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[2014] ZAWCHC 69
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Bahamboula and Others v Minister of Home Affairs and Others (1476/14) [2014] ZAWCHC 69; 2014 (9) BCLR 1021 (WCC) (8 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
number: 1476/14
DATE:
08 MAY 2014
In
the matter between:
ANNIE
PELAGIE
BAHAMBOULA
...........................................................
First
Applicant
ABEBE
LEGESSE
BIRU
........................................................................
Second
Applicant
GIVEMORE
TALKMORE
CHOGA
........................................................
Third
Applicant
MIREILLE
YOLANDE NSIKOU
DIMBA
............................................
Fourth
Applicant
JEAN
PIERR
HABIMANA
........................................................................
Fifth
Applicant
SIHLE
BEAUTY
NCUBE
...........................................................................
Sixth
Applicant
JOHN
ILUNGA
TSHISHIMBI
............................................................
Seventh
Applicant
And
THE
MINISTER OF HOME
AFFAIRS
..............................................
First
Respondent
THE
DIRECTOR-GENERAL OF
THE
DEPARTMENT OF HOME AFFAIRS
..................................
Second
Respondent
THE
CHIEF DIRECTOR:ASYLUM
SEEKERS
MANAGEMENT
.............................................................
Third
Respondent
THE
ACTING MANAGER OF THE CAPE
TOWN
REFUGEE RECEPTION OFFICE
....................................
Fourth
Respondent
JUDGMENT
8
MAY 2014
INTRODUCTION
1.
The Applicants (represented by Mr Simonsz) instituted these
proceedings on an
urgent basis in which they seek inter alia the
following relief:
1.1.
A declaration that the Internal Memorandum
of the Department of Home Affairs dated 21 January 2013 (“the
Internal Memorandum”)
is unlawful and invalid insofar as it
allows and/or requires the refusal of extensions of permits in terms
of section 22 of the
Refugees Act No 130 of 1998 (“extensions”)
to asylum seekers based on the number of extensions previously
obtained
by that asylum seeker.
1.2.
An Order directing the Respondents
immediately to ensure that no asylum seeker is refused an extension
due to the number of extensions
previously obtained by that asylum
seeker.
2.
The application was opposed by all four
Respondents (represented by Messrs Bofilatos SC and Papier).
3.
This Judgment is structured as follows:
3.1.
First, I address the legal framework in
respect of asylum seekers.
3.2.
Second, I address the relevant evidence.
3.3.
Third, the applicable law is discussed.
3.4.
Finally, my findings and reasons therefor
are addressed.
THE LEGAL
FRAMEWORK
4.
Key aspects of the legal framework
applicable to the complaint raised by the Applicants are set forth
hereunder.
5.
The point of departure is the Refugees Act
No 130 of 1998 (“the Act”). By way of background,
the Act allows for
persons to qualify for refugee status and
regulates the process and requirements in respect thereof.
6.
A person whose refugee status has not yet
been determined is called an asylum seeker and afforded certain
rights under the Act.
7.
Chapter 3 of the Act deals with
applications for asylum:
7.1.
Key
aspects governing applications for asylum are: (a) that they must be
made in person in accordance with the prescribed procedures
to a
Refugee Reception Officer at any Refugee Reception Office
[1]
;
(b) the Refugee Reception Officer must deal with the application in
accordance with the Act
[2]
; (c)
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: (i) such person has applied for asylum in terms of the
relevant provisions in the Act, 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 of the Act; or (ii) such person has been granted asylum.
[3]
7.2.
Section 22 governs an asylum seeker
permit. Given its relevance to these proceedings, the section
warrants quoting in full:
“
(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.
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.”
7.3.
Section 23 regulates the detention of
asylum seekers in circumstances where the Minister has withdrawn an
asylum seeker permit in
terms of section 22 (6).
7.4.
Section 24 regulates the decision-making
process and ultimate decision regarding applications for asylum.
8.
The nub of the Applicants’ complaint
(at the inception of these proceedings) was that the Internal
Memorandum reflects the
extension policy, the effect of which is that
it “allows and/or requires Department officials to refuse to
extend s22 permits
based on the number of previous extensions
obtained by any given asylum seeker.”
9.
