THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 3599/24
In the matter between:
BELGICIAN ILUNGA Applicant
and
THE MINISTER OF HOME AFFAIRS First Respondent
THE DIRECTOR GENERAL
OF THE DEPARTMENT OF HOME AFFAIRS Second Respondent
THE CHAIRPERSON OF THE STANDING
COMMITTEE FOR REFUGEE AFFAIRS Third Respondent
THE STANDING COMMITTEE
FOR REFUGEE AFFAIRS Fourth Respondent
THE REFUGEE STATUS DETERMINATION
OFFICER, CAPE TOWN Fifth Respondent
Coram: Yake AJ
Heard: 9 June 2026
Delivered: Electronically on 17 September 2026
Summary: Administrative law — Section 6(2) (e)(iii) of the Promotion of
Administrative Justice Act 3 of 2000 – review – respondent failure to consider
relevant factors – consideration of irrelevant factors is reviewable.
ORDER
1. The decision of the third and fourth respondents dated 29 December 2023
is reviewed and set aside.
2. The matter is remitted to the fourth respondent for reconsideration in
accordance with section 3 of the Refugees Act 130 of 1998, the
provisions of PAJA, and section 33 of the Constitution.
3. The fourth respondent is directed to reconsider the applicant’s refugee
status within sixty (60) days of this order, taking into account all relevant
considerations and disregarding irrelevant ones.
4. The respondents are ordered to pay the costs of this application, jointly
and severally, the one paying the other to be absolved.
JUDGMENT
YAKE AJ
Introduction
[1] This is an application brought in terms of section 6 of the Promotion of
Administrative Justice Act1 (‘PAJA’), read with the principle of legality, for an
order reviewing and setting aside the third (The Chairperson of the Standing
Committee for Refugee Affairs) and fourth (The Standing Committee for
Refugee Affairs) respondents ’ decision made on 29 December 2023 to
withdraw the applicant’s refugee status. The Impugned Decision was premised
on section 5(1)(e), read with section 36 of the Refugees Act.2 The application is
opposed by the respondents. It is instructive that I first set out the underpinning
background facts of the applicant’s challenge.
Factual Background
[2] The applicant is a citizen of the Democratic Republic of the Congo
(“DRC”), born in 1982 in Pweto, situated in Haut -Katanga province, and is of
Luba ethnicity. Upon completing his matric in 2000, he joined the Force
ďAutodefence Populaire (“FAP”), a volunteer organisation established to
identify and counter destabilising forces in the region. He became a prominent
member of that organisation.
[3] In 2001, President Laurent Kabila, himself of Luba origin, was
assassinated. Thereafter, Eddy Kapend, a senior military figure in President
Kabila’s administration and of Lunda ethnicity, was arrested, convicted in 2003
of involvement in the assassination, and sentenced to death. Following
Kapend’s arrest, tensions within the FAP between the Lunda and Luba factions
intensified and endured for decades. Amid escalating violence, hostility, and
widespread human rights violations, the applicant fled the DRC and arrived in
1 Promotion of Administrative Act 3 of 2000.
2 Refugees Act 130 of 1998.
South Africa in 2003. He applied for refugee status, which was duly granted in
recognition of the prevailing conditions of war in the DRC.
[4] On 16 July 2015, the Katanga parliament resolved to break up Katanga
into four provinces, namely Haut -Katanga, Lualaba, Haut -Lomami, and
Tanganyika. Pursuant thereto, on 23 September 2015, the fourth respondent
addressed correspondence to the applicant, advising of an intention to withdraw
his refugee status. The applicant avers that this decision was predicated upon an
erroneous assumption that he was a deserter from the DRC military. He
maintains that he has never served in the military. Notwithstanding his denial,
on 16 November 2016 , the fourth respondent proceeded to withdraw the
applicant’s refugee status.
