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[2012] ZAWCHC 398
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Ssemakula and Others v Minister of Home Affairs and Others (4139/11) [2012] ZAWCHC 398 (5 March 2012)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE HIGH COURT,
CAPE TOWN)
Case
No.: 4139/11
DATE
: 05 MARCH 2012
In the matter between:
DENNIS
SSEMAKULA
…..............................................................
First
Applicant
CHRISTELLE KABANGU
MUSASA
........................................
Second
Applicant
SARAH
KUMWERO
.....................................................................
Third
Applicant
JEAN
CLOTAIRE
RUVAKO
......................................................
Fourth
Applicant
BEATHE ML SAB YI
MANA
.........................................................
Fifth
Applicant
MUHAMEDI
MATOVU
.................................................................
Sixth
Applicant
TWAHA
KATENDE
...................................................................
Seventh
Applicant
GEORGE
MUYOMBA
................................................................
Eighth
Applicant
JOHN JTKEME
AFEEZ
...............................................................
Ninth
Applicant
PATRICK KUYANDA
KASHAMATenth
...............................................
Applicant
And
THE
MINISTER OF HOME AFFAIRS
.....................................
First
Respondent
THE
DIRECTOR-GENERAL,
DEPARTMENT
OF HOME AFFAIRS.
..................................
Second
Respondent
THE
DIRECTOR, REFUGEE RECEPTION CENTRE,
MAITLAND
...............................................................................
Third
Respondent
THE
REFUGEE RECEPTION OFFICER,
REFUGEE
RECEPTION CENTRE, MAITLAND
................
Fourth
Respondent
JUDGMENT delivered on 5 MARCH
2012
DOLAMO,
AJ
[1]
The Applicants, all foreign nationals, brought an Application against
the Respondents, in terms of Sections 38(a), (c) and (d)
and 172(1)
of the Constitution of the Republic of South Africa, 1996, for an
order declaring the Respondents' policy, practice
and/or conduct,
since Monday 7 February 2011, of refusing to accept asylum
applications in terms of Section 21 and of refusing
to issue Asylum
Seekers with temporary asylum seekers permits ("ASP") in
terms of Section 22 of the Refugees Act 130
of 1998 (the "
Refugees
Act"
;), unless the asylum seekers were in possession of asylum
transit permits ("ATP"), issued in terms of Section 23 of
the
Immigration Act No 13 of 2002 (the "
Immigration Act"
;),
to be inconsistent with the Constitution of the Republic of South
Africa and the
Refugees Act and
therefore unlawful and invalid;
directing the Respondents to forthwith accept such applications for
and issue temporary ASP's in
accordance with
Section 22
of the
Refugees Act, irrespective
of whether the asylum seekers were in
possession of ATP's or not. The Applicants also asked for costs to be
paid jointly and severally
by the Respondents who appear and oppose
the application. The Respondents are the Minister of Home Affairs;
the Director-General:
Department of Home Affairs; the Director:
Refugee Reception Centre, Maitland and the Refugee Reception Officer:
Maitland. I shall
henceforth refer to them collectively as the
"Respondents".
[2]
The Applicants alleged in their founding papers that they were asylum
seekers and nationals of various African Countries. They
alleged to
have fled from their respective countries of origin where they faced
serious risk of persecution and danger to their
lives and security,
to the relative security of the Republic of South Africa. They face
the same prospects of persecution and mortal
danger if they were to
return to their respective countries of origin. They entered the
Republic of South Africa at different times
and at various points but
admittedly, mostly not through recognized border posts to, seek
asylum. As such many were not in possession
of ATP's issued in terms
of
Section 23
of the
Immigration Act which
would have been issued to
them had they entered this country at official border posts. Once in
the Republic they made their way,
via different routes, to Cape Town
where they made several attempts at the Maitland Refugee Reception
Office to lodge their individual
applications for ASP's. The
officials at this Centre refused to accept their applications, citing
various reasons for doing so.
One of the reasons, which crystallized
since on or about 7
th
February 2011, was to demand an ATP and in the absence of such, to
refuse to accept applications for asylum permits. Confronted
with
this problem the Applicants, on or about Thursday the 10
th
February 2011, approached the Legal Resources Centre for assistance.