There can be no dispute (and indeed there
is none) that the Internal Memorandum prescribed a process for the
extension of section
22 permits that have reached twelve extensions
and could result in the refusal of a section 22 permit based on the
number of prior
extensions that have been granted. In instances
where an asylum seeker has been granted twelve extensions, the
relevant office
must first obtain the necessary authorisation from
the Asylum Seeker Management Unit in Pretoria, before a further
extension can
be granted.
10.
In their founding affidavit, the Applicants
raised the following complaints in relation to the Internal
Memorandum and in support
of the declaratory order they seek:
10.1.
First, it is unlawful because it violates
the rights of all asylum seekers to have valid section 22 permits
granted to them.
10.2.
Second, there is no lawful basis for the
Memorandum which was issued by the Third Respondent who had no powers
under the Act or
any Regulation to control or influence the issue of
section 22 permits.
10.3.
Third, the Internal Memorandum is
irrational due to its “illogical disconnection between who is
responsible for the enforcement
of the extensions policy and who is
punished.”
10.4.
Fourth, the Internal Memorandum and the
extensions policy are being implemented in an arbitrary and vague
fashion.
10.5.
Fifth, the extension policy is unreasonable
and unlawful because of the drastic consequences it creates for
asylum seekers.
10.6.
Sixth, the Internal Memorandum is
unconstitutional.
10.7.
Seventh, the process followed in adopting
the Internal Memorandum was an improper one.
11.
As regards the directory relief sought, the
Applicants contend that it is complementary to the declaratory relief
and founded on
the right of all asylum seekers in terms of the Act
and the Constitution to a valid section 22 permit.
THE
EVIDENCE
12.
In their founding affidavits, the
Applicants contended that they are all lawful asylum seekers in South
Africa and had all recently
been refused extensions of their section
22 permits at the Cape Town Refugee Reception Office, due to the
enforcement of the extension
policy by Departmental officials.
13.
In addition to the application having been
brought on behalf of the Applicants, it was brought on behalf of and
in the interests
of all asylum seekers in South Africa “who may
be affected by the extension policy” as well as in the public
interest.
In this regard, the Applicants aver that the
extension policy has national effect.
14.
The Applicants have further explained that
in the course of the three months preceding the application, UCT
Clinic has been approached
by very large numbers of asylum seekers
who are in exactly the same position as the Applicants. In
support of this averment,
a list of 301 persons is attached to the
founding affidavit.
15.
In their answering affidavits the
Respondents oppose the relief sought on the following main bases:
15.1.
The Internal Memorandum does not authorise
and nor has any official refused the extension of a section 22 permit
based on the number
of extensions that an asylum seeker had
previously obtained.
15.2.
The Department of Home Affairs does not
have a policy which seeks or has the effect of refusing the extension
of section 22 permits
of legitimate asylum seekers and which prevents
the issuing of extensions based on the number of prior extensions, to
the Applicants
or any other asylum seeker in South Africa.
15.3.
The Second Respondent decided on
31
January 2014
that the Cape Town Refugee
Reception Office (“the CTRRO”) should remain closed and
that the Cape Town Temporary Refugee
Facility (“the CTTRF”)
will continue not to accept applications for asylum in respect of any
person who did not apply
for asylum at the CTRRO on or before 30 June
2012. The Second Respondent furthermore decided that the
following services
will be provided at the CTTRF:
“
2.1
The finalisation of all existing applications lodged by asylum
seekers on or before 30 June 2012 at
the CTRRO, including the
extension of their section 22 permits, pending the finalisation of
their applications.
2.2
The granting of limited once off extensions of no fewer than 6 months
of section 22 permits
to the holders of those permits who applied for
them at a Refugee Reception Office (“RRO”) other than the
CTRRO, subject
to the express condition that they attend in future at
the RRO at which they originally applied for asylum.”
15.4.
Permits of asylum seekers are extended in
accordance with the Second Respondent’s decision of 31 January
2014 irrespective
of whether they previously had more than twelve
extensions and irrespective of the existence of the memorandum of 21
January 2013.
15.5.
The following changes have been effected to
the guidelines of 21 January 2013:
15.5.1.
The computerised block on the Department’s
National Immigration Information System (NIIS) has been removed;
15.5.2.
It is no longer necessary to procure
“validation and authorisation” from Asylum Seeker
Management at the Department’s
head office for the unblocking
and extension of section 22 permits where the holder thereof has
received more than 12 previous
extensions;
15.5.3.
The RRO managers at the RRO including the
CTTRF are now authorised to grant extensions to section 22 permit
holders who have received
more than 12 previous extensions.