[5] On 9 May 2023, Erasmus J set aside the decision taken by the fourth
respondent (cited as the third respondent in the present application) on 16
November 2016 and referred the matter to the fifth respondent (cited herein as
the fourth respondent) for reconsideration of the applicant’s refugee status (“the
Erasmus order”). The respondents were further ordered to provide the outcome
of the reconsideration by 12 July 2023. However, the respondents failed to do
so.
[6] Pursuant to the Erasmus order, on 28 August 2023 the applicant attended
the offices of the fourth respondent, where he was interviewed by two officials.
Thereafter, on 27 October 2023, the applicant was requested to furnish credible
reports or evidence demonstrating the existence of ethnic -related conflicts
between the Luba and Lunda tribes in Pweto. The applicant complied with this
request and submitted the reports on 5 December 2023. On 29 December 2023,
the applicant’s attorney received correspondence from the third respondent,
which stated, inter alia, the following:
‘54 The circumstances under which the applicant was recognised as a refugee no
longer exist and that is why the Standing Committee relied on section 5(1)(e)
of the Refugees Act as amended.
55 The applicant has at the same time failed to show the Standing Committee that
there are compelling reasons which arise from his claim when he came to
South Africa as per section 5(2) of the Act.
56 As a result, the Standing Committee hereby withdraws Mr BELGICIAN
ILUNGA’s refugee status based on section 5(1)(e) read with section 36 of the
Refugees Act (Amended).’
[7] It is this decision of withdrawing the applicant ’s refugee status taken by
the third and fourth respondents on 29 December 2023 that the applicant now
seeks an order reviewing and setting it aside. In addition to the relief of review
and setting aside, the applicant seeks an order substituting the impugned
decision with a determination that he is entitled to continue to enjoy refugee
status in terms of the Refugees Act. In the alternative, the applicant seeks an
order remitting the
matter to the fourth respondent for reconsideration.
Statutory framework
[8] Before turning to the substantive facts of this application, it is apposite to
refer to the relevant statutory provisions underpin ning the applicant’s
application. The preamble to the Refugees Act records that:
‘Whereas the Republic of South Africa has acceded to the 1951 Convention Relating to
the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees and the 1969
Organization of African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africa as well as other human rights instruments, and has in so doing,
assumed certain obligations to receive and treat in its territory refugees in accordance with
the standards and principles established in international law’
[9] Section 2 of the Refugees Act incorporates the international law principle
of non-refoulement, which is articulated in Article 33.1 of the 1951 Convention
Relating to the Status of Refugees (the 1951 Convention),3 as follows:
‘No Contracting State shall expel or return ( “refouler”) a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular
social group or political opinion.’
[10] The circumstances in which one determines whether an individual
qualifies for refugee status are set out in section 3 of the Refugees Act. Section
3(a) and (b) of the Refugees Act provide relevant parts:
‘Subject to Chapter 3, a person qualifies for refugee status for the purposes of this Act
if that person—
(a) owing to a well -founded fear of being persecuted by reason of his or her race,
gender, tribe, religion, nationality, political opinion or membership of a particular
social group, is outside the country of his or her nationality and is unable or
unwilling to avail himself or herself of the protection of that country, or, not
having a nationality and being outside the country of his or her former habitual
residence is unable or, owing to such fear, unwilling to return to it; or
(b) owing to external aggression, occupation, foreign domination or other events
seriously disturbing public order in either a part or the whole of his or her country
of origin or nationality, is compelled to leave his or her place of habitual residence
in order to seek refuge in another place outside his or her country of origin or
nationality’ (My omission)
[11] On the other hand, section 5(e) of the Refugees Act governs the cessation
of refugee status and provides as follows:
3 Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189
UNTS 137.
‘(1) A person ceases to qualify for refugee status for the purposes of this Act if—
………..