On appraising himself of their situation, their attorney of
record
sent an e-mail calling upon the Third Respondent to respond to these
allegations, which were termed "breathtakingly
unlawful as to be
almost criminal", by not later than noon on Monday the 14
th
February 2011. The Third Respondent did not respond, whereupon the
Applicants launched the present application on an urgent basis
as
threatened in the said e-mail. The Applicants further stated in their
papers that the alleged policy, practice or conduct of
the
Respondents prevented a large number of would be asylum seekers from
exercising their legal and constitutional rights to apply
for asylum
and had the effect that such people were unable to obtain
Section 22
asylum-seeker permits, which consequently exposed them to the real
risk of arrest and deportation as illegal foreigners.
[3]
All the Respondents opposed the application.
[4]
The Respondents' opposing papers consisted of affidavits by the
Deputy Minister to the First Respondent; Second and Third
Respondents;
as well as two confirmatory affidavits by Messrs. J.W.
McKay Deputy- Director Immigration and A. Essel, Refugee Status
Determination
Manager, both of the First Respondent's Department. In
all these affidavits the Respondents, in general, denied the
existence of
a policy, practice or directive by the Department of
Home Affairs in terms of which applications for ASP were not accepted
and
asylum permits not issued, if the Applicants were not in
possession of permits issued in terms of
Section 23
of the
Immigration Act. The
Third Respondent went further and dealt in more
details with the allegations in the Applicants' founding papers.
Paragraphs 4 and
5 of his opposing affidavit, in particular, read as
follows:
"4. I have read the
founding papers in this application. The applicants contend that
since February 2011, the respondents have
refused to accept
applications for asylum unless asylum-seekers are in possession of
asylum transit permits issued in terms of
section 23 of the
Immigration Act 13 of 2002 ("the
Immigration Act"
;).
5.
But that is not so.
5.1. The Department has not
adopted any policy, practice or directive, in terms of which an
application for asylum is accepted only
if the asylum-seeker is in
possession of an asylum transit permit issued under
section 23
of the
Immigration Act.
5.2.
There
is likewise no policy, practice or directive, allegedly
implemented since Monday 7 February 2011, in terms of which
asylum-seekers
are refused permits under section 22 of the Refugees
Act 130 of 1998 ("the
Refugees Act"
;), unless they are in
possession of asylum transit permits issued under the
Immigration
Act.
>
5.3. The Minister, Deputy
Minister and the Director-General, the second respondent, prior to
the launching of this application,
were unaware of the allegations by
the applicants and others that an asylum transit permit under
section
23
of the
Immigration Act was
a prerequisite for an asylum
application or the issuance of a permit under
section 22
of the
Refugees Act. In
this regard I refer to the affidavits by the Deputy
Minister and the Director-General, filed herewith.
5.4.
For these reasons it will be argued that the applicants are not
entitled to the relief sought."
[5]
The Third Respondent also dealt with a meeting, attended by
top-ranking officials of the Respondents, which was held on the
2
nd
February 2011, where numerous issues were discussed. These issues,
according to him, included matters such as an analysis and trends
in
asylum seekers management statistics, vacancies at various offices,
the turnaround time in processing applications and appeals
by asylum
seekers and the operation of various refugee centres. To meet these
challenges a suggestion, nothing more than a mere
suggestion, he
contended, was made to regulate the processing of applications by
"continuing" with the practice of issuing
asylum transit
permits under
Section 23
of the
Immigration Act when
asylum seekers
reported at a border post. I pause here to point out that the alleged
practice was to continue to issue
Section 23
permits at the border
post and not to insist on such a permit when an application for a
refugee permit was made.
[6]
Third Respondent went on to allege that there appeared to have been a
misunderstanding on the part of some managers of refugee
centres that
the suggestion to continue with the issuing of ATP's at border posts,
emanating from the meeting of the 2
nd
February 2011, was in fact a directive to require the production of
ATP's, as a prerequisite, from Applicants for refugee permits.
This
misunderstanding, according to him, led to some of the managers
seeking clarification from Mr. McKay. Mr. McKay's clarification
is
said to be contained in his email dated the 24
th
February 2011 (Third Respondent erroneously stated the date to be the
23
rd
February 2011) which was directed to officials in the First
Respondent's department. Since considerable time was spent in
argument
referring to this e-mail and its interpretation and, as
reference will be made to it hereinafter, I deem it appropriate to
quote
it verbatim. It reads as follows:
"I would like to draw your
attention to the reported concerns indicating that asylum seekers
reporting to the Refugee Reception
Offices without
S23
or valid
travel documents are not assisted which has also been confirmed by
Musina (e-mail message below). At the meeting held
in Cape Town on 02
February 2011 with DM a range of option to deal with high volume of
applicants for asylum were discussed and
one of them
was a suggestion for us to look
at implications if we insist or give first preference to those asylum
seekers with
S23
or valid travel documents. This was a measure that
needed to be looked into to encourage asylum seekers entering the
Republic to
use the designated Ports of Entry and not a decision to
be implemented (as yet).
