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[2018] ZACC 9
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Saidi and Others v Minister of Home Affairs and Others (CCT107/17) [2018] ZACC 9; 2018 (7) BCLR 856 (CC); 2018 (4) SA 333 (CC) (24 April 2018)
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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 107/17
In the matter
between:
CISHAHAYO SAIDI
AND 28 OTHERS
First to Twenty-Ninth Applicants
and
MINISTER OF HOME
AFFAIRS
First Respondent
DIRECTOR GENERAL,
DEPARTMENT OF HOME
AFFAIRS
Second Respondent
MANAGER, CAPE TOWN
REFUGEE FACILITY
Third Respondent
Neutral citation:
Saidi and Others v Minister of Home Affairs and
Others
[2018] ZACC 9
Coram:
Zondo ACJ, Cameron J, Froneman J,
Jafta J, Kathree Setiloane AJ, Kollapen AJ,
Madlanga J,
Mhlantla J, Theron J and Zondi AJ
Judgments:
Madlanga J (majority): [1] to [48]
Jafta J (dissenting): [49] to [87]
Heard on:
21 November 2017
Decided on:
24 April 2018
ORDER
On appeal and cross-appeal
from the Supreme Court of Appeal (hearing an appeal and cross-appeal
from the High Court of South Africa,
Western Cape Division,
Cape Town), the following order is made:
1.
Leave to appeal and cross-appeal is granted.
2.
The appeal is upheld.
3.
The cross-appeal is dismissed.
4.
The orders of the Supreme Court of Appeal and High Court are set
aside and substituted
with the following:
“It is
declared as follows:
(a)
A Refugee Reception Officer does have the
power to extend the permit
provided for in section 22(1) of the Refugees Act 130 of 1998
(permit) pending finalisation of proceedings
for the judicial review,
in terms of the
Promotion of Administrative Justice Act 3 of 2000
, of
a decision made in terms of the
Refugees Act refusing
an application
for asylum made in terms of
section 21(1)
of the
Refugees Act.
(b
)
Pending finalisation of the review proceedings referred
to in (a), a
Refugee Reception Officer is obliged to issue or extend the permit of
the asylum seeker concerned.
(c)
The permit must be issued or extended in
accordance with the
provisions of the
Refugees Act and
Regulations made in terms of
section 38
of that Act.”
5.
The respondents must pay the applicants’ costs, including the
costs of
two counsel, in this Court, the Supreme Court of Appeal and
High Court.
JUDGMENT
MADLANGA J
(Zondo ACJ, Cameron J, Froneman J,
Kathree Setiloane AJ, Mhlantla J, Theron J,
and
Zondi AJ
concurring):
[1]
Does a Refugee Reception Officer
[1]
(RRO) have the power to extend a temporary asylum permit pending the
outcome of a review – in terms of the
Promotion of Administrative Justice Act
[2]
(PAJA) – of a decision of a
Refugee Status Determination Officer
[3]
(RSDO) rejecting an application for asylum, including the PAJA review
of decisions on internal reviews and appeals
? That is
the principal question that must be answered in this matter.
Background
[2]
The applicants whom I will also
refer to as asylum seekers are foreign nationals seeking refugee
status in South Africa. They
lodged applications for refugee
status with the Cape Town RRO. Pursuant to the
provisions of
section 22(1)
of the
Refugees Act, they
each
received an asylum seeker permit. This is a temporary permit
that entitles an asylum seeker to lawfully reside in the
Republic for
the duration of the application process. It took a while for
the asylum seekers’ applications to be finalised.
As a
result, their temporary permits – which had each been
issued for a specific period – expired
and the
applicants sought and obtained extensions
[4]
from the RRO a few times as they awaited the
outcome of their applications.
[3]
All the applications were rejected
by the RSDO in terms of
section 24(3)
of the
Refugees Act.
Subsequent
internal reviews or internal appeals respectively
lodged in terms of
sections 25
and
26
of the
Refugees Act
were
unsuccessful. The asylum seekers instituted review
proceedings in terms of PAJA challenging the rejection of their
applications.
[4]
A practice had developed in terms of
which – upon being furnished with documentation showing that an
unsuccessful asylum seeker
had lodged a PAJA review – the
Cape Town RRO extended the temporary permit automatically. This
practice was
instituted to avoid the launching of urgent applications
for interim relief in the High Court, the object of which would
be
to retain the status quo pending judicial review. The
practice also averted incurring legal costs unnecessarily.
After
an acting manager of the Cape Town Refugee Facility had assumed
duties, she did away with this practice. This was before the
applicants lodged their PAJA reviews. She refused to extend any
of the applicants’ permits. She took the view
that, after
the exhaustion of internal remedies, an RRO had no power to extend a
temporary permit and that the permit could only
be extended by means
of a High Court order. Incidentally, her predecessor had,
in so many words, assured the applicants’
attorneys that the
applicants’ permits would be extended pending judicial review.
[5]
The applicants brought an urgent
High Court application against a number of respondents.
[5]
Of those, only the Minister of Home Affairs, the
Director-General, Department of Home Affairs
and the
Acting Manager, Cape Town Refugee Facility participated in the
application before us. The applicants were asking
that the
Acting Manager be compelled to renew their permits until
finalisation of the PAJA review. The matter was argued
on the
basis that the Acting Manager was the RRO. The respondents
resisted the application on the basis that the RRO lacks
the power to
extend after internal remedies have been exhausted. The
High Court held that
section 22(3)
of the
Refugees Act does
empower an RRO to extend a permit pending judicial review. However,
the extension was not automatic, but subject to the exercise
of
discretion by the RRO.
[6]
It further held that – because of
her view on the legal position – the RRO had not
exercised her
discretion and that, therefore, the question of the
extensions had to be left for decision by her. It remitted the
matter
to her to decide whether to extend the applicants’
permits.
[6]
The respondents appealed to
the Supreme Court of Appeal, persisting in the
argument that the RRO lacked power
to extend temporary permits
pending judicial review. The applicants cross-appealed against
the remittal contending that – once
judicial review
proceedings have been lodged – extensions are
automatic and that, therefore, the High Court ought
to have compelled
the RRO to extend the permits. The Supreme Court of Appeal
largely upheld the High Court’s
approach.
[7]
The applicants now seek leave to
appeal from us. And the respondents are seeking leave to
cross-appeal. Before dealing
with the principal issue
identified at the beginning, I will first consider the questions of
jurisdiction and leave to appeal.
Jurisdiction and leave
to appeal
[8]
The applications for leave to appeal
and cross-appeal relate to the same issues. What I discuss
applies to both.
[9]
This matter concerns the
interpretation of part of the
Refugees Act. As
will soon
become apparent, this point of law is arguable.
[7]
In addition, it is manifestly of general public importance.
[8]
Also, a few constitutional rights are implicated, namely the right of
access to court, the right to just administrative action,
the right
to life, and the right to freedom and security of the person.
We have jurisdiction.
[10]
The issues raised by the application
are novel and of great import. There are reasonable prospects
of success. It is
thus in the interests of justice that leave
be granted.