(e) he or she can no longer continue to refuse to avail himself or herself of the
protection of the country of his or her nationality because the circumstances in
connection with which he or she has been recognised as a refugee have ceased to exist
and no other circumstances have arisen which justify his or her continued recognition
as a refugee’(My omission)
[12] Furthermore, section 6(2)(e)(iii) of PAJA provides for judicial review of
administrative action as follows:
‘(2) A court or tribunal has the power to judicially review an administrative action
if—
(e) the action was taken—
(iii) because irrelevant considerations were taken into account or relevant
considerations were not considered’ (My omission)
[13] Section 6(2) (e)(iii) flows from the requirements of just administrative
action, which is entrenched in section 33 of the Constitution.4 Section 33(1) and
(3) provide:
‘(1) Everyone has the right to administrative action that is lawful, reasonable and
procedurally fair.
. . .
(3) National legislation must be enacted to give effect to these rights, and must—
(a) Provide for the review of administrative action by a court or, where
appropriate, an independent and impartial tribunal’
[14] Against the backdrop of the statutory provisions outlined above, I now
turn to consider each of the grounds of review as advanced by the applicant.
The applicant contends that the se grounds for review ar e premised upon both
the PAJA and the principle of legality . They require scrutiny in light of the
4 Constitution of the Republic of South Africa, 1996.
constitutional guarantee of lawful, reasonable, and procedurally fair
administrative action. These grounds may be succinctly stated as follows:
(a) That the impugned decision was taken based on irrelevant
considerations and/or in disregard of relevant considerations.
(b) That the decision is vitiated by an error of fact.
(c) That the decision is further tainted by an error of law.
[15] The court is therefore enjoined to determine whether the impugned
decision is vitiated by reviewable irregularities under PAJA and the
Constitution, and whether the applicant is entitled to the relief sought. I now
consider each of ground raise in detail in turn.
Reliance on irrelevant considerations / relevant considerations not
considered.
[16] In support of the application, Mr Maxongo, appearing for the applicant,
contends that the decisions taken by the third and fourth respondents were
manifestly unreasonable and fall foul of section 6(2) (e)(iii) of the P AJA.
Counsel placed reliance upon the judgment of the Supreme Court of Appeal in
Ulde v Minister of Home Affairs ,5 wherein it was emphasised that it is not
enough for an administrative official to merely state he considered an issue. An
official must demonstrate that he has properly applied his mind to the issue. 6 In
this regard, the Court drew upon the earlier authority of Northwest Townships
(Pty) Ltd v The Administrator, Transvaal,7 where Colman J observed that:
‘[A] failure by the person vested with the discretion to apply his mind to the matter …
has been held, in other English and South African cases, to include capriciousness, a
failure, on the part of the person enjoined to make the decision, to appreciate the
5 Ulde v Minister of Home Affairs and Another 2009 (4) SA 552 (SCA) para 7.
6 Ibid para 7.
7 Northwest Townships (Pty) Ltd v The Administrator, Transvaal and Another 1975 (4) SA 1 (T) at 8F-G.
nature and limits of the discretion to be exercised, a failure to direct his thought s to
the relevant data or the relevant principles, reliance on irrelevant considerations, an
arbitrary approach, and an application of wrong principles.’
[17] The applicant’s application for refugee status in 2023 was premised upon
ethnic-related conflicts between the Luba and Lunda tribes . However, counsel
contends that the broader context discloses that the introduction of new
governmental structures, coupled with the activities of militia, rebel groups, and
other tribal factions, has perpetuated gross human rights violations and
continued atrocities against the Luba people in the applicant’s home region and
its surrounds. It is submitted that the third respondent adopted an unduly narrow
approach in her assessment, disregarding these broader considerations, and
thereby failed to correctly apply sections 3(a) and 3(b) of the Refugees Act.
[18] Counsel further asserts that the third respondent incorrectly stated that
armed conflicts between rebel militia and the government of Katanga province
were confined to the eastern parts of the D RC, and that the applicant was not
from that region. This finding is disputed. Counsel maintains that the applicant
is indeed from the eastern part of the DRC and that the respondent’s findings in
this regard are factually inaccurate.