These RRO managers will not refuse to extend a person’s section
22 permit purely
because he or she has received more than 12 previous
extensions;
15.5.4.
The RRO managers must still obtain a date
from the Standing Committee on Refugee Affairs (“the SCRA”)
or the Refugee
Appeal Board (“the RAB”) in instances
where a person’s section 22 permit has been extended for more
than 12 times.
These dates will then be recorded on such a
person’s section 22 permit when it is extended.
15.6.
The Second and Fifth Applicants are both in
possession of valid section 22 permits which expire on 14 August
2014.
15.7.
The Sixth Applicant’s permit expires
on 30 June 2014.
15.8.
There is no record of the First, Third,
Fourth and Seventh Applicants having attended at the CTTRF in order
to renew their section
22 permits. However, should they
attend the CTTRF for an extension of their section 22 permits, they
will be issued
with extensions thereof.
16.
In their Replying Affidavits, the
Applicants:
16.1.
Concede that all of the Applicants are in
possession of section 22 permits.
16.2.
Contend that the Respondents appear to have
conceded the relief sought by the Applicants.
16.3.
Contend that notwithstanding the official
stance of the Respondents the Memorandum (and/or the blocking policy
contained therein)
is still being implemented sporadically.
16.4.
Provide two further examples of asylum
seekers who had been refused extensions due to having had too many
previous extensions.
16.5.
Contend that there will not be “perfect
implementation” of the Department’s policy but the more
realistic situation
is that while many officials will comply with the
policy, some will not. On this basis, it is contended that a
Court Order
is required. In this regard, the Applicants state:
“At least one purpose of the directory order sought by the
Applicants
is to make it clear that no matter which official, where,
is doing the extensions, he or she cannot refuse or fail to provide
extensions
due to the number of previous extensions of the asylum
seeker in question.”
17.
In the further affidavits filed, the
Applicants refer to a further eight asylum seekers (who have received
12 extensions) and are
alleged to have been told that they cannot
have their permits renewed further. The Respondents address the
position in respect
of two of these persons, and explain why it is
unlikely that a third person presented at their offices. No
explanation is
given in relation to the remaining five persons.
18.
It is for those remaining five persons that
the Applicants contend this case is very much alive.
19.
The Respondents, in their most recent
affidavit attach a list of names of asylum seekers who have received
extensions of their permits
since 31 January 2014. The list
reflects the names of asylum seekers who have had more than twelve
previous extensions.
The Respondents further contend that the
list is “clear proof” that the CTRRF has been extending
the permits of all
asylum seekers with valid section 22 permits in
line with the DG’s decision of 31 January 2014.
20.
In light of the above evidence, it is
common cause (and was confirmed at the hearing of the matter) that
there is no complaint in
relation to the seven Applicants in respect
of whom these proceedings have been instituted. The Applicants
have also approached
the matter on the basis that the Internal
Memorandum has now been withdrawn,
de
facto
, by the Department. The
Applicants further accept that “a very large number –
probably the majority – of
asylum seekers are now being
assisted with extensions in a lawful manner.” However,
they contend that a small number
of asylum seekers are not being or
have not been so assisted. On this basis, they submit that they
are entitled to the relief
sought.
21.
In light of the aforegoing, a key question
that falls to be determined is whether the relief sought in this
application is in fact
moot.
THE
LAW
22.
The Constitutional Court has explained:
“
A
case is moot and therefore not justiciable 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.”
[4]
23.
Although
that is the basic principle, the Constitutional Court has held that,
where it is in the interests of justice to do so,
it has a discretion
to consider and determine matters even if they have become moot.
[5]
The following principles have emerged in this regard:
23.1.
The
Court’s discretion must be exercised according to what the
interests of justice require. A prerequisite for the exercise
of the
discretion is that any order which this Court may make will have some
practical effect either on the parties or on others.
Other factors
that may be relevant to the exercise of the Court’s discretion
will include the nature and extent of the practical
effect that any
possible order might have, the importance of the issue, its
complexity and the fullness or otherwise of the argument
advanced.
[6]
23.2.
The
following factors have been held to be potentially relevant to the
exercise of the Court’s discretion
[7]
:
23.2.1.
The nature and extent of the practical
effect that any possible order might have;
23.2.2.
The importance of the issue;
23.2.3.
The complexity of the issue;
23.2.4.