[11]
I now proceed to deal with the
principal issue. I will do so under the following two headings:
(a)
Is there a power to extend a permit pending
judicial review?
(b)
If there is, is the renewal automatic or, must
the RRO exercise a
discretion whether to extend?
Power to extend pending
judicial review
[12]
Section 22(1)
of the
Refugees Act
reads
:
“
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
.
”
[9]
[13]
Temporary permits issued in terms of
this section are critical for asylum seekers. They do not only
afford asylum seekers
the right to sojourn in the Republic lawfully
and protect them from deportation but also entitle them to seek
employment and access
educational and health care facilities
lawfully.
[14]
It seems to me that, on a proper
interpretation of the section, the permit may be issued once and
remain valid until the outcome
of the application. That is so
because section 22(1) authorises the issuing of a permit pending
the outcome of an application
for refugee status in terms of
section 21(1). But section 22(3) does envisage the
issuing of permits for specified
periods extendable
periodically.
[10]
Regulation 7(1)(b) of the Regulations made under
section 38
of
the
Refugees Act, unlike
this section which appears to be permissive,
requires that temporary permits be issued for specified periods
extendable repeatedly
until the applications have been decided.
[11]
[15]
It is not in dispute that RROs issue
permits for periods of three to six months. Each time the
asylum seeker must attend the
Refugee Reception Office to
have the permit renewed before it expires. In practice, asylum
seekers are required
to attend on the date of expiry. It is on
these visits that decisions on the status of applications for refugee
status are
communicated.
[16]
Section 22(3)
deals with permit
extensions and provides:
“
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 parties are in
agreement that subsections (1) and (3) of
section 22
must be read together with the effect that the word “may”
in
section 22(3)
does not grant the RRO any discretion over the
issuing of permits. They interpret “may” to grant
the RRO the
power to extend permits, coupled with an obligation to
exercise it; that is an obligation to extend the permit pending the
outcome
of an application for refugee status.
[17]
In some instances this Court has
adopted this approach in interpreting “may”. At
issue in
Van Rooyen
[12]
was the meaning of “may” in
section 13(3)(
a
A)
of the Magistrates Act.
[13]
The question was whether – since the section provided
that the Minister of Justice “may”
confirm a
recommendation by the Magistrates Commission that a magistrate
be suspended – the Minister could
exercise a
discretion not to suspend the magistrate. Answering the
question in the negative, Chaskalson CJ held:
“
As
far as the Act is concerned, if ‘may’ in
section 13(3)(
a
A)
is read as conferring a power on the Minister coupled with a duty to
use it, this would require the Minister to refer the Commission’s
recommendation to Parliament, and deny him any discretion not to do
so.
. . .
In my view this is
the constitutional construction to be given to section 13(3)(
a
A).
On this construction, the procedure prescribed by section 13(3)
of the Act for the removal of a magistrate from office
is not
inconsistent with judicial independence.”
[14]
[18]
Based on this, I agree with the
parties’ interpretation. This interpretation better
affords an asylum seeker constitutional
protection whilst awaiting
the outcome of her or his application. She or he is not exposed
to the possibility of undue disruption
of a life of human dignity.
That is, a life of: enjoyment of employment opportunities; having
access to health, educational
and other facilities; being protected
from deportation and thus from a possible violation of her or his
right to freedom and security
of the person; and communing in
ordinary human intercourse without undue state interference.
[19]
Where the parties differ is in the
interpretation of “outcome” in section 22(1).
To recapitulate, in terms
of section 22(1) an RRO “
must,
pending the outcome of an application in terms of section 21(1),
issue to the applicant an asylum seeker permit
. . .
allowing
the applicant to sojourn in the Republic temporarily”.
The operative word is “outcome”. Is
this a
reference only to an outcome in terms of the process provided for in
the
Refugees Act, including
internal reviews and internal appeals?
Or, does “outcome” also include the final outcome
of judicial review?
As indicated, the respondents contend for
the first interpretation. The applicants press for the latter.
[20]
The applicants submit that the
natural reading of “outcome of an application” is the
final determination; meaning there
is no longer an opportunity to
reach a different decision. A PAJA review is intended to alter
the outcome reached administratively
in terms of the
Refugees Act.
There
can be no final determination of an application until the end
of a judicial review process. The applicants conclude by
arguing
that “outcome” in
section 22(1)
must,
therefore, include PAJA review.
[21]
This is plausible.
[22]
The respondents contend that the
“application” referred to in that part of
section 22(1)
that says “pending the outcome of an application in terms of
section 21(1)
” is the application for refugee status made
to an RRO. “Outcome” is the final internal
administrative outcome
in terms of the
Refugees Act. The
respondents then summarise the process leading to this outcome.
It is: the lodgement of an application with the RRO in terms
of
section 21(1)
; a decision by the RSDO in terms of
section 24(3)
;
a review by a Standing Committee in terms of
section 25
; and an
appeal to an Appeal Board in terms of
section 26.
[23]
The respondents contend that the
application referred to in
section 21(1)
is not an application
for judicial review. An application for judicial review is made
in terms of PAJA pursuant to the provisions
of section 33 of the
Constitution. The Constitution and PAJA afford an applicant a
right extraneous to the
Refugees Act. Therefore
, a PAJA
review cannot be said to be “an application in terms of
section 21(1)
”. Likewise, the outcome of a PAJA
review cannot be said to be the outcome of an application in terms of
section 21(1).
[24]
The respondents also place reliance
on the provisions of
section 21(4)
of the
Refugees Act.
This
section provides:
“Notwithstanding
any law to the contrary, no proceedings may be instituted or
continued against any person in respect of his
or her unlawful entry
into or presence within the Republic if—
(a)
such person has applied for asylum in terms of subsection (1), until
a decision has
been made on the application and, where applicable,
such person has had an opportunity to exhaust his or her rights of
review or
appeal in terms of Chapter 4; or
(b)
such person has been granted asylum.”
[25]
The respondents argue that the words “rights of review
or appeal in terms of Chapter 4” are a clear reference to
internal reviews and appeals as it is these internal processes that
are pursued in terms of Chapter 4, and not PAJA reviews. The
argument continues: the import of the section is that, once internal
reviews and appeals have been exhausted and an applicant has
not
succeeded, an asylum seeker may be prosecuted for unlawful entry; and
it does not make sense for the
Refugees Act to
allow for this
but simultaneously require that a permit be extended beyond this
point. Without doubt, this is so potent an
argument that it has
the effect of making the respondents’ interpretation also
plausible.
[26]
What then does “outcome” mean?
What must carry the day is a
meaning that better accords with
the purposes of the
Refugees Act
[15
]
and is more consonant with the constitutional rights of asylum
seekers.
[16]
[27]
This Court has repeatedly emphasised
that courts must adopt a purposive reading of statutory
provisions.
[17]
One of the purposes
of the
Refugees Act is
to “give effect within the Republic of South Africa to the
relevant international legal instruments, principles and
standards
relating to refugees”.