[19] Additionally, it is contended that the third respondent’s assertion that it is
‘relatively safe’ in Kinshasa and Haut -Katanga is irrelevant. What is material,
counsel submits, is that the region is unsafe. Moreover, by acknowledging that
it is only ‘relatively safe ’, the third respondent implicitly concedes that
conditions remain unsafe.
[20] Conversely, Mr Abba, appearing for the respondents, argued that the
decision taken by the fourth respondent was reasonable in that it was based
upon the material placed before her and, on that basis, she confirmed that the
upon the material placed before her and, on that basis, she confirmed that the
applicant’s refugee status should be withdrawn. Counsel emphasised that the
fourth respondent requested the applicant to provide evidence of ongoing
ethnic-related conflict in the region. It was submitted that the applicant
responded with outdated reports, including one published as far back as 2003,
which had already been considered by the fourth respondent. Reliance was
placed upon the authority of the Court of Justice of the European Union in
Joined Cases C -148/13 to C -150/13 A, B and C v Staatssecretaris van
Veiligheid en Justitie,8 where it was held that applicants bear a duty to cooperate
by providing all relevant information and documentation in support of their
applications.
[21] Counsel further submits that the applicant has failed to demonstrate that
the specific ethnic and security conditions in Pweto, which formed the basis of
his original recognition as a refugee , continue to exist. It is contended that the
reports submitted either pre -date his arrival in South Africa, pertain to different
geographic areas, or have already been considered and rejected by the Standing
Committee for Refugee Affairs. In the absence of credible evidence establishing
risk in Haut -Katanga, counsel argues the applicant cannot satisfy the objective
component of the refugee definition.
Analysis
[22] It is common cause that the applicant departed the D RC in consequence
of ethnic-related conflicts between the Luba and Lunda tribes in Pweto, and that
he has been residing in South Africa since 2003. The central issue for
consideration before this Court is whether those conflicts continue to exist so as
to warrant the extension of his refugee status, or whether the fourth
respondent’s failure to consider other intervening circumstances resulted in the
withdrawal of such status. Additionally, whether the decisions of the third and
8 Joined Cases C-148/13 to C-150/13 A, B and C v Staatssecretaris van Veiligheid en Justitie [2014] EU:C:
2014:2406 (CJEU, Grand Chamber) paras 50 & 68.
fourth respondents withstand scrutiny under section 6(2) (e)(iii) of PAJA, which
proscribes reliance upon irrelevant considerations or the failure to consider
relevant ones.
[23] The legal position is clear: if the court finds that the fourth respondent
failed to take into account relevant considerations, or relied upon considerations
that were irrelevant, the impugned decision is susceptible to review under
section 6 of PAJA. 9 In such circumstances, the court is empowered to set aside
the decision and substitute or remit the matter, or otherwise to make an order
that is just and equitable in the circumstances. It must, however, be emphasised
that the court’s powers of review are not to be exercised capriciously or without
proper foundation. The court is enjoined to assess the facts placed before it,
weigh the considerations advanced, and determine, upon a reasoned and
informed basis, whether the threshold for review has been met. Only where the
impugned decision is shown to be vitiated by the defects contemplated in
section 6 of PAJA will judicial intervention be warranted. In this Division, Le
Grange J, in the matter of A.M v Chairperson of the Refugee Appeal Board ,10
has stated that:
‘A court must show respect for a legislative design which creates a specialist body to
deal with the task of making decisions of an administrative nature. Besides, review
cannot simply be conflated into an appeal to usurp these decisions -making powers,
thereby expanding the powers of court s into areas which a legislative framework has
expressly eschewed.’
[24] This requires a careful balancing of the applicant’s evidence of
continuing persecution and insecurity against the respondents’ contention that
the conditions underpinning the original recognition have ceased to exist. The
court must assess whether the decision -maker meaningfully applied her mind to
9 Section 6(2)(e)(iii).
10 A.M v Chairperson of the Refugee Appeal Board and Others (1102/2019) [2019] ZAWCHC 113 para 39.
the totality of the circumstances, or whether the approach adopted was unduly
narrow and therefore unreasonable.