The fullness or otherwise of the argument
advanced; and
23.2.5.
Resolving disputes between different
courts.
23.3.
A
further relevant consideration is whether the resolution of a moot
issue will be in the public interest. This will be the case
where it
will either benefit the larger public or achieve legal certainty.
[8]
23.4.
In
matters concerning a challenge to legislation, which legislation was
repealed prior to an appeal Court giving judgment, it was
held that
“neither of the applicants, nor for that matter anyone else,
stands to gain the slightest advantage today
from an order dealing
with their moribund and futureless provisions. No wrong which we can
still right was done to either applicant
on the strength of them. Nor
is anything that should be stopped likely to occur under their
rapidly waning authority.”
[9]
It was in that context that the Constitutional Court ultimately
concluded:
“
[17]
In all those circumstances there can hardly be a clearer instance of
issues that are wholly academic, of issues exciting no
interest but a
historical one, than those on which our ruling is wanted have now
become. The repeal of the Publications Act has
disposed altogether of
the question pertaining to that. And any aspect of the one about the
Indecent or Obscene Photographic Matter
Act which our previous
decision on it did not answer finally has been foreclosed by its
repeal in turn. I therefore conclude that
we should decline at this
stage to grant a declaratory order on either topic.”
23.5.
In
another matter dealing with legislation which had been repealed prior
to the matter being heard by the Appeal Court, it was held
[10]
:
“
[15]
However, where the relevant legislative provision has been repealed
after the High Court has made the order of invalidity,
but before
this Court hears the confirmation or appeal proceedings or before it
gives its order,
the need for certainty
may well fall away
. There may, however,
be a need for the Court to give a judgment on the appeal or
confirmation proceedings in order to resolve the
dispute which gave
rise to the litigation between the parties, or for other reasons.
[16] In my view,
however, s 172(2) does not require this Court in all circumstances to
determine matters brought to it under that
subsection. At least where
the provision declared invalid by the High Court has subsequently
been repealed by an Act of Parliament,
the Court has a discretion to
decide whether or not it should deal with the matter. In this regard,
the Court should consider whether
any order it may make will have any
practical effect either on the parties or on others.
[17] In this case
the new legislation replaces all relevant aspects of the legislative
framework upon which the dispute between
the parties was based. The
basis upon which the parties approached the High Court has
disappeared and the grant of the relief claimed,
as well as any
confirmation of an order of constitutional invalidity, can serve no
purpose. ....”
24.
In
Rail
Commuters Action Group v Transnet Ltd t/a Metrorail
[2004] ZACC 20
;
2005 (2) SA 359
(CC) it was held:
“
[106]
I have concluded that Metrorail and the Commuter Corporation bear an
obligation in terms of the SATS Act interpreted in the
light of the
Constitution to ensure that reasonable measures are taken to provide
for the safety and security of rail commuters
on the rail commuter
service they operate. In this Court, they both denied that they bore
such an obligation. The first form of
relief that is sought by the
applicants is declaratory. Section 172(1)(a) of the Constitution
states that this Court must declare
'any law or conduct that is
inconsistent with the Constitution' to be invalid to the extent of
its inconsistency. It is a special
constitutional provision,
different to the common-law rules governing the grant of declaratory
orders. It does not mean, however,
that this Court may not make a
declaratory order in circumstances where it has not found conduct to
be in conflict with the Constitution.
Indeed s 38 of the Constitution
makes it clear that the Court may grant a declaration of rights where
it would constitute appropriate
relief:
'Anyone listed in
this section has the right to approach a competent court, alleging
that a right in the Bill of Rights has been
infringed or threatened,
and the court may grant appropriate relief, including a declaration
of rights.'
Unlike under s
172(1)(a), the courts are not obliged to grant a declaration of
rights but may do so where they consider it to constitute
appropriate
relief. The principles developed at common law, and under the
provisions of the Supreme Court Act, will provide helpful
guidance to
consider whether such a declaratory order should be made, though of
course the constitutional setting may at times
require consideration
of different or additional matters.
[107] It is quite
clear that before it makes a declaratory order a court must consider
all the relevant circumstances.
A declaratory order is a flexible
remedy which can assist in clarifying legal and constitutional
obligations in a manner which promotes
the protection and enforcement
of our Constitution and its values
. Declaratory orders, of
course, may be accompanied by other forms of relief, such as
mandatory or prohibitory orders, but they
may also stand on their
own. In considering whether it is desirable to order mandatory or
prohibitory relief in addition to the
declarator, a court will
consider all the relevant circumstances.