The DDG has further reiterated
that all new arrivals at the Refugee Reception Offices must be
attended to.
I would also like to indicate
that no directive has been issued to refuse those asylum seekers
without
S23
or valid travel documents. I do not understand therefore
how such a change can be implemented without a directive and agreed
upon
process.
You are therefore directed not
to implement suggestions//proposals - these remain possible options -
until informed decisions on
them are taken and approved."
[7]
The denials by the Respondents of the existence of policy, practice
and/or conduct invoked a sharp response from the Applicants
who
stated that "it went beyond rational belief that they, who came
from different countries in Africa, would have somehow
conspired to
waste their and their legal representatives' time by repeatedly
engaging in imaginary complaints against the Respondents.
To
substantiate this assertion that the conduct complained about was
still continuing, despite the Respondents' denials, the Applicants
filed additional affidavits, one by Kaajal Ramjathan-Keogh who was
employed as a Manager by Lawyers for Human Rights in its Refugee
and
Migrant Rights Program and the other by one Alaina Evelyn
Varvaloucas, who was an intern at a nongovernmental
organization,
People Against Suffering,
Oppression and Poverty ("Passop"), wherein they claimed to
have witnessed applicants
for Refugee Permits who had no ATP's still
being turned away. The Applicants also invited the Respondents, an
invitation which
was ignored, to respond to these new allegations.
[8]
At the time this matter was heard all the Applicants were already
issued with their Asylum Permits, prompting the Respondents
to argue
that the matter was moot as between the parties. The Applicants,
however, persisted with the application for a declaratory
order on
the grounds that the outcome was of importance, not only to them, but
to other refugees who may find themselves in similar
circumstances as
they were as a result of the conduct of the Respondents. The
Applicants accordingly sought a declaratory order
to the effect that
the Respondents' conduct was inconsistent with the Constitution of
the Republic of South Africa and the provisions
of
Sections 21
and
22
of the
Refugees Act and
therefore unlawful and illegal. The
Applicants did not state in their papers which provisions of the
Constitution were violated
by the conduct of the Respondents. I am
however satisfied that this is not fatal to their course as one can
assume, which assumption
is also in line with the Rule 16A notice
which was filed, that the alleged violation was, inter alia, of their
constitutional rights
to equality (Section 9); human dignity (Section
10); freedom and security of person (Section 12) and just
administrative action
(Section 33).
[9]
Mr. Atkins, who appeared for the Applicants, argued that, although
the Respondents have denied that there was a policy or practice
by
the Respondents with which the Applicants could take issues, failed
to deny that the "conduct" of the First Respondent's
officials, which was also a source of the complaint by the
Applicants, was not in accordance with the policy of the First
Respondent's
department. For this reason alone, he argued, the
Applicants were entitled to the relief prayed for in the notice of
motion. He
also argued that the Respondents were economic with the
truth when they alleged that there was a misunderstanding regarding
the
decision taken at the meeting of the 2
nd
February 2011, which was to continue with issuing permits in terms of
Section 23
of the
Immigration Act, because
this was clearly
transformed into conduct by certain officials. According to him the
only inference to be drawn from the e-mail
of Mr. McKay, wherein he
sought to clarify the decision taken on
Section 23
permits, was that
this had in fact been formulated into a policy, practice, directive
or conduct which was to be implemented once
informed decisions on
them had been taken; that, notwithstanding the various emails
exchanged by various of the First Respondent's
officials trying to
clarify the matter amongst themselves, on the one hand, and other
interested parties, such as representatives
of the United Nations
Commission for Refugees (UNHCR), on the other, the founding
affidavits of the Applicants revealed various
incidents
after the 15
th
February 2011 where an ATP was still demanded when applying for
a Refugee Permit. He, however, conceded that
as from
the 28
th
February 2011 (four days after the launch of this application), after
Respondents' officials had made an undertaking to that effect,
applications were accepted without requiring the production of an ATP
from an applicant. He also made reference to the affidavit
of Ms.