[18]
At the heart of international refugee law is the principle of
non refoulement
(non-return). This is not about non-return for the sake of it;
it is about not returning asylum seekers to the very
ills – recognised
as bases for seeking asylum
[19]
– that were the reason for their escape from their countries of
origin. This principle is captured in
section 2
of the
Refugees Act, which
provides:
“
Notwithstanding
any provision of this Act or any other law to the contrary
,
no person may be refused entry into the Republic, expelled,
extradited or returned to any other country or be subject to any
similar measure, if as a result of such refusal, expulsion,
extradition, return or other measure, such person is compelled to
return
to or remain in a country where—
(a) he or she may be
subjected to persecution on account of his or her race, religion,
nationality, political opinion or membership of a particular social
group; or
(b) his or her life,
physical safety or freedom would be threatened on account of external
aggression, occupation, foreign domination or other events seriously
disturbing or disrupting public order in either part or the
whole of
that country.” (Emphasis added.)
[28]
Of importance, all other provisions
of the
Refugees Act are
subordinated to those of
section 2.
That means
section 2
takes precedence over
section 21(4).
[29]
The paramount importance of
protecting genuine refugees from expulsion is highlighted in the
introduction of the Refugee Convention,
which says:
“
The
principle of
non-refoulement
is
so fundamental that no reservations or derogations may be made to
it. It provides that no one shall expel or return (“
refouler
”)
a refugee against his or her will,
in
any manner whatsoever
, to a territory
where he or she fears threats to life or freedom.”
[20]
(Emphasis added.)
This
Convention has particular significance.
Section 6(1)(a)
of
the
Refugees Act provides
that “[t]his Act must be
interpreted and applied with due regard to . . . the
Convention Relating to the Status of Refugees”.
[30]
The respondents’
interpretation exposes asylum seekers to the real risk of
refoulement
in the interim whilst the outcome of judicial review is pending.
Without a temporary permit, there is no protection.
This runs
counter the very principle of
non refoulement
and the provisions of
section 2
of the
Refugees Act. It
is cold
comfort to say – between the exhaustion of internal
remedies and the outcome of judicial review – an
asylum seeker may seek and obtain interim protection by means of an
urgent application to court. Litigation being what it
is, there
is no guarantee that the approach to court will succeed; the urgent
application may be dismissed on a technicality or
any other legally
cognisable basis. That would then expose the asylum seeker to
the risk of return. What then of the
notion of
non-refoulement
against one’s will “in any manner whatsoever”?
South Africa may be saying it is not opposed to its administrative
refusal of an asylum seeker’s application being challenged by
way of judicial review. But it will be making it possible
for
refoulement
to take place in the interim. That is a breach of the principle
of
non-refoulement
.
[31]
What must we make of the
respondents’
section 21(4)
argument? Crucially, the
applicants’ interpretation accords with international law.
Section 233 of the Constitution
provides:
“
When
interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent with
international law over any alternative interpretation that is
inconsistent with international law.”
[32]
In a separate concurrence to a unanimous judgment of the
European Court of Human Rights in
Hirsi Jamaa
Judge Pinto de Albuquerque emphasises the fact that
non-refoulement
is a principle of international law. He
says:
“[T]he
prohibition of
refoulement
is a principle of customary
international law
, binding on all States, even those not parties
to the United Nations Convention relating to the Status of Refugees
or any other
treaty for the protection of refugees. In
addition, it is a rule of
jus cogens
, on account of the fact
that no derogation is permitted and of its peremptory nature, since
no reservations to it are admitted.”
[21]
(Emphasis added.)
[33]
He also says:
“When there
is a risk of serious harm as a result of foreign aggression, internal
armed conflict, extrajudicial death, forced
disappearance, death
penalty, torture, inhuman or degrading treatment, forced labour,
trafficking in human beings, persecution,
or trial based on a
retroactive penal law or on evidence gathered by torture or inhuman
and degrading treatment in the receiving
State, the obligation of
non-refoulement
is an absolute obligation of all States.”
[22]
[34]
The respondents’ interpretation exposes an asylum seeker
whose application has been administratively turned down, but who is
desirous of seeking, or has launched, a judicial review, to all the
risks set out in the preceding quote. That, when a judicial
review may eventually establish that the asylum seeker was, in fact,
entitled to be recognised as a refugee. This is absurd,
especially in the light of another point made by
Judge Pinto de Albuquerque that “[a] person does
not become
a refugee because of recognition, but is recognised
because he or she is a refugee”.
[23]
[35]
To illustrate a little more on the absurdity,
an
asylum seeker would be immune from prosecution while pursuing an
internal appeal or review. This immunity would end as
soon as
this internal process is finalised. She or he would not have
immunity pending a PAJA review. However, upon
completion of the
PAJA review, with the court deciding that the applicant ought to have
been granted asylum, the immunity would
kick in again. An
unfortunate, ominous game of “ping pong”. As
indicated, according to the respondents,
to avoid arrest during the
intervening period an asylum seeker must apply to court for interim
relief pending judicial review.
Experience has shown that, for
any number of reasons, some time may elapse between the date of the
administrative decision and
taking it to court for judicial review.
During that intervening period an asylum seeker would be at risk.
[36]
This Court has noted on numerous occasions that text is
not everything.
[24]
Unless there is no other tenable meaning, words in a statute are not
given their ordinary grammatical meaning if, to do so,
would lead to
absurdity.
[25]
Here there is another tenable meaning.
[37]
With all this in mind, only one
thing commends the respondents’ section 21(4) argument.
It accords with a textual
reading of the section, something I have
concluded does not assist the respondents. It is at odds with
international law
imperatives. It seems to me then that,
despite the provisions of section 21(4), the principle of
non refoulement
has an overarching effect that, at the very least, endures until
judicial review proceedings have been finalised or it has become
plain that none will be instituted.
[26]
With that overarching prohibition on
refoulement
,
it must follow that there is a continued entitlement to a temporary
permit which, not only “
allow[s]
the applicant to sojourn in the Republic temporarily”,
[27]
but is documentary proof to state officials that
this is the position. That, in turn, must mean the RRO does
have the power
to issue this permit pending finalisation of a
judicial review.
[38]
To the extent that it may still be
necessary to say more on this, in line with the injunction in section
39(2) of the Constitution,
we must interpret “outcome” in
a manner that better protects rights in the Bill of Rights. In
Makate
Jafta J elucidates this thus:
“
If
the provision is not only capable of a construction that avoids
limiting rights in the Bill of Rights but also bears a meaning
that
promotes those rights, the court is obliged to prefer the latter
meaning. For, as this Court observed in
Fraser
:
‘Section 39(2) requires more from
a court than to avoid an interpretation that conflicts with the Bill
of Rights. It
demands the promotion of the spirit, purport and
objects of the Bill of Rights.’”
[28]
[39]
Sachs J cautions in
SAPS
:
“
Interpreting
statutes within the context of the Constitution will not require the
distortion of language so as to extract meaning
beyond that which the
words can reasonably bear. It does, however, require that the
language used be interpreted as far as
possible, and without undue
strain, so as to favour compliance with the Constitution.”