[108]
It should
also be borne in mind that declaratory relief is of particular value
in a constitutional democracy which enables courts
to declare the
law, on the one hand, but leave to the other arms of government, the
Executive and the Legislature, the decision
as to how best the law,
once stated, should be observed
.”
(Own Emphasis)
25.
The question of mootness was most recently
addressed in the matter of
Director-General
of the Department of Home Affairs and Another v Mukhamadiva
[2013] ZACC 47
(12 December 2013) (as yet unreported). That
matter was argued against the following factual background. Ms
Mukhamadiva,
a foreign national, was refused entry into South Africa
when she arrived at Cape Town International Airport. She
thereafter
obtained an order requiring the Department of Home Affairs
to show good cause why she should not be permitted to enter the
country.
However, before the order could be executed, Ms Mukhamadiva
returned to her country of origin and did not participate further in
the proceedings. This notwithstanding, the High Court
proceeded, of its own accord, to investigate why its order had not
been implemented. The Constitutional Court held as follows:
[33]
Long before our constitutional dispensation, the principle has always
been clear: courts should not decide matters that
are abstract or
academic and which do not have any practical effect either on the
parties before the court or the public at large.
In
Geldenhuys
[11]
Innes CJ stated, in the context of the granting of declaratory orders
where no rights have been infringed, that courts of law exist
to
settle concrete controversies and actual infringements of rights, and
not to pronounce upon abstract questions, or give advice
on differing
contentions.
[12]
[34]
This principle, which is fundamental in the conception of the
function of the court,
[13]
was
confirmed in subsequent cases of the Appellate Division.
[14]
In
Graaff Reinet
Municipality
Watermeyer
CJ found that though this principle originated as a rule of practice,
it has since crystallised into a rule of law.
[15]
And in
Flats
Milling Co
the Court again highlighted the principle that courts do not normally
decide academic questions of law,
[16]
and stressed the need for the pronouncement made by the Court
not
to be an academic decision but an operative decision that has a
practical effect on persons before it
.
[17]
[35]
In
Premier
van die Provinsie van Mpumalanga
[18]
Olivier JA, after discussing the rationale behind section 21A of the
Supreme Courts Act,
[19]
laid
down the importance of avoiding vague concepts such as “abstract”,
“academic” and “hypothetical”
as yardsticks
for the exercise of an appeal court’s jurisdiction to hear an
appeal. The question is a positive one,
whether a judgment or
order of the court will have a practical effect and not whether it
will be of importance for a hypothetical
future case.
[20]
[36]
Following on earlier judicial statements, in
JT
Publishing
[21]
Didcott J wrote, in the context of declaration orders, that the
well-established and uniformly observed policy directs courts not
to
exercise their discretion in favour of deciding issues that are
merely abstract, academic or hypothetical.
[22]
He added that this Court would not be obliged to determine an issue
which, because of its abstract, academic or hypothetical
nature, once
determined would produce no concrete or tangible result.
[23]
[37]
The position as set out in
JT
Publishing
was
confirmed and developed by this Court in subsequent judgments.
[24]
In
President
of the Ordinary Court Martial
this principle was accepted and extended to confirmation proceedings
brought in terms of section 172(2) of the Constitution.
Again,
the Court was enjoined, in exercising its powers, to consider whether
any order it made would have a practical effect on
the parties before
it or on others.
[25]
And
in
National
Coalition
the Court noted that a matter is moot and not justiciable if it no
longer presents an existing or live controversy.
[26]
”
(Own Emphasis)
DISCUSSION AND
FINDINGS
26.
The question of mootness must, in my view,
be considered against the following facts:
26.1.
The Respondents have made clear that they
do not have a policy which seeks or has the effect of refusing the
extension of section
22 permits of legitimate asylum seekers and
which prevents the issuing of extensions based on the number of prior
extensions to
the Applicants or any other asylum seeker in South
Africa.
26.2.
The Respondents have stated that permits of
asylum seekers are extended in accordance with the Second
Respondent’s decision
of 31 January 2014 irrespective of
whether they previously had more than twelve extensions and
irrespective of the existence of
the memorandum of 21 January 2013.
Accepting the Respondents’ evidence in this regard, the
Applicants have approached
the matter on the basis that the Internal
Memorandum has now been withdrawn,
de
facto
, by the Department.