[25] The applicant’s case rests upon the contention that the respondents
adopted an unduly narrow approach, disregarding the broader context of militia
activity, rebel incursions, and systemic human rights violations affecting the
Luba people. The respondents, conversely, emphasise the applicant’s duty to
cooperate by furnishing credible, updated evidence, and argue that the
documentation submitted was outdated, geographically misplaced, or previously
considered. While the duty of cooperation is a recognised principle in refugee
law, it cannot absolve the decision -maker of the obligation to apply her mind to
the totality of the circumstances. The authorities of Ulde and Northwest
Townships make it clear that a mere ritualistic assertion of consideration is
insufficient. The decision -maker must demonstrate meaningful engagement
with the material facts.
[26] The respondents’ reliance upon the assertion that Kinshasa and
Haut-Katanga are ‘relatively safe’ is problematic. Such a concession implicitly
acknowledges the persistence of insecurity. To predicate a decision upon this
equivocal finding, while disregarding broader evidence of ongoing conflict and
persecution, amounts to reliance upon irrelevant considerations and a failure to
accord proper weight to relevant ones. It must be borne in mind that section 3 of
the Refugees Act accords refugee status to persons who, being outside their
country of origin, have a well -founded fear of persecution by reason of race,
tribe, religion, nationality, political opinion, or membership of a particular
social group, or are compelled to leave their country owing to events seriously
disturbing or disrupting public order in either a part or the whole of that
country.11 Moreover, section 5(2) of the Refugees Act stipulates that even where
the circumstances justifying refugee status have ostensibly ceased to exist, a
the circumstances justifying refugee status have ostensibly ceased to exist, a
11 Section 3(a) and (b) of the Refugees Act.
person remains a refugee if he or she can invoke compelling reasons arising
from previous persecution for refusing to avail himself or herself of the
protection of the country of nationality.
[27] I agree with the applicant ’s counsel that the third respondent appears to
have adopted a narrow approach, confining her assessment to inter -ethnic
tensions between the Luba and Lunda tribes, while disregarding broader
evidence of militia incursions and human rights violations affecting the
applicant’s community. As a result, I find that the decisions of the third and
fourth respondents are vitiated by reviewable irregularities under PAJA.
Consequently, based on this ground alone, the decisions accordingly fall to be
reviewed and set aside.
Error of fact
[28] It is trite that material mistakes of fact are reviewable where the
decision-maker fails to consider ‘uncontroversial and objectively verifiable ’
facts that are material and which, if properly considered, would probably have
led to a different outcome.12 Mr Maxongo contends that the third respondent
erred in concluding that the reports of atrocities related to Tanganyika province
rather than Haut -Katanga, the applicant’s province of origin. Counsel submits
that Tanganyika and Haut -Katanga are contiguous, and that conflicts in one
province inevitably spill over into the other. In this regard, it is argued that the
third respondent’s conclusion that the reports were irrelevant is factually
unsustainable, particularly in light of her own finding that there was a
12 See Pepcor Retirement Fund and Another v Financial Services Board and Another 2003 (6) SA 38 (SCA)
paras 47-48; South Durban Community Environmental Alliance v MEC for Economic Development, Tourism
and Environmental Affairs, KwaZulu-Natal Provincial Government and Another 2020 (4) SA 453 (SCA) paras
23–24; Airports Company South Africa v Tswelokgotso Trading Enterprises CC 2019 (1) SA 204 (GJ) para 12.
resurgence of incursions by Mai -Mai Bakata -Katanga in Pweto, situated in
Haut-Katanga, the applicant’s place of origin.
[29] Counsel further submit ted that this ground falls squarely within section
6(2)(e)(iii) of PAJA in that the third respondent failed to take into account
relevant considerations. The relevant consideration, he argues, is that Pweto was
expressly mentioned in the reports as an area experiencing renewed incursions
by Mai -Mai Bakata -Katanga (a militant rebel group) . Counsel contends that
there is no evidence demonstrating that Mai -Mai Bakata-Katanga has been fully
withdrawn from the region and that the report marked ‘I’ confirms its continued
presence. In addition, counsel asserts that there is no evidence to suggest that
the clashes between the Pygmy Batwa and Luba tribes have ceased.