[29]
[40]
Constitutional rights that may
potentially be infringed if the respondents’ interpretation
were to be upheld include, in the
first place, the right to life, the
right to human dignity, the right to freedom and security of the
person, the right of access
to courts and the right to just
administrative action. The right of access to court could be
infringed if – out
of fear of deportation – an
asylum seeker were to go into hiding and not prosecute a judicial
review. This
would, in turn, deny her or him an opportunity to
exercise the right to just administrative action. The denial of
these rights
is equally true even where the asylum seeker does not go
into hiding, but gets deported. It might not be practical to
institute
and prosecute review proceedings from outside the
Republic. Most gravely, asylum seekers may be returned to a
situation where
they face persecution, often in the form of physical
violence and death in violation of the right to freedom and security
of the
person
[30]
and the right to life.
[31]
[41]
Needless to say, the applicants’
interpretation promotes the implicated rights contained in the Bill
of Rights which I have
just discussed. The respondents’
imperils the enjoyment of those rights.
Is the renewal subject
to an exercise of discretion?
[42]
What I have held above relative to
the existence of the power to renew pending judicial review does not
leave much room for the
exercise of a discretion before renewal.
In particular, the imperatives of the principle of
non-refoulement
dictate that, until judicial review proceedings have been finalised,
there must be a permit in place. Denying an RRO a discretion
which she or he does not have before finalisation of the internal
application process does not place the state in a disadvantageous
position. To the extent that, for whatever legally acceptable
reason, an asylum seeker should not have a permit, there may
be a
withdrawal by the Minister in terms of
section 22(6)
of the
Refugees Act.
[43
]
If I must say more, here are additional reasons why the RRO
has to extend automatically.
Section 22(6)
carefully
circumscribes the bases on which the Minister may cancel an existing
permit. On the other hand, nothing in the
Refugees Act
delineates
the circumstances under which an RRO may exercise a
discretion not to renew. In my view, if the RRO did have a
discretion
under
section 22(3)
, in some respects its exercise would
be similar in effect to a cancellation by the Minister under
section 22(6).
Here is why. In terms of
section
22(1)
an asylum seeker is entitled to a permit until the outcome of
her or his application. A refusal to extend pursuant to the
exercise of discretion would have the effect of bringing that
entitlement to an end before the outcome of the application for
asylum. In some respects (for example, where the Minister
cancels in terms of
section 22(6)(a)
before finalisation of the
application for asylum on the basis that the asylum seeker has
contravened the conditions endorsed on
the permit), a cancellation by
the Minister has a similar effect. Here is a problem that I
have. As I have said, in
the case of the Minister,
section
22(6)
clearly specifies the circumstances under which the Minister
may effect cancellation. The RRO, on the other hand, is given
carte blanche
, the discretion presumably bounded only by
legality and the obligation not to be found to have flouted the
review grounds set out
in
section 6
of PAJA. That to me
seems odd; why would the Minister’s discretion be
circumscribed, and the RRO’s not? If
anything, I would
have expected the situation to be the reverse. To me, this is a
pointer that – pending
finalisation of judicial
review – the RRO must extend a permit automatically.
[44]
Also, if the RRO can refuse to extend based on similar grounds
as those specified in
section 22(6)
in respect of the Minister,
the question arises as to why the
Refugees Act would
confer
similar powers on more than one functionary.
Conclusion
[45]
In conclusion, the appeal must
succeed with costs.
[46]
I do not propose making a specific
order for the issuing of extensions of the applicants’
temporary permits. Instead,
I propose making declaratory orders
in accordance with what I have held. It is left to the
applicants to again approach the
RRO and for the RRO to act in
accordance with this judgment and the declaratory orders.
Condonation
[47]
The applicants have applied for
condonation of the late filing of their affidavit in answer to the
Minister’s cross-appeal.
The applicants’ attorneys
explain that they were alerted to the fact that this affidavit was
not part of the record lodged
with this Court by the respondents’
attorneys. They say they have no idea how this came about, as
that affidavit had
previously been filed at Court. The
respondents accept that this mishap did not cause them any prejudice.
It is in
the interests of justice that condonation be granted,
and it is granted.
Order
[48]
The following order is made:
1.
Leave to appeal and cross-appeal is granted.
2.
The appeal is upheld.
3.
The cross-appeal is dismissed.
4.
The orders of the Supreme Court of Appeal and High Court are set
aside and substituted
with the following:
“It is
declared as follows:
(a)
A Refugee Reception Officer does have the
power to extend the permit
provided for in section 22(1) of the Refugees Act 130 of 1998
(permit) pending finalisation of proceedings
for the judicial review,
in terms of the
Promotion of Administrative Justice Act 3 of 2000
, of
a decision made in terms of the
Refugees Act refusing
an application
for asylum made in terms of
section 21(1)
of the
Refugees Act.
(b
)
Pending finalisation of the review proceedings referred
to in (a), a
Refugee Reception Officer is obliged to issue or extend the permit of
the asylum seeker concerned.
(c)
The permit must be issued or extended in
accordance with the
provisions of the
Refugees Act and
Regulations made in terms of
section 38
of that Act.”
5.
The respondents must pay the applicants’ costs, including the
costs of
two counsel, in this Court, the Supreme Court of Appeal and
High Court.
JAFTA J
(Kollapen AJ concurring):
[49]
I have had the benefit of reading the judgment prepared by my
colleague Madlanga J (first judgment). While I agree with
much of what it contains, I am unable to embrace its interpretation
of
section 22(3)
of the
Refugees Act. Consequently
, I cannot
support paragraph 4(b) of the proposed order.
[50]
I agree with the High Court and the Supreme Court of Appeal
that the relevant provision vests a Refugee Reception Officer (RRO)
with a discretionary power to extend a temporary asylum permit, from
time to time.
[32]
On this point the Supreme Court of Appeal held—
“In my view,
however, the present use of the word ‘may’ in
section
22(3)
falls into the category of a true discretion rather than the
conferring of a power coupled with a duty to use it in a certain
way.
As I have said, it may be that factors such as criminal
activity on the part of an asylum seeker have been established. In
such circumstances, the RRO would not be obliged to extend the permit
at all. The discretion whether to extend is accompanied
by a
discretion as to the date to which it is to be extended and the
discretion whether to amend the conditions of the permit.
All
three are clearly beyond any power coupled with a duty.”
[33]
[51]
This conclusion was reached after
consideration of decisions of this Court in
SAPS
[34]
and
Van Rooyen
.
[35]
[52]
The first judgment holds that the
relevant provision does not confer a discretion because it grants
power coupled with an obligation
to exercise it. Reliance is
placed on
Van Rooyen
where it was stated:
“As far as
the Act is concerned, if ‘may’ in section 13(3)(
a
A)
is read as conferring a power on the Minister coupled with a duty to
use it, this would require the Minister to refer the Commission’s
recommendation to Parliament, and deny him any discretion not to do
so. In that event the reference in section 13(3)(c) to
a report
on the reasons for the suspension would be construed as referring to
the Commission’s reasons for its decision.”
[36]
[53]
This statement must be read in its proper context which is
section 13(3) of the Magistrates Act.
[37]
The nature of the power conferred by a particular statutory provision
may be determined with reference to the language of
the provision.