Varvaloucas as proof that the conduct complained of was still
continuing, the launching of this application and the alleged
directives clarifying the issue having been unsuccessful in
regulating the unlawful conduct of the Respondent's officials.
This
according to him justified the grant of a declaratory order against
the Respondents, in the terms prayed for, and that there
could be no
prejudice to the Respondents since such orders would merely confirm
the existing law.
[10]
Mr. Moerane on behalf of the Respondents commenced his address by
submitting that the affidavits of Keogh and Varvaloucas,
filed out of
time as they were, should be struck out, alternatively, ignored by
the Court. His contention was that the Applicants
were supposed to
have made out their case in the founding and not in their replying
papers. According to him the introduction of
these new facts at this
late stage deprived the Respondents of the opportunity to respond
thereto. Furthermore, he submitted that
the affidavit of Varvaloucas
contained hearsay evidence, did not refer to any of the Applicants
nor a specific person or persons
and, overall, did not advance the
Applicant's course any further for lack of details. His main
argument, however, remained the
submission made in the heads of
argument that the matter was moot and that the declaratory order
sought by the Applicants will
serve no purpose as it will be a mere
statement of the law as contained in the statute in question.
[11]
The papers as well as the arguments presented by Counsels make the
following issues pertinent for resolution:
11.1. whether there are any real
dispute of facts and if so, whether they are capable of resolution on
the papers;
11.2. whether the affidavits of
Keogh and Varvaloucas should be struck out or ignored;
11.3. whether the matter is moot
as between the parties and, if so;
11.4. whether the Applicants are
still entitled to a declaratory order due to the alleged importance
of the matter.
[12]
I deal first with the question of the dispute of facts. Mr. Moerane
argued that there was a real dispute of facts on the papers,
which
the Applicants should have foreseen. He proposed that this Court
should follow the general rule, formulated by Corbett JA
in Plascon
Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA
623
(A), and followed in subsequent judgments and recently by Harms
DP in National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA 277
(SCA) a case to which Mr. Atkins also referred, that when there is a
dispute of facts a final order should only be granted in motion
proceedings if the facts as stated by the Respondents, together with
the admitted facts in the Applicant's affidavits justify such
an
order. He also produced a schedule of what, according to the
Respondents, were real dispute of facts. I found this schedule
a
useful guide to the areas which the Court should focus when dealing
with this aspect but, by no means conclusive. On the other
hand, and
in the eyes of the Applicants, the denials by the Respondents, which
are said to create real dispute of facts, were nothing
but
disingenuous. To Mr. Atkins the denials by Third Respondent did not
go far enough as the existence of a conduct by the Respondents'
officials was not denied, and that there was no real dispute of facts
which were incapable of resolution on the papers.
[13]
In the Zuma matter supra Harms DP stated the rule in the Plascon
Evans matter as follows:
"[26]
Motion proceedings, unless concerned with interim relief, are all
about the resolution of legal issues based on common
cause facts.
Unless the circumstances are special they cannot be used to resolve
factual issues because they are not designed to
determine
probabilities. It is well established under the Plascon-Evans rule
that where in motion proceedings disputes of fact
arise on the
affidavits, a final order can be granted only if the facts averred in
the applicant's (Mr Zuma's) affidavits, which
have been admitted by
the respondent (the NDPP), together with the facts alleged by the
latter, justify such order. It may be different
if the respondent's
version consists of bald or uncreditworthy denials, raises fictitious
disputes of fact, is palpably implausible,
far-fetched or so clearly
untenable that the court is justified in rejecting them merely on the
papers ".
[14]
The facts which were common cause between the parties were the
following: the Applicants who are foreign nationals applied
for
asylum seekers permits at various times, but mainly during February
2011 at the Maitland Refugee Centre. After initially being
turned
back for want of ATP they were eventually granted Asylum Permits.
This was after the launch of the present application.