[30] Conversely, Mr Abba argued that the applicant was originally granted
refugee status on the basis of alleged persecution arising from his tribal
affiliation and his claimed membership of the FAP . This was in the context of
inter-ethnic tensions between the Luba and Lunda tribes in Katanga. Counsel
submits that Pweto is not affected by armed conflict in the eastern DRC, and
that the conditions which originally underpinned his recognition as a refugee
have accordingly ceased to exist.
Analysis
[31] The evidence placed before this Court includes reports of atrocities
relating to the Tanganyika region. While the applicant did not reside in
Tanganyika, it has been submitted that conflicts in that province spill over into
Haut-Katanga, where the applicant originally resided. In my view, any evidence
suggesting otherwise is untenable given the geographical proximity and the
well-documented pattern of cross -border incursions. Moreover, the third
respondent expressly acknowledged a resurgence of incursions by Mai -Mai
Bakata-Katanga in Pweto, which is situated in Haut -Katanga, the applicant’s
place of origin. This acknowledgment fatally undermines the conclusion that the
reports were irrelevant. It demonstrates that the respondent failed to properly
weigh relevant considerations and instead discounted evidence that directly
corroborated the applicant’s claim of ongoing insecurity.
[32] It is correct that the applicant’s original recognition as a refugee was
premised upon persecution arising from his tribal affiliation and alleged
membership of the FAP. However, that historical basis does not negate the fact
that Pweto remains affected by ongoing insecurity. Moreover, the applicant’s
contention that Pweto was expressly mentioned in the reports as an area
experiencing renewed incursions is significant. The absence of evidence
demonstrating that Mai -Mai Bakata -Katanga has withdrawn from the region,
coupled with the continued clashes between the Pygmy Batwa and Luba tribes,
constitutes relevant considerations that ought properly to have been taken into
account. The failure to do so amounts to a material error of fact and a disregard
of relevant considerations within the meaning of section 6(2)(e)(iii) of PAJA.
[33] In the circumstances, I am satisfied that the third respondent’s decision
was vitiated by a material mistake of fact. T herefore, t he failure to properly
engage with objectively verifiable evidence of ongoing conflict in Pweto
constitutes a reviewable irregularity under PAJA.
Error of law
[34] The applicant’s contention is that the Erasmus order directed the fourth
respondent to reconsider and determine his refugee status in accordance with
section 3(a) and 3(b) of the Refugees Act. On the strength of the sources placed
before the respondents, it is argued that the applicant’s tribe, the Luba, has been
subjected to constant attacks by the Lunda, Pygmy Twa, Mai -Mai
Bakata-Katanga, and other ethnic groups in Pweto and the greater Katanga
province. These circumstances, counsel submits, establish a well -founded fear
of persecution on account of tribal affiliation, membership of a particular social
group, and political opinion, corroborated by objective evidence of the inability
of the DRC government to afford protection.
[35] The applicant further relies upon the prevailing conditions in Pweto and
Katanga, evidenced in reports and articles, which reveal extreme violence, gross
human rights violations, and disruption of public order. It is contended that the
third respondent failed to properly consider section 3 (a) of the Refugees Act,
notwithstanding clear findings that the region remains unsafe and unstable. On
this basis, counsel avers that exceptional circumstances exist warranting
substitution of the impugned decision, as remittal would serve no practical
purpose given the extensive representations already made.
[36] The respondents, conversely, argue that the principle of legality
constitutes a residual ground of review which does not apply where the
impugned conduct falls within the ambit of PAJA. Since the withdrawal of
refugee status constitutes ‘administrative action’ within the meaning of PAJA, it
is submitted that PAJA provides the applicable framework. Counsel further
contends that section 6(2) (d) of PAJA expressly provides for review where
administrative action has been materially influenced by an error of law, which
encompasses errors of fact. Reliance is placed upon Pepcor,13 with the
submission that the alleged errors identified by the applicant are either not
errors at all, immaterial to the outcome, or adequately explained.