It is the context within which words are used which sheds light on
their meaning. The fact that a particular
word is given a
specific meaning in one statute does not mean that the word must
carry the same interpretation in every statute.
The meaning to
be ascribed to it depends on the sense in which the word was used.
This is the context in which
Van Rooyen
must be
understood.
[54]
Section 13, with which this Court was concerned in
Van
Rooyen
, provided:
“(3)
(a) The Commission may
provisionally suspend
a magistrate from office pending an
investigation by the Commission into such magistrates fitness to hold
office.
(
a
A) The Minister may confirm such
suspension if the Commission recommends that such magistrate be
removed
from office—
(i) on the ground of
misconduct;
(ii) on account of
continued ill-health; or
(iii) on account of incapacity to
carry out the duties of his or her office efficiently.
(b) A magistrate so
suspended from office shall receive, for the duration of such
suspension,
no salary or such salary as may be determined by the
Minister on the recommendation of the Commission.
(c) A report in which the
suspension in terms of paragraph (
a
A) of a magistrate and the
reason therefor are made known, shall be tabled in Parliament by the
Minister within 14 days of such
suspension, if Parliament is then in
session, or, if Parliament is not then in session, within 14 days
after the commencement of
its next ensuing session.
(d) Parliament shall,
within 30 days after the report referred to in paragraph (c) has
been
tabled in Parliament, or as soon thereafter as is reasonably
possible, pass a resolution as to whether or not the restoration
to
his or her office of a magistrate so suspended is recommended.
(e) After a resolution has
been passed by Parliament as contemplated in paragraph (d),
the
Minister shall restore the magistrate concerned to his or her office
or remove him or her from office, as the case may be.
(4) The Minister shall remove a
magistrate from his or her office if Parliament passes a resolution
recommending such removal on the ground of misconduct of the
magistrate or on account of his or her continued ill-health or his
or
her incapacity to carry out his or her duties of office efficiently.”
[55]
What emerges from a consideration of the language of section
13 is that the suspension of a magistrate from office is initiated by
the Commission, which may provisionally suspend him or her pending an
investigation into his or her fitness to hold office.
If the
Commission, upon conclusion of the investigation, recommends that the
magistrate concerned should be removed from office,
the Minister of
Justice may confirm the suspension which shall continue to operate
pending the decision by Parliament. In
terms of section
13(3)(c), a report and reasons for the Commission’s decision to
suspend must be tabled before Parliament
within 14 days from the date
of suspension. Parliament must, within 30 days from the date of
tabling, pass a resolution to
reinstate or remove the magistrate from
office. The Minister must implement the resolution taken by
Parliament by removing
or reinstating the magistrate from office, as
the case may be.
[56]
It was against this scheme that this Court had to determine
whether the words “the Minister may confirm such suspension”
conferred on the Minister a discretion to confirm or not to confirm.
With reference to section 13(3)(a), the Court concluded
that the
provision conferred power with an accompanying obligation to exercise
it. The Court held, in the statement quoted
in paragraph 52
above, that the Minister was granted the power to confirm a
suspension which was conferred with a duty to table
a report on the
suspension before Parliament. In the circumstances, the
discretion not to confirm and not to table would
have been
inconsistent with the clear language of section 13(3)(c) and
would have deprived Parliament of the exercise of its
powers to
determine whether the suspension must be lifted or that the
magistrate should be removed from office.
[57]
The question whether the RRO here is obliged to rubber stamp
every application for an extension depends on the language of
section
22
of the
Refugees Act. But
before I examine this language, it
is necessary to outline the relevant scheme.
[58]
Officials in the Department of Home Affairs are obliged to
permit entry into this country of any foreign national who desires to
seek asylum.
[38]
Once an application for asylum is made, the RRO must issue a permit
to the applicant which authorises him or her to remain
in South
Africa temporarily.
[39]
Although such permit is issued for a limited period, it ought to
endure until the application for asylum is finalised.
The
Standing Committee may impose conditions on which the permit is
issued. These conditions must be endorsed on the
permit by the
RRO.
[40]
Since the permit is issued for a fixed period of time, its duration
may terminate before the application for asylum is determined.
The RRO is empowered to extend the currency of the permit from time
to time. And if the permit was subject to conditions,
the RRO
is authorised to amend them where necessary.
[41]
The Minister may withdraw a temporary permit at any time under
certain specified conditions.
[42]
[59]
The application for asylum which entitles the applicant to a
temporary permit must be made in person and submitted to the RRO who
must forward it to the Refugee Status Determination Officer (RSDO)
for decision.
[43]
In determining it the RSDO must conduct a formal hearing to which the
applicant’s administrative justice rights apply.
Importantly, the RSDO must, before commencement of the hearing,
ensure that the applicant understands the rights guaranteed by
section 33 of the Constitution, the procedures to be followed at the
hearing and the applicant’s responsibilities relating
to
evidence to be produced at the hearing.
[44]
At the conclusion of such hearing, the RSDO may refer any question of
law to the Standing Committee for resolution and clarification
before
the RSDO takes a decision on the outcome of the application.
[45]
But if the RSDO is in a position to decide the matter, he or she may
grant asylum or reject it.
[46]
If the application is unfounded; manifestly unfounded; abusive or
fraudulent, the RSDO must refuse asylum.
[47]
[60]
If the applicant for asylum is unhappy with the decision of
the RSDO, he or she may appeal to the Appeal Board. However, an
appeal to the Board is limited to a decision made in terms of section
24(3)(c).
[48]
This happens where an application is rejected on the ground that it
is unfounded. If the ground for rejection is that
the
application was manifestly unfounded, abusive or fraudulent, the
RSDO’s decision goes to the Standing Committee on automatic
review.
[49]
[61]
It is now convenient to consider the relevant provisions of
section 22. It reads:
“(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.
(2) Upon the issue of a
permit in terms of subsection (1), any permit issued to the applicant
in terms of the Aliens Control Act, 1991, becomes null and void, and
must forthwith be returned to the Director-General for cancellation.
(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.
(4) The permit referred to
in subsection (1) must contain a recent photograph and the
fingerprints or other prints of the holder thereof as prescribed.
(5) A permit issued to any
person in terms of subsection (1) lapses if the holder departs
from
the Republic without the consent of the Minister.
(6) The Minister may at any
time withdraw an asylum seeker permit if—
(a)
the applicant contravenes any conditions endorsed on that permit;
or
(b) the application for
asylum has been found to be manifestly unfounded, abusive or
fraudulent; or
(c) the application for
asylum has been rejected; or
(d) the applicant is or
becomes ineligible for asylum in terms of section 4 or 5.
(7) Any person who fails to
return a permit in accordance with subsection (2), or to
comply with
any condition set out in a permit issued in terms of this section, is
guilty of an offence and liable on conviction
to a fine or to
imprisonment for a period not exceeding five years, or to both a fine
and such imprisonment.”