It is also
common cause that in terms of
Section 21
of the
Refugees Act the
only
requirement which an Applicant must comply with is that he or she
must make the application in person according to the prescribed
procedure and that he or she must have his or her fingerprints taken
(and, if older than sixteen years, furnish two recent photographs
of
himself or herself). That on receipt of an application complying with
the requirements of
Section 21
the Respondent were obliged, in terms
of Section 22 of the
Refugees Act, to
issue Asylum Seekers' Permits
to the Applicants therefore; that during the month of February 2011,
more particularly as from the
7
th
, the Respondents'
officials started demanding ATP's as a prerequisite for accepting
applications for ASP's; that this practice
or conduct had stopped by
the time the application was heard, and the Applicants had been
issued with their permits. What is in
dispute was whether this demand
for ATP's was as a result of a policy, practice, directive or conduct
by the Respondent's which
would be in violation of
Section 21
of the
Refugees Act and
the Constitution as alleged by the Applicants or
merely a misunderstanding as contended by the Respondents.
[15]
In argument before Court, Mr. Atkins eventually conceded that there
was no proof of a policy, directive or practice pointing
to the
requirement of ATP's as a prerequisite for an application in terms of
Section 21
of the
Refugees Act, but
maintained that there was indeed
such a conduct. He found support for his contention in the alleged
failure by the Respondents
to deny its existence in their opposing
papers. According to him paragraphs 4 and 5 of Third Respondents’
opposing affidavit
did not go far enough as to deny the existence of
this conduct. Nor did all the other affidavits filed by the
Respondents. Consequently,
he argued that the Respondents' officials
had elevated a suggestion emanating from the meeting of the 2
nd
February 2011 to conduct and would soon have been translated into
policy, once informed decisions had been taken.
[16]
I respectfully do not agree with these submissions. It is obvious
from the other e-mails that were attached to the Applicants'
founding
affidavits that the Respondent officials were trying to seek
clarification regarding the minutes of the 2
nd
February 2011. For example, when Lindile Kgasi was confronted by the
contents of Sergio Calle Nosena's e-mail of the 14
th
February 2011 she immediately on the 15
th
February 2011 sought clarification from her colleagues. Similarly,
Mfundo Ngozwana merely expressed his interpretation of the notes
from
the said meeting which were forwarded to him. Mr. Jackson McKay
ultimately set the record straight on
the
24
th
February 2011 in his e-mail quoted above. The language used is
straight forward and there is no ambiguity as to the message
conveyed.
One is left in no doubt that he was clarifying any
misconceptions regarding what was discussed and agreed upon in the
meeting of
the 2
nd
February 2011.
[17]
There is therefore in my view no dispute or facts which cannot be
resolved on the papers before court. I agree with Mr Moerane
that the
only finding that can be made on the papers in respect of this issue
is that the Respondents never adopted any policy,
directive or
practice in terms of which
Section 23
ATP was a prerequisite for an
asylum application or the issuance of a permit under
Section 22
of
the
Refugees Act.
>
[18]
The question remains, however, whether the misunderstanding, admitted
by the Respondents, resulted in "conduct" which
would
justify an order in the terms sought by the Applicants. The
Respondents’ contention is that the matter is now moot
between
the parties and no purpose will be served by an order whose only
purpose is to state the existing law. The Applicants insisted
that a
declaratory order would be necessary even if it is a confirmation of
the existing law if we are to avoid a repeat, in future,
of the
circumstances in which the Applicants found themselves where their
constitutional rights were affected by the Respondents'
conduct.
[19]
Mr. Moerane argued that since the Applicants have conceded that there
was no longer any conduct, policy or directive, as far
back as the
17
th
May 2011, in terms of which an Applicant for asylum will only be
assisted if he or she was in possession of an asylum transit permit,
there was no longer any practical and/or substantive relief for
Applicants to pursue. That the matter has therefore become moot
as
between the parties. That while this court was empowered in terms of
Section 38 and 172(l)(a) of the Constitution, and in terms
of Section
19(l)(a)(iii) of the Supreme Court Act 59 of 1959 ("the Supreme
Court Act"), to grant a declaratory order
it has a discretion to
do so and may refuse to grant an order when such an order would have
no practical effect. Relying on Ex
Parte
Noriskin
1962 (1) SA 856 (N) he also
argued that a court should not grant a declaratory order when the
legal position has already been clearly
defined by statute.
[20]
Mr. Atkins, on the other hand, submitted that even if it was found
that the issuing of the refugee permits to the Applicants
rendered
the matter moot as between the parties, which was not conceded, this
Court was called upon to exercise its discretion
and grant a
declaratory order in
favour
of the Applicants because of the
importance of the matter not only to the Applicants but to other
would be asylum seekers whom he
described as a vulnerable group.