26.3.
Certain changes (as identified above have
been effected) to the guidelines of 21 January 2013.
26.4.
The Respondents have attached an extensive
list of names of asylum seekers who have received extensions of their
permits since 31
January 2014 notwithstanding having had more than
twelve previous extensions.
26.5.
It is common cause (and was confirmed at
the hearing of the matter) that there is no complaint in relation to
the seven Applicants
in respect of whom these proceedings have been
instituted.
26.6.
The Applicants accept that “a very
large number – probably the majority – of asylum seekers
are now being assisted
with extensions in a lawful manner.”
27.
Notwithstanding the aforegoing, the
Applicants contend that they are nevertheless entitled to the relief
sought in this application
for inter alia the following reasons:
27.1.
A small number of asylum seekers are not
being or have not been so assisted in terms of the Department’s
guidelines of 31
January 2014.
27.2.
In the transition from the old policy to
the new, “there is always going to be, at the very least, a
period of transition
when mistakes, inefficiencies, corruption or
incompetence plays a role and asylum seekers are unlawfully refused
extensions.”
27.3.
Some of the persons (six on the Applicants’
version) referred to in the Supplementary Replying Affidavit shows
that persons
are being refused section 22 permits based on the number
of prior extensions.
27.4.
The Department, like any government
department, suffers from a degree of bureaucratic ineptitude.
28.
I do not agree that the above mentioned
factors are sufficient to entitle the Applicants to the relief sought
for the following
reasons:
28.1.
I have no reason to doubt the Respondents’
contention that they do not have a policy which seeks or has the
effect of refusing
the extension of section 22 permits of legitimate
asylum seekers and which prevents the issuing of extensions based on
the number
of prior extensions to the Applicants or any other asylum
seeker in South Africa. Indeed, the Applicants did not suggest
otherwise.
28.2.
I also accept that permits of asylum
seekers are extended in accordance with the Second Respondent’s
decision of 31 January
2014 irrespective of whether they previously
had more than twelve extensions and irrespective of the existence of
the memorandum
of 21 January 2013. There was no dispute in
relation to the list of names put up by the Respondents in support of
this averment.
28.3.
There is no complaint in relation to the
seven Applicants in respect of whom these proceedings have been
instituted.
28.4.
I accept that unlike in the cases referred
to above (in the context of legislation having been repealed), there
is no indication
from the Respondents that the Internal Policy has
been withdrawn. Indeed, the suggestion appears to be that it
was amended
by the January 2014 Policy. It is common cause that
the effect of the amendment is that it removes the Applicants’
complaint. Significantly, the Applicants raise no complaint in
respect of the January 2014 Policy.
28.5.
I also do not accept that a Court Order
of the nature sought is justified in order to “cure” an
official’s
intransigence or ineptitude or indeed to address
“mistakes, inefficiencies, corruption or incompetence”.
28.6.
I also do not accept that a government’s
failure to meet a threshold of
absolute
perfection
in the implementation of its
policies, ought to entitle litigants to relief of the nature sought
in this application. Indeed,
Mr Simonsz was unable to point to
me any authority for the proposition that relief of the nature sought
has previously been granted
on the basis of a failure to implement
government policies in each and every instance.
28.7.
There is no ambiguity or uncertainty in
respect of the regulatory framework. The Applicants persist in their
relief in order to
address the question of
implementation
of government policy.
29.
I am of the view that applications for
extensions of section 22 permits are granted by the Department
notwithstanding the number
of prior extensions. I accept, that
there may be instances where despite the Respondents’ approach
as set forth in
its papers in this application, persons are
“sporadically” refused extensions of section 22 permits
on account of the
number of prior extensions. Their recourse,
in those circumstances, is to challenge the impugned decision or
decisions.
30.
I
also do not accept that the alleged position of the further
applicants named in the supplementary replying affidavit can be used
to justify the relief sought. It is a trite principle of motion
proceedings that an applicant must make his case in his founding
affidavit. In this regard, it has been held
[27]
:
“
An
applicant who elects to seek relief in notice of motion proceedings
must (save in exceptional circumstances) make his case and
produce
all the essential evidence, which would be led at a trial, in his
supporting affidavits. It is not for the applicant to
simply make
general allegations and when those allegations are dealt with in
reply to come forward with replying affidavits giving
details
supporting the general allegations originally set out in the
supporting affidavit. The purpose of the replying affidavit
is to
reply to averments made by the respondent in his answering affidavit
and
should not be used to supplement his
cause of action or still less to introduce a new case
.