[62]
In order to determine whether the power vested in the RRO by
section 22(3) is discretionary, we must examine the language of
the provision which must be read in the context of the entire
section. And the provision should be assigned a meaning that
attains its purpose. Reminding us of this approach to
interpretation of statutes in
Cool Ideas
, Majiedt AJ
said:
“A
fundamental tenet of statutory interpretation is that the words in a
statute must be given their ordinary grammatical meaning,
unless to
do so would result in an absurdity. There are three important
interrelated riders to this general principle, namely:
(a) that statutory
provisions should always be interpreted purposively;
(b) the relevant statutory
provision must be properly contextualised; and
(c) all statutes must be
construed consistently with the Constitution, that is, where
reasonably possible, legislative provisions ought to be interpreted
to preserve their constitutional validity. This proviso
to the
general principle is closely related to the purposive approach
referred to in (a).”
[50]
[63]
This means that we must construe section 22(3) in a manner
that enables it to achieve its purpose. We can only do that if
we are able to identify that purpose from its language. This
subsection reads:
“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.”
[64]
A close reading of section 22(3) reveals that the provision
has two objectives. First, it enables the RRO to extend the
period
for which a permit has been issued. The power to extend
is open-ended, the RRO may exercise it on as many occasions as
necessary.
This is apparent from the phrase “from time to
time extend the period”. Implicit in this is that the
RRO, on
each occasion, must determine if any extension is necessary
and for how long it must be granted. For the RRO to do this, he
or she must apply his or her mind to the circumstances of a
particular application for extension. It is these circumstances
which will show if an extension is warranted and the period of the
extension.
[65]
If the extension were to be automatic, it would not be
necessary for the RRO to consider and apply his or her mind to the
motivation
for extension. Consequently, the period of the
extension would be artificially determined. A period of
extension so
determined would be irrational and for that reason
unconstitutional.
Cool Ideas
reminds us that where it is
reasonably possible, we should give a statutory provision a meaning
that makes it constitutionally
compliant.
[66]
The second purpose of section 22(3) is to enable the RRO to
amend the conditions imposed by the Standing Committee and which were
incorporated into the permit. For an amendment to be effected
there must be facts justifying it. The RRO must apply
his or
her mind to those facts and decide to amend only if he or she is
convinced that an amendment is warranted and determine
to what extent
the conditions have to be amended. An interpretation that says
an amendment is automatic would subvert the
purpose of imposing
conditions. It would mean that the applicant for asylum may
change a condition he or she does not like,
by simply lodging an
application for amendment and dictating how the amendment should be
effected.
[67]
An interpretation that says the RRO is obliged to extend the
duration of the permit or amend the conditions would effectively
transfer
the power to extend or amend from the RRO to the applicant.
This is because the RRO would have no option but to rubber stamp
what
is placed before him or her by the applicant. This would defeat
the purpose of attaching conditions to a permit.
Such
construction would be at odds with the principle of purposive
interpretation. The repository of the power to extend
a permit
is the RRO and for good reason. The RRO is an official who
possesses special qualifications, experience and knowledge
of refugee
matters which “makes [him or her] capable of performing these
functions.”
[51]
[68]
Our Constitution carefully divides and allocates powers to all
arms of government. Where power, as here, has been conferred
on
the executive decision makers because of their qualifications,
experience and knowledge of the subject-matter, the role
of a court
on review is limited to the interpretation of the empowering
provisions and determining whether public power has been
exercised in
accordance with the Constitution. This function must not result
in rendering the exercise of power nugatory.
The other arms of
government must be afforded space within which to exercise powers
allocated to them.
[69]
If legislation vests power in an official who holds special
qualifications, a court may not readily adopt an interpretation that
denies the official concerned of the right to exercise power in
accordance with his or her expertise. Here, Parliament in
its
wisdom has given the power to extend the duration of a permit and
amend conditions attached to a permit, to the RRO.
An
interpretation that reduces the RRO to a mere rubber stamper will be
at odds with the scheme of section 22.
[70]
It was within the authority of Parliament to identify the
repository of the power and prescribe the qualifications he or she
should
hold to exercise that power. In
Bato Star
this Court cautioned:
“[A] Court
should be careful not to attribute to itself superior wisdom in
relation to matters entrusted to other branches
of government.
A Court should thus give due weight to findings of fact and policy
decisions made by those with special expertise
and experience in the
field.”
[52]
Does “may” mean “must”?
[71]
This question may be answered with reference to the structure
and language of section 22 as a whole. But the premise from
which one departs must be the ordinary grammatical meaning as we are
told by
Cool Ideas
. In the ordinary sense “may”
does not mean “must”. Nor is it its equivalent.
This was
made plain by Corbett JA in
Shwartz
in these terms:
“A statutory
enactment conferring a power in permissive language may nevertheless
have to be construed as making it the duty
of the person or authority
in whom the power is reposed to exercise that power when the
conditions prescribed as justifying its
exercise have been satisfied.
. . . As was pointed out in [
Noble of Barbour v South
African Railways and Harbours
1922 AD 572]
, this does not involve
reading the word ‘may’ as meaning ‘must’.
As long as the English language
retains its meaning ‘may’
can never be equivalent to ‘must’. It is a question
whether the grant of
permissive power also imports an obligation in
certain circumstances to use the power.”
[53]
[72]
This statement draws a distinction between the principle that
a permissive power may at the same time impose an obligation and the
proposition that the word “may” is capable of carrying
the meaning of “must”. A permissive power
which
imposes an obligation to act does not negate the existence of a
discretion. Instead, it eliminates the option of deciding
not
to use the power. This means that if conditions for exercising
the power are met, the repository is obliged to use it.
[73]
Using the power in this sense does not imply that the
decision-maker is denied the choice of outcome. All it means is
that
he or she must reach a decision. If there is a range of
outcomes from which to choose, he or she must make the choice.
In so doing, he or she would be exercising a discretion which he or
she is under a duty to exercise. Therefore, the imposition
of
an obligation to use power does not, of itself, change the meaning of
“may” to “must”.
[74]
The principle that a power conferred in permissive terms may
impose a duty to act may neatly be applied to section 22(3). In
the context of this provision, it would mean that once an application
for the extension of a permit or amendment of conditions
is made, the
RRO is obliged to consider and make a decision, one way or the
other. The obligation to act is limited to the
determination of
the application.
[75]
Another consideration that militates against construing “may”
in section 22(3) as meaning “must”, flows from
the
structure and language of the entire section. To illustrate
this point we must quote subsections (1) and (3) of section
22.
They read:
“(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.”
[76]
It is apparent that, with regard to subsection (1),
Parliament chose to use the word “must” to signify that
the
RRO has no discretion but to issue a temporary permit, once an
application for asylum is made in terms of section 21(1) of the Act.
By contrast, subsection (3) employs the word “may” in
relation to the power granted to the RRO. This is a deliberate
change in language which underscores a different sense. There
is simply no basis for holding that the text of subsection
(3)
carries the non discretionary meaning found in subsection (1).
[77]
Moreover, the relevant principle is that a deliberate change
of words indicates that a different intention is contemplated.
In
Sisilane
Schreiner JA said:
“It is a
general rule in the construction of statutes that a deliberate change
of expression is prima facie taken to impart
a change of intention. .