13 Pepcor supra fn 12.
Analysis
[37] The Constitutional Court has clarified the proper approach to determining
whether a matter falls to be brought under PAJA or pursuant to the common
law. The Court has held that, where PAJA applies, litigants are obliged to frame
their cases within its provisions rather than relying upon residual common -law
grounds of review .14 The principle of legality retains relevance only in
circumstances where the impugned conduct does not fall within PAJA’s
definition of administrative action.15
[38] Similarly, while section 33 of the Constitution guarantees the right to just
administrative action, it does not constitute a primary review pathway in itself.
PAJA was enacted to give effect to section 33, and litigants may not bypass
PAJA by invoking the constitutional provision directly, save where the
constitutionality of PAJA itself is challenged. Direct reliance upon section 33
remains permissible only in cases where PAJA does not apply, or where PAJA
is impugned for inconsistency with the Constitution. In certain instances,
legislation other than PAJA provides for a specialised statutory review
mechanism which displaces PAJA. Thus, for example, rulings of the
Commission for Conciliation, Mediation and Arbitration ( ‘CCMA’) fall to be
reviewed under the Labour Relations Act 16 66 of 1996, rather than under PAJA.
This demonstrates that PAJA does not apply universally and may be ousted
where Parliament has enacted a tailored review framework for specific
categories of administrative decisions.
[39] In the present matter, it is accepted that the P AJA constitutes the relevant
framework governing the se proceedings . The applicant’s reference to the
14 Minister of Health and Another v New Clicks South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC) para
96 and Minister of Home Affairs and Another v Public Protector 2018 (3) SA 380 (SCA) para 27-28.
15 Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and
Others 1999 (1) SA 374 (CC) para 59 and Klaaren & Penfold “Just administrative action” in Matthew
Chaskalson et al Constitutional Law of South Africa (2002) at 15.
16 Labour Relations Act 66 of 1996.
principle of legality, though misplaced, does not vitiate the proceedings. The
invocation of legality does not introduce a distinct or independent ground of
review beyond that already encompassed within PAJA. The statutory
framework is sufficiently comprehensive to address the applicant’s complaints,
and the reliance upon legality adds no substantive dimension to the case.
[40] Having clarified the position on the applicable review framework, it is
necessary to consider whether an error of law materially influenced the
impugned decision . Our courts recognise that such error arises where a
decision-maker misconstrues the empowering provision or applies the wrong
legal standard. Section 6(2) (d) of PAJA expressly provides that administrative
action is reviewable where it was materially influenced by an error of law.
[41] In Hirt & Carter (Pty) Ltd v Arntsen NO ,17 the Supreme Court of Appeal
held that a material error of law arises where a statutory criterion is wrongly
interpreted and, on the correct approach, the facts do not support the decision.
Similarly, such error is present where the administrator asks itself the wrong
question or bases its decision on considerations not prescribed by the statute.
[42] However, in City of Johannesburg Metropolitan Municipality v Gauteng
Development Tribunal,18 the Constitutional Court held:
‘However, a mere error of law is not sufficient for an administrative act to be set
aside. Section 6(2)(d) of the Promotion of Administrative Justice Act permits
administrative action to be reviewed and set aside only where it is “materially
influenced by an error of law”. An error of law is not material if it does not affect the
outcome of the decision.19 This occurs if, on the facts, the decision-maker would have
reached the same decision despite the error of law.’ (Footnotes omitted)
17 Hirt & Carter (Pty) Ltd v Arntsen NO and Others [2021] ZASCA 85 paras 29–30.
17 Hirt & Carter (Pty) Ltd v Arntsen NO and Others [2021] ZASCA 85 paras 29–30.
18 City of Johannesburg Metropolitan Municipality v Gauteng Development Tribunal and Others 2010 (6) SA
182 (CC) para 91.
