
19. Mubala v Chairperson of the Standing Committee for Refugee Affairs 2014 JDR
1205 (WCC) confirms that later-arising circumstances may be relevant to continued
protection and that non-refoulement remains central where return may expose the
person to harm.
20. Those cases do not mean that the applicant's assertions had to be accepted. They
mean that the SCRA had to consider the full statutory enquiry and, where the
material was terse but potentially material, to approach the enquiry with the care
required in refugee matters. The SCRA did not do so.
REVIEWABILITY
21. I find that the SCRA materially misdirected itself. It considered the first leg of s
5(1 )(e), namely whether the original circumstances had ceased to exist. It did not
properly consider the second leg, namely whether other circumstances had arisen
which justified continued recognition as a refugee.
22. That error was material. Section 5(1 )(e) does not permit withdrawal merely because
the original basis for recognition has fallen away. It also requires a finding, properly
reached, that no other circumstances justify continued recognition.
23. The respondents' heads of argument assert that all relevant considerations were
taken into account. But heads of argument cannot cure what is absent from the
reasons provided and the answering affidavit. The court must assess the decision
on the basis disclosed in the record and the affidavits, not on the basis of a broader
formulation later advanced in argument.
24. The withdrawal decision must therefore be reviewed and set aside.
25. The refusal of certification under s 27(c) is not a separate self-standing decision
unaffected by the flawed withdrawal reasoning. On the respondents' own version,
the s 27(c) application was considered together with the question whether the
applicant had ceased to qualify as a refugee. The SCRA reasoned that because
the original circumstances had ceased to exist, the applicant could not be certified
as a refugee indefinitely and his refugee status should instead be withdrawn.
26. The refusal of certification therefore depended on the same cessation enquiry
under s 5(1 )(e). Once that enquiry was materially defective because the SCRA
failed properly to consider whether other circumstances justified continued
recognition, the refusal of certification is also tainted. The court cannot uphold the
refusal of certification while setting aside the withdrawal decision, because both
outcomes rest on the same incomplete application of s 5(1 )(e). The certification
decision must accordingly also be reviewed and set aside.
REMEDY
27. The applicant seeks substitution. He submits that the outcome is a foregone
conclusion and that the court has sufficient material, including country information,
to grant final relief.
28. Substitution is competent in appropriate cases, but it remains exceptional. The
relevant considerations include whether the court is in as good a position as the
administrator, whether the outcome is a foregone conclusion, and whether
substitution would be just and equitable. That is the approach reflected in FNM and
in the Constitutional Court's decision in Trencon Construction (Pty) Ltd v Industrial
Development Corporation of South Africa Ltd 2015 (5) SA 245 (CC).
29. This is a strong review case. But I am not persuaded that certification is the only
lawful outcome. The SCRA has not yet undertaken the full enquiry required by s
5(1 )(e). A proper reconsideration will require assessment of the applicant's
personal circumstances, the relevance of his alleged political associations and
family history, the current country information, and whether those matters justify
continued recognition or certification. Those are matters within the statutory
competence of the refugee authority.
30. Remittal is competent. The respondents' reliance on functus officio does not
establish the contrary. There is a distinction between an administrator reopening
its own decision and a court setting aside an unlawful decision and remitting the
matter for reconsideration. Somali Association is instructive in this regard: after the
2020 amendments had come into force, the Supreme Court of Appeal nevertheless
remitted refugee matters to the competent authority under the amended framework.
The later legislative scheme therefore does not bar court-ordered remittal.
31. The appropriate remedy is review and remittal, with directions designed to ensure
that the same error is not repeated. The applicant must be afforded a reasonable
opportunity to supplement his representations and to respond to adverse material
upon which the competent authority intends to rely. The time for a fresh decision
should run from receipt of the applicant's final representations, so that procedural
fairness is preserved without an open-ended extension mechanism.
32. The applicant has been substantially successful and therefore costs should follow
the result.
ORDER
33. The following order is made:
33.1 The decision withdrawing the applicant's refugee status is reviewed and set
aside.
33.2 The decision refusing the applicant's application for certification in terms of s
27(c) of the Refugees Act 130 of 1998 is reviewed and set aside.
33.3 The matter is remitted to the competent refugee authority for reconsideration.
33.4 Before making a fresh decision, the competent authority must afford the
applicant a reasonable opportunity to make supplementary written
representations, to place updated relevant material before it, and to respond to
any adverse material upon which the competent authority intends to rely.
33.5 A fresh decision, with written reasons, must be furnished within 90 days after
receipt of the applicant's final representations.
33.6 Pending the fresh decision, the applicant may remain in the Republic of South
Africa and may continue to work on the same terms as applied before the
impugned withdrawal decision.
33.7 The respondents are ordered to pay the applicant's costs on scale B, jointly
and severally, the one paying the others to be absolved.
Appea ranees:
Counsel for the Applicant
Instructed by:
Counsel for the Respondent
Instructed by:
Date heard:
Date of Judgment:
23 April 2026
29 April 2026
C DE VILLIERS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION , PRETORIA
Adv L Pretorius
Kennedy Gihana & Associates
Adv D Senyatsi
The State Attorney, Pretoria