. . That principle should operate particularly clearly where,
as here, Parliament was dealing with
two parts of a single provision
and cannot be supposed to have lost sight of the one when dealing
with the other.”
[54]
[78]
This principle finds application in the present matter because
the change in words occurs in one section. On its strength we
are compelled to conclude that Parliament envisaged a situation that
differed from the one in subsection (1). It will be
recalled
that this subsection imposes an obligation on the RRO to issue a
permit if the conditions for lodging an application for
asylum are
met. If Parliament wanted to place the RRO under an obligation
to extend a permit automatically it could have
used the same
language. It could not have conferred a power instead of an
obligation. To construe “may”
as meaning “must”
would have the effect of replacing the power in section 22(3)
with an obligation.
Section 39(2) of the Constitution
[79]
The question that arises in this regard is whether the
interpretation tool introduced by section 39(2) justifies an
interpretation
that says section 22(3) does not confer a discretion
but imposes an obligation to extend a permit or amend conditions,
once an
application is made. I think not. The principle
of interpreting legislation in a manner that promotes the objects of
the Bill of Rights is limited to where the language of a provision is
reasonably capable of a construction that avoids limiting
guaranteed
rights. Language deliberately chosen by Parliament may not be
distorted in order to advance guaranteed rights.
[80]
In
SAPS
this Court defined the obligation of construing
legislation consistently with section 39(2) in these terms:
“Interpreting
statutes within the context of the Constitution will not require the
distortion of language so as to extract
meaning beyond that which the
words can reasonably bear. It does, however, require that the
language used be interpreted
as far as possible, and without undue
strain, so as to favour compliance with the Constitution.”
[55]
Discretion and purpose of section
22(3)
[81]
Does the existence of a discretion alone in the context of the
section expose an asylum seeker to
refoulement
? I do not
think so. The RRO is under a duty to exercise the discretionary
power to achieve the purpose for which it
was conferred. That
power was granted to extend permits or amend conditions where there
are valid reasons to do so.
If a good case is made out for an
extension, the proper exercise of the discretion would be one that
results in granting the extension.
Our courts have defined
discretionary power in these words:
“Discretion
means, when it is said that something is to be done within the
discretion of the authorities that that something
is to be done
according to the rules of reason and justice, not according to
private opinion . . . according to law and not to
humour. It is
to be not arbitrary, vague and fanciful, but legal and regular.”
[56]
[82]
If the RRO exercises the discretion properly, as he or she is
enjoined to do, every deserving application for extension or
amendment
must be successful. But if the exercise is improper,
the difficulty does not stem from section 22(3) but lies with the
decision-making
by the RRO. And a solution to it is a review
application.
[83]
We cannot approach the task of construing the section on the
footing that the RRO would exercise the discretion improperly, and
therefore preference should be given to a reading that excludes the
exercise of a discretion. On the contrary, we must assume
that
given their expertise and experience, the RROs would exercise their
discretion properly. A similar context arose in
SAPS
and
there this Court stated:
“It follows
in my view that the interpretation of the regulation must be
undertaken on the basis that if the Commissioner
has a discretion, he
will exercise it fairly and with due regard to all the relevant
protection to which an incumbent is entitled
in terms of the relevant
legislation. We are required to determine whether the
Commissioner has a discretion, on the assumption
that, if he has a
discretion, he will exercise it properly. The assumption that
he would exercise the discretion improperly
is an irresponsible and
unjustifiable one. The improper exercise by the Commissioner of
a discretion is subject to judicial
control.”
[57]
[84]
But even if an asylum seeker’s application for an
extension of a permit is declined, in circumstances where it should
have
succeeded, it does not follow from such refusal alone that he or
she must be returned to the country where he or she would be
persecuted
or subjected to harm.
Section 2
of the
Refugees Act
guarantees
foreign nationals certain protections, which are
consistent with the international law principle of
non-refoulment
in terms of which states are obliged not to deport a refugee to a
country where he or she would be persecuted or face physical
harm.
[58]
[85]
Section 2
does not only oblige South Africa to give entry into
its territory to every refugee seeking asylum, but also forbids
expulsion,
extradition or return if the person concerned would be
persecuted, lose freedom or be physically harmed as a result of such
expulsion,
extradition or return. This prohibition takes
precedence over all other laws, including the
Refugees Act itself
.
Moreover, the protections in
section 2
do not depend on the existence
of a permit or any other condition, except those stipulated in that
section.
[86]
Again, we must proceed from the premise that officials of the
Department of Home Affairs would comply with
section 2.
For if
they do not, their decisions would be susceptible to review to
protect the rights of foreign nationals.
[87]
For all these reasons I conclude that
section 22(3)
grants the
RRO a discretionary power to do two things. These are to extend
permits and to amend conditions attached to them.
Therefore, I
do not support the declaration that the RRO has no discretion and as
a result he or she is obliged to extend every
permit upon
application.
For the
Applicants:
M Bishop and P Mdakane instructed by the Legal Resources Centre.
For the
Respondents:
MA Albertus
SC and A Njeza instructed by the State Attorney.
[1]
A
Refugee Reception Officer is
an
administrative official whose position is created in terms of
section 8(2)
of the
Refugees Act 130 of 1998
.
[2]
3 of 2000.
[3]
This too is an administrative official whose position is created in
terms of
section 8(2)
of the
Refugees Act. The
RSDO decides
applications in terms of
section 24(3)
of this Act.
[4]
I use the terms “extension” “renewal” and
“re-issue” interchangeably throughout this judgment.
[5]
The respondents before the High Court were the Minister of Home
Affairs, the Director General, Department of Home Affairs, the
Acting Manager, Cape Town Refugee Facility, the Standing Committee
for Refugee Affairs, Mr K Sloth-Nielson, NO (Chairperson
of the Standing Committee for Refugee Affairs), the Refugee Appeal
Board and Mr M Chipu N.O. (Chairperson of the Refugee
Appeal
Board).
[6]
Saidi v Minister of Home Affairs
[2015] ZAWCHC 201
(High
Court judgment) at para 20.
[7]
On the test, see
Paulsen v Slip Knot Investments 777 (Pty) Ltd
[2015] ZACC 5
;
2015 (3) SA 479
(CC);
2015 (5) BCLR 509
(CC) at
paras 20-4.
[8]
Id at paras 25-7.
[9]
Section 21(1), which is referred to in the
quotation, reads:
“
An
application for asylum must be made in person in accordance with the
prescribed procedures to a Refugee Reception Officer at
any Refugee
Reception Office.”
[10]
I quote this section at [16].
[11]
Of course, the provisions of the Regulations have
no bearing on the interpretative exercise.
[12]
Van Rooyen v The State (General Council of the Bar of South
Africa Intervening)
[2002] ZACC 8; 2002 (5) SA 246 (CC); 2002
(8) BCLR 810 (CC).
[13]
90 of 1993.
[14]
Van Rooyen
above n 12 at paras 181-2. See also
Joseph
v City of Johannesburg
[2009] ZACC 30
;
2010 (4) SA 55
(CC);
2010
(3) BCLR 212
(CC) at para 73 and
South African Police Service v
Public Servants Association
[2006] ZACC 18
;
2007 (3) SA 521
(CC);
2007 (5) BLLR 383
(CC) (
SAPS
) at para 15.