19 See Hira and Another v Booysen and Another 1992 (4) SA 69 (A) at 93G-H
[43] Therefore, t he critical enquiry in my view is whether the fourth
respondent’s decision to withdraw the applicant’s refugee status was materially
influenced by an error of law within the meaning of section 6(2) (d) of PAJA. If
so, the impugned decision cannot be sustained in law. Put differently, whether
the respondents properly applied section 3 (a) and 3(b) of the Refugees Act in
reconsidering the applicant’s status.
[44] In the present matter, it has been argued that the respondent’s narrow
interpretation of section 3 of the Refugees Act, coupled with her reliance on
irrelevant geographic distinctions, constitutes precisely such an error. By
confining the statutory inquiry to geographic categorisations, the respondent
misconstrued the empowering provision and thereby excluded considerations
central to the statutory scheme. This, in my view , demonstrates that the third
respondent failed to meaningfully engage with reports indicating ongoing
persecution and instability in Pweto and Katanga. The interpretation excluded
relevant considerations prescribed by statute, namely the disruption of public
order and the persecution of the applicant’s tribe in those regions.
[45] Furthermore, the argument that any alleged errors were immaterial, as the
decision would have been the same on the facts , is not sustainable . The record
reveals that the applicant’s representations, supported by objective sources,
established a well -founded fear of persecution and disruption of public order.
Had the respondent correctly interpreted section 3, these considerations would
have been central to the inquiry. The exclusion of such evidence materially
influenced the outcome. In the circumstances, I find that the impugned decision
was materially influenced by an error of law within the meaning of section
6(2)(d) of PAJA.
Conclusion
[46] The cumulative effect of the defects outlined above is that the impugned
decision cannot withstand scrutiny under PAJA. The respondent relied upon
irrelevant considerations, disregarded material and relevant evidence,
committed a material error of fact, and misconstrued the applicable legal
framework under section 3 of the Refugees Act. Each of these defects, whether
considered individually or cumulatively, renders the decision unlawful,
unreasonable, and procedurally unfair within the meaning of section 33 of the
Constitution and section 6 of PAJA.
[47] I have duly considered the applicant’s submissions urging this Court to
exercise its powers of substitution on the basis that a remittal to the fourth
respondent would serve no practical purpose. I am unable to agree with this
contention. While it is correct that this Court is vested with the discretion to
substitute the order by the administrator, such relief is reserved for exceptional
circumstances. In my view, the respondents remain best placed to undertake the
determination, having regard to all relevant considerations within the statutory
framework.
[48] In the circumstances, the impugned decision of 29 December 2023 cannot
be sustained. It falls to be reviewed and set aside. The matter is accordingly
remitted to the fourth respondent for reconsideration in accordance with the
Refugees Act.
Costs
[49] What remains for determination is the issue of costs. The general
principle is that costs follow the result, subject to the court’s discretion to depart
therefrom in appropriate circumstances. In the present matter, I discern no basis
upon which such departure would be justified. The ordinary rule must
accordingly apply.
Order
[50] In the result, the following order is made:
1. The decision of the third respondent dated 29 December 2023 is reviewed
and set aside.
2. The matter is remitted to the fourth respondent for reconsideration in
accordance with section 3 of the Refugees Act 130 of 1998, the
provisions of PAJA, and section 33 of the Constitution.
3. The fourth respondent is directed to reconsider the applicant’s refugee
status within sixty (60) days of this order, taking into account all relevant
considerations and disregarding irrelevant ones.
4. The respondents are ordered to pay the costs of this application, jointly
and severally, the one paying the other to be absolved.
________________________________
S YAKE
ACTING JUDGE OF THE HIGH COURT
Appearances
For Applicant: Q Maxongo
Instructed by: J Luna Attorneys
For Respondent: Y Abbas
Instructed by: Office of the State Attorney