In Mauerberger v Mauerberger
1948 (3) SA 731
(C) SEARLE J after
reviewing the authorities decided that it was clearly settled law
that in replying affidavits an applicant is
not allowed to set forth
details of allegations which should have appeared in the original
supporting affidavit. Although the Court
can in suitable cases
exercise its discretion and allow new matter to appear in replying
affidavits it will not hesitate, where
an applicant has merely set
out a skeleton case in his supporting affidavits, to strike out any
fortifying paragraphs in his replying
affidavit.”
(Own
Emphasis)
31.
While I do not suggest that the Applicants
made out a skeleton case in their founding affidavit, the point is
that their complaint
was raised in respect of the seven applicants
and the broader interests referred to above. Pursuant to the
Respondent’s
answer ultimately no further complaint was raised
in relation to the Applicants. In these circumstances, it is
not appropriate
for the Applicants to place reliance on a number of
further
individuals whose specific details did not appear in the founding
affidavit. In this regard the Applicants suggest that some
of
the persons were referred to in a list attached to the founding
affidavit. While it is correct that some of these names
were
indeed referred to in that list, that list contained 301 names in an
annexure to the founding affidavit. That cannot,
in my view
justify a stance that the Respondents had to explain the position in
relation to the 301 persons, particularly bearing
in mind that their
names and peculiar circumstances were not specifically addressed in
the founding affidavit.
32.
For these reasons, I am of the view that
this application is moot and falls to be dismissed.
33.
As regards the question of costs, I am of
the view that each party should bear their own costs for the
following reasons:
33.1.
First,
the general rule is that unsuccessful litigants against the State who
are seeking to vindicate constitutional rights should
not be mulcted
with costs.
[28]
33.2.
Secondly,
the Courts have long recognised that where a litigant was reasonable
in launching a case, costs should not be awarded
against him or
her.
[29]
34.
In this case, the application was by no
means “frivolous or vexatious, or in any other way manifestly
inappropriate”.
Indeed, aspects of the internal policy
were defended by the Department in correspondence dated 3 December
2013.
35.
In the result, I make the following Order:
35.1.
The application is dismissed.
35.2.
Each party is to pay their own costs.
BY
ORDER OF COURT
[1]
Section
21(1) and 21(3).
[2]
Section
21(2).
[3]
Section
21(4).
[4]
National
Coalition for Gay & Lesbian Equality v Minister of Home Affairs
2000 (2) SA 1
(CC) (“National Coalition”) at fn 19;
cited with approval by the Supreme Court of Appeal, per Navsa JA, in
Radio
Pretoria v Chairman, Independent Communications Authority of
South Africa and Another
2005 (1) SA 47
(SCA) (“Radio
Pretoria”) at para 39.
[5]
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC)
(2001 (9) BCLR 883)
para 11; MEC for Education, KwaZulu-Natal and
Others v Pillay
2008 (1) SA 474
(CC)
(2008 (2) BCLR 99
;
[2007] ZACC
21)
para 32; Mohamed and Another v President of the Republic of
South Africa and Others (Society for the Abolition of the Death
Penalty
in South Africa and Another Intervening)
2001 (3) SA 893
(CC)
(2001 (2) SACR 66
;
2001 (7) BCLR 685
;
[2001] ZACC 18)
para 70;
Pheko and Others v Ekurhuleni Metropolitan Municipality
2012 (2) SA
598
(CC)
(2012 (4) BCLR 388
;
[2011] ZACC 34)
para 32.
[6]
Independent
Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC)
(2001 (9) BCLR 883)
para 11.
[7]
MEC
for Education, KwaZulu-Natal and Others v Pillay
2008 (1) SA 474
(CC)
(2008 (2) BCLR 99
;
[2007] ZACC 21)
para 32.
[8]
South
African Congo Oil Co (Pty) Ltd v Identiguard International (Pty) Ltd
2012 (5) SA 125
(SCA) at par 5. See too: Van Wyk v
Unitas Hospital and Another (Open Democratic Advice Centre as Amicus
Curiae)
[2007] ZACC 24
;
2008 (2) SA 472
(CC)
(2008 (4) BCLR 442)
para 29. See also
Executive Officer, Financial Services Board v Dynamic Wealth Ltd and
Others
2012 (1) SA 453
(SCA) paras 43 – 44.