If I understood this argument correctly the declaratory order is
necessary to prevent a
likely situation arising where the
Respondents' officials would relapse into the alleged unlawful
conduct of demanding ATP's which
is contrary to the provisions of the
Refugee Act and which may be prejudicial to future would be but
undefined asylum seekers.
[21]
I deal first with the question whether a declaratory order as sought
by the Applicants can be made in terms of
Section 19(l)(iii) of the
Supreme Court Act. Section 19(l)(iii) provides as follows:
"(l)(a)
A provincial or local division shall have jurisdiction over all
persons
residing
or being in and in relation to all causes arising and all offences
triable within its area or jurisdiction and all other
matters of
which it may according to law take cognizance, and shall, subject to
the provisions of subsection (2), in addition to
any powers or
jurisdiction which may be vested in it by law, have power -
(i)
to
hear and determine appeals from all inferior courts within its
area
of jurisdiction;
(ii)
to review the proceedings of all
such courts;
(iii)
in its discretion, and at the
instance of any interested person, to
enquire into and determine
any existing, future or contingent
right or obligation,
notwithstanding that such person cannot claim
any relief
consequential upon the determination."
[22]
This subsection has been interpreted in a number of decisions to mean
that a court will not deal with, or pronounce upon, abstract
or
academic points of law and that there must be an existing and
concrete dispute between persons, albeit as to future or contingent
rights, before the court will act (see Erasmus: Superior Court
Practice A 1-33 and the authorities quoted in footnote 2 thereto;
Ex
Parte Nell 1963 (1) SA 754 (A) at 760 A-C a contrary view, however,
was held: that an existing dispute is not a prerequisite
to an
exercise by a court of the jurisdiction conferred by this section as
long as there were interested parties upon whom the
declaratory order
will be binding). The contradictions imported by the
Nell
decision however
should not detain us as I am of the view that a prerequisite for the
use of this section does not apply to the
Applicants, as will appear
from what is stated below.
[23]
The requirement that all interested parties are to be joined in an
application for a declaratory order
[1]
under this subsection clearly
makes it unsuitable for the present circumstances. This section is
therefore not available as to the
Applicants for this reason. I find
it unnecessary to discuss the further requirements of this section.
That leaves the provisions
of Section 38 and 172(l)(a) on which the
Applicants in any event as relied on; the only applicable sections
under which this court
may bring out the kind of declaratory order
requested by the Applicants.
[24]
A matter is moot as between the parties, as defined by Ackermann J,
if "it no longer presents an existing or live controversy
which
should exist if the court is to avoid giving advisory opinions on
abstract propositions of law."
[2]
But mootness does not spell an
end to the matter. The Court may still exercise its discretion and
entertain the matter if the declaratory
order it may bring out will
have a practical effect on the parties or on others.
[3]
In exercising its discretion the
court will naturally look
inter
alia
at the
importance of the issue to the affected parties, the complexity and
the fullness or otherwise of the arguments advanced.
[25] Before dealing with what
the effect of mootness will be in this matter I deem it appropriate
to
emphasise
that the Applicants have brought
this application in terms of Section 38(a); (c) and (d) as well as
Section 172(l)(a) of the Constitution
for the effective enforcement
of their constitutional rights. They allege to be doing so in their
own interest, in the interest
of a group or class of persons and
generally in the public interest. They have also filed a Rule 16A
notice which clearly underlines
their reliance on the Constitutional
provisions. The application of Section
19(l)(a)(iii) of the Supreme
Court Act, therefore, in my view, finds limited application. The
sections of the Constitution relied
on by the Applicants widens the
scope of the discretion which this court can exercise, i.e. whether
to entertain the matter beyond
its mootness and to bring out a
declaratory order or to refuse to do so.
[26]
In the circumstances therefore, while I agree with Mr. Moerane that
the matter has become moot as between the parties, I deem
it in the
interest of justice to extend the enquiry into whether the
declaratory order sought by the Applicants would be of any
benefit to
any group or class of persons or the general public, post this
application. I cannot summarily shut the door in the
face of this
call to look into the efficacy of an order which may advance the
protection of constitutional rights.
[27]
Originally the Applicants could rightfully claim to be acting in
terms of Section 38 (9); (6); and (d) but in my view their
standing
in terms of section 38 (a) has now fallen off since they have been
granted the relief they were seeking. They may still
have standing in
terms of subsections (c) and (d). In terms of subsections (c) and
(d), however, the Court has to be circumspect
in invoking these
provisions.