[15]
Department of Land Affairs v Goedgelegen
Tropical Fruits (Pty) Ltd
[2007]
ZACC 12
;
2007 (6) SA 199
(CC);
2007 (10) BCLR 1027
(CC)
(
Goedgelegen
)
at para 51.
[16]
Makate v Vodacom (Pty) Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC);
2016 (6) BCLR 709
(CC) at paras 87 9.
[17]
See, for example,
Bertie Van Zyl (Pty) Ltd v Minister for Safety
and Security
[2009] ZACC 11
;
2010 (2) SA 181
(CC);
2009 (10)
BCLR 978
(CC) at para 21 and
Goedgelegen
above n 15 at para
53.
[18]
The long title of the
Refugees Act provides
:
“
To
give effect within the Republic of South Africa to the relevant
international legal instruments, principles and standards relating
to refugees; to provide for the reception into South Africa of
asylum seekers; to regulate applications for and recognition of
refugee status; to provide for the rights and obligations flowing
from such status; and to provide for matters connected therewith.”
[19]
For these, see paragraphs (a) and (b) of
section 2
of the
Refugees
Act which
I quote shortly.
[20]
Convention Relating to the Status of Refugees, 28 July 1951 at 3.
[21]
Hirsi Jamaa v Italy
[GC], no. 27765/09, ECHR 2012 at 64.
[22]
Id at 63-4.
[23]
Id at 63.
[24]
See
Association of Mineworkers and Construction Union v Chamber
of Mines of South Africa
[2017] ZACC 3
;
2017
(3) SA 242
(CC);
2017 (6) BCLR 700
(CC)
at paras 32-4;
Democratic Alliance v Speaker, National Assembly
[2016] ZACC
8
;
2016 (3) SA 487
(CC);
2016 (5) BCLR 577
(CC)
at paras 19-28;
Kubyana v Standard Bank of South Africa Ltd
[2014] ZACC 1
;
2014 (3) SA 56
(CC);
2014 (4)
BCLR 400
(CC)
at para 18;
Cool Ideas 1186 CC v Hubbard
[2014] ZACC 16
;
2014 (4) SA 474
(CC);
2014
(8) BCLR 869
(CC)
(
Cool Ideas
) at para 28; and
National Credit Regulator v Opperman
[2012] ZACC 29
;
2013
(2) SA 1
(CC);
2013 (2) BCLR 170
(CC)
at para 105.
[25]
Compare
Cool Ideas
id.
[26]
For example, that may be after the 180-day period stipulated by
section 7
of PAJA as the period within which to bring a review has
elapsed.
[27]
Section 22(1)
of the
Refugees Act.
[28]
Makate
above n 16 at para 87. The full citation of
Fraser
that Jafta J quotes is
Fraser v ABSA Bank Limited
[
2006] ZACC 24
;
2007 (3) SA 484
(CC)
[2006] ZACC 24
; ;
2007 (3)
BCLR 219
(CC). See also
Goedgelegen
above n 15 at para 53 where Moseneke DCJ
tells us that courts “must prefer a generous construction over
a merely
textual or legalistic one in order to afford claimants the
fullest possible protection of their constitutional guarantees”.
[29]
SAPS
above n 14 at para 20.
[30]
Section 12 of the Constitution provides:
“(1)
Everyone has the right to freedom and security of the person, which
includes the right—
(a)
not to be deprived of freedom arbitrarily or without just cause;
(b)
not to be detained without trial;
(c)
to be free from all forms of violence from either public or private
sources;
(d)
not to be tortured in any way; and
(e)
not to be treated or punished in a cruel, inhuman or degrading way.
(2)
Everyone has the right to bodily and psychological integrity, which
includes the right—
(a)
to make decisions concerning reproduction;
(b)
to security in and control over their body; and
(c)
not to be subjected to medical or scientific experiments without
their informed consent.”
[31]
Section 11 of the Constitution provides: “Everyone has the
right to life.”
[32]
High Court judgment above n 6 at para 10.
[33]
Minister of Home Affairs v Saidi
[2017] ZASCA 40
;
2017 (4) SA
435
(SCA) at para 42.
[34]
SAPS
above n 14.
[35]
Van Rooyen
above n 12
.
[36]
Id at para 181.
[37]
90 of 1993.
[38]
Section 2
of the
Refugees Act.
[39
]
See
section 22(1)
of the
Refugees Act.
[40
]
Id.
[41]
Id
section 22(3).
[42]
Id
section 22(6).
[43]
Id
section 21(1)
and (2).
[44]
Id
section 24(2).
[45]
Id
section 24(3)(d).
[46]
Id
section 24(3)(a)
and (b).
[47]
Id
section 24(3)(b)
& (c).
[48]
Section 26(1)
of the
Refugees Act provides
:
“Any asylum
seeker may lodge an appeal with the Appeal Board in the manner and
within the period provided for in the rules
if the Refugee Status
Determination Officer has rejected the application in terms of
section 24(3)(c).
”
[49]
Section 25(1)
of the of the
Refugees Act provides
:
“The
Standing Committee must review any decision taken by a Refugee
Status Determination Officer in terms of
section 24(3)(b).
”
[50]
Cool Ideas
above n 24 at para 28.
[51]
Section 8(2)
of the
Refugees Act provides
:
“Each
Refugee Reception Office must consist of at least one Refugee
Reception Officer and one Refugee Status Determination
Officer who
must—
(a)
be officers of the Department, designated by the Director General
for a term of office determined by the Director General; and
(b)
have such qualifications, experience and knowledge of refugee
matters as makes them capable of performing their functions.”
[52]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Tourism
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR
687
(CC) (
Bato Star
) at para 48.
[53]
Shwartz v Shwartz
[1984] ZASCA 79
;
1984 (4) SA 467
(A);
[1984] 4 All SA 645
at
473-4.
[54]
R v Sisilane
1959 (2) SA 448
(A);
[1959] 2 All SA 519
(A) at
453.
[55]
SAPS
above n 14 at para 20.
[56]
Ismail v Durban City Council
1973 (2) SA 362
(A);
[1973] 2
All SA 307
(N) at 373-4. See also
Goldberg v Minster of
Prisons
1979 (1) SA 14 (A); [1979] 3 All SA 238 (AD).
[57]
SAPS
above n 14 at para 75.
[58]
Section 2
provides:
“Notwithstanding
any provision of this Act or any other law to the contrary, no
person may be refused entry into the Republic,
expelled, extradited
or returned to any other country or be subject to any similar
measure, if as a result of such refusal, expulsion,
extradition,
return or other measure, such person is compelled to return to or
remain in a country where—
(a)
he or she may be subjected to persecution on account of his or her
race, religion, nationality, political opinion or membership of a
particular social group; or
(b)
his or her life, physical safety or freedom would be threatened
on
account of external aggression, occupation, foreign domination or
other events seriously disturbing or disrupting public order
in
either part or the whole of that country.”