[9]
JT
Publishing JT Publishing (Pty) Ltd and Another v Minister of Safety
and Security and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC) at par 16 and 17.
[10]
President,
Ordinary Court Martial v Freedom of Expression Institute 1999 (4) SA
682 (CC).
[11]
Geldenhuys
and Neethling v Beuthin
1918
AD 426 (Geldenhuys).
[12]
Id
at 441.
[13]
Ex
parte Ginsberg
1936 TPD 155
at 157-8.
[14]
Attorney-General,
Transvaal v Flats Milling Co (Pty) Ltd and Others
1958 (3) SA 360
(A) (Flats Milling Co) and Graaff-Reinet Municipality v Van
Ryneveld’s Pass Irrigation Board 1950 (2) SA 420 (A).
[15]
Graaf-Reinet
Municipality id at 424.
[16]
Flats
Milling Co above n 22 at 372. See also R v Singh
1944 AD 366.
[17]
Flats
Milling Co above note 22 at 374.
[18]
Premier
van die Provinsie van Mpumalanga v Stadsraad van Groblersdal [1998]
ZASCA 20; 1998 (2) SA 1136 (SCA).
[19]
The
principles set out above were initially legislated in the
General
Law Third Amendment Act 129 of 1993
, which inserted
section 21A
into
the Supreme Courts Act 59 of 1959. This was then substituted
by the
Judicial Matters Amendment Act 104 of 1996
.
Section 21A(1)
provided:
“
When
at the hearing of any civil appeal to the Appellate Division or any
Provincial or Local Division of the Supreme Court the
issues are of
such a nature that the judgment or order sought will have no
practical effect or result, the appeal may be dismissed
on this
ground alone.”
The
Supreme Court Act has since been repealed and replaced by the
Superior Courts Act 10 of 2013
which provides in
section
16(2)(a)(i):
“
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.”
[20]
Premier
van die Provinsie van Mpumalanga above n 26 at 1141. See also
President of the Ordinary Court Martial and Others
v The Freedom of
Expression Institute and Others
[1999] ZACC 10
;
1999 (4) SA 682
(CC);
1999 (11) BCLR 1219
(CC) (President of the Ordinary Court
Martial) at para 13-4and Simon NO v Air Operations of Europe AB and
Others
[1998] ZASCA 79
;
1999 (1) SA 217
(SCA) at 226.
[21]
JT
Publishing (Pty) Ltd and Another v Minister of Safety and Security
and Others
[1996] ZACC 23
;
1997 (3) SA 514
(CC);
1996 (12) BCLR 1599
(CC) (JT Publishing) at 525A-F.
[22]
Id
at 525B. This principle was accepted with the necessary caveat
that it could be departed from in special circumstances
after taking
into account certain relevant factors.
[23]
Id.
[24]
See
Wiese v Government Employees Pension Fund and Others
[2012] ZACC 5
;
2012 (6) BCLR 599
(CC) at para 22; AAA Investments (Pty) Ltd v Micro
Finance Regulatory Council and Another
[2006] ZACC 9
;
2007 (1) SA
343
(CC);
2006 (11) BCLR 1255
(CC) at para 27; National Coalition
for Gay and Lesbian Equality and Others v Minister of Home Affairs
and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR 39
(CC) (National Coalition) at para 21; President of the Ordinary
Court Martial above n 28 at paras 13-8; and President of the
Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
[1997] ZACC 4
;
1997 (4)
SA 1
(CC);
1997 (6) BCLR 708
(CC) at paras 51 and 54.
[25]
President
of the Ordinary Court Martial above n 28 at paras 13-8.
[26]
National
Coalition above n 32 at para 21.
[27]
Bergkelder,
Die v Delheim Wines (Pty) Ltd
1980 (3) SA 1171
(C) at 1176G-H.
[28]
Biowatch
Trust v Registrar, Genetic Resources, and Others
2009 (6) SA 232
(CC) at paras 21-25.
[29]
Chetty
v Louis Joss Motors
1948 (3) SA 329
(T); Palley v Knight
1961 (4) SA
633
(SR); Rainbow Chicken Farm (Pty) Ltd v Mediterranean Woollen
Mills (Pty) Ltd
1963 (1) SA 201
(N); Nieuwoudt v Joubert
[1988] 2
All SA 189
(SE).