[28]
In Ferreira v Levin NO and Others; and Vryenhoek and Others v Powell
NO and Others
1996 (1) SA 984
(CC) at 1104-1105 O'Regan J, mentioned
factors which may be considered by the court in determining whether a
person was genuinely
acting in the public interest. These will
include whether there was another reasonable and effective manner in
which the challenge
can be brought; the nature of the relief sought
and the extent to which it is of general and prospective application;
the range
of persons or groups who may be directly or indirectly
affected by an order made by the court and the opportunity that those
people
have had to present evidence and argument to court
[4]
.
I propose to adopt the same approach as a guide in determining
whether a declaratory order in this matter will be of any benefit
to
the groups or class of people envisaged and/or on the general public.
[29]
Refugees have been described as a vulnerable group of people, in the
South African context, because of their lack of means,
support
systems, family, friends or acquaintances, a likely lack of or
limited understanding of the South African legal system
and its
values and also a limited knowledge of any lawyers and/or
non-governmental organization that could assist them. I cannot
find
fault with this general description of the circumstances of refugees
but, on the facts of this case, it would appear that,
mostly if not
all the refugees involved or, at least those who presented themselves
to the Maitland Refugee Reception Centre, were
aware of the
non-governmental organizations operating in this field, may have come
into contact with them and know of the sterling
work they do.
I
also mention in passing that it will also be incumbent upon these
organizations to make themselves visible at these centres so
as to
assist those who are in dire need of their services.
Having
said that, it is also the duty of the courts, to assist these
vulnerable groups; by removing any illegal obstacles which
may hamper
non-governmental
organisations
in their effectiveness; and to
ensure that refugees enjoy their constitutional rights. This court is
therefore enjoined to fulfill
this role. In doing so it, however,
must operate within the parameters of reason and logic and in pursuit
of the constitutional
imperatives.
[30]
It is abundantly clear from the aforegoing that the Respondents had
no policy and/or practice of refusing to accept asylum
applications
in terms of Section 21 or of refusing to issue asylum seekers with
temporary asylum seekers permits in terms of
Section 22
of the
Refugees Act. There
was no such policy, practice and/or directive as
on the 7
th
February 2011 and the subsequent dates. What happened, however, was
that the misunderstanding referred to by the Third Respondent
which
led to some officials refusing to accept this application, if they
were not accompanied by an ATP found application for a
very brief
period of time. This according to Mr. Atkins, it was conduct which
justifies an intervention by this court. I am not
convinced that this
was of a sustained nature as to amount to conduct which requires
reaction in the form of a declaratory order
from this court. It was
of a brief and flirting moment, not persisted with once it was
identified and has since come to an end.
As argued by Mr Moerane the
allegations in the affidavits of Kaajal Ramjathan-Keogh and Alama
Evelyn Varvaloncas, even if I accept
them do not take the matter any
further since they do not refer to any specific person and contain
hearsay evidence. I am of the
view that they cannot be used as proof
of the continuation of the conduct. No useful purpose, to the group
or class of people who
were affected thereby or, who may be affected
thereby or to the general public, will be served by bringing out a
declaratory order,
especially in the circumstances where Section 21
of the Refugee Act, regulate the legal position in clear and
unambiguous terms.
[31]
I therefore find that the Applicants have failed to prove that a
declaratory order, post the mootness of the matter, is in
the public
interest or that it will benefit any future asylum seekers.
[32]
Lastly, the Respondents have conceded that if they were to succeed no
cost order would be of any use to them. I share the same
view and
consequently no order as so costs will be made.
[33]
The order I make therefore is the following:
32.1.
the application is dismissed; and
32.2.
no order as to costs is made
DOLAMO,
AJ
[1]
See:
Contactprops
25 (Pty) Ltd v Executive Council, Province of the Eastern Cape
2000 (3) All SA 443
(CK) at 446f.
[2]
See:
National
Coalition for Gays and Lesbians Equality and Others v Minister of
Home Affairs and Others
2000 (2) SA1 (CC) footnote 18.
[3]
See:
President,
Ordinary Court Martial and Others v Freedom Expression Institute and
Others
[1999] ZACC 10
;
1999 (4) SA
682
(CC) at
para
16.
[4]
Ferreira v Levin NO and
Others; Vryenhoek and Others v Powell NO and Others
1996 (1) SA 984
(CC) at para 234.