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[2014] ZAWCHC 134
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Radjabu v Chairperson of the Standing Committe for Refugee Affairs and Others (8830/2010) [2014] ZAWCHC 134; [2015] 1 All SA 100 (WCC) (4 September 2014)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 8830/2010
DATE:
04 SEPTEMBER 2014
Before:
The Hon. Mr Justice Binns-Ward
In
the matter between:
HUSSEIN
RADJABU
...................................................................................
Applicant
And
THE
CHAIRPERSON OF THE STANDING
COMMITTEE
FOR REFUGEE AFFAIRS
.........................................
First
Respondent
THE
REFUGEE STATUS DETERMINATION
OFFICER,
Z MZINYATI
N.O
.......................................................
Second
Respondent
THE
MINISTER OF HOME
AFFAIRS
............................................
Third
Respondent
JUDGMENT:
DELIVERED:
4 SEPTEMBER 2014
BINNS-WARD
J:
[1]
The
applicant, who claims to originate from Uvira, in the South Kivu
province of the Democratic Republic of the Congo, has applied
for the
review and setting aside of a decision taken under the
Refugees Act
130 of 1998
to refuse his application for asylum. The
application is brought in terms of s 6 of the Promotion of
Administrative
Justice Act 3 of 2000 (PAJA). He also seeks, in
terms of s 8(1)(c)(i)(aa) of PAJA, an order substituting the
impugned
administrative decision with one by the court granting him
asylum in South Africa. The Department of Home Affairs, which
is responsible for the administration of the
Refugees Act, abides
the
decision of the court in respect of the first mentioned relief, but
contends that if it is granted, the court should not accede
to the
applicant’s prayer for a substituting order, but should rather
remit the matter to the Department for consideration
afresh.
[1]
[2]
It is convenient to outline the applicable
statutory framework before dealing with the peculiar facts of the
case.
[3]
According to its long title, the
Refugees
Act, which
came into operation on 1 April 2000, is an Act to
‘give effect within the Republic of South Africa to the
relevant international
legal instruments, principles and standards
relating to refugees; to provide for the reception into South Africa
of asylum seekers;
to regulate applications for and recognition of
refugee status; to provide for the rights and obligations flowing
from such status;
and to provide for matters connected therewith’.
The preamble to the Act records that ‘South Africa has acceded
to the 1951 Convention Relating to 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’.
[4]
Section
2
of the
Refugees Act incorporates
the international law principle of
non-refoulement
.
[2]
The
principle is articulated in Article 33 of the 1951 Convention 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
’.
In the 1969 OAU Convention, the principle is expressed thus in
Article 11(3): ‘
No
person shall be subjected by a Member State to measures such as
rejection at the frontier, return or expulsion, which would compel
him to return to or remain in a territory where his life, physical
integrity or liberty would be threatened for the reasons set
out in
Article I, paragraphs 1 and 2
’.
Paragraph 2 of Article I of the 1969 OAU Convention provides: ‘
The
term “refugee” shall also apply to every person who,
owing to external aggression, occupation, foreign domination
or
events seriously disturbing public order in either part or the whole
of his country of origin or nationality, is compelled to
leave his
place of habitual residence in order to seek refuge in another place
outside his country of origin or nationality
’.
Paragraph (a) of
Section 2
of the
Refugees Act is
plainly predicated
on Article 33 of the 1951 Convention and paragraph (b) on the
aforementioned provisions of the OAU Convention.
[3]
[5]
Section 3
of the
Refugees Act provides
for
three categories of qualification for ‘refugee status’.
Although, for reasons that will become apparent,
the position is not
altogether clear, the current case appears to engage the second
category of refugee, defined in
s 3(b)
as ‘
a
person
[who] –
owing
to external aggression, occupation, foreign domination or events
seriously disturbing or disrupting 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 elsewhere
’. The
definition of the category of refugee in issue is, with only very
slight modification, based on the aforementioned
provisions of the
1969 OAU Convention.
[6]
Determining
whether a person qualifies for refugee status under this category
appears to me to require (i) an assessment by
the relevant
authority of the existence of objectively ascertainable circumstances
in the person’s country of origin, and
(ii) assuming that
it is satisfied upon such assessment that such circumstances
correspond with any of those stipulated in
the definition, a decision
whether their effect on the individual concerned has been such as to
force him or her to leave the place
where he or she ordinarily
resided. The qualifying criteria thus posit refugee status in
the category concerned being determined
with regard to the causative
effect of a given situation on an individual. The test is
predominantly objective in character,
but the required consideration
by the relevant authority of the causative effect of the
circumstances involved on the person concerned
introduces a
subjective element that demands that the individual’s personal
circumstances be taken into account. It
is through a
determination of the causative effect of the given circumstances on
the particular applicant for refugee status that
the authority
decides whether he or she has been ‘compelled’ on account
of their existence to leave his or her place
of habitual residence.
Thus it is conceivable that the existence of the same set of given
circumstances might sustain a conclusion
that they compelled A to
leave, but not B.
[4]
The
ultimate determination involves making a finding of fact concerning
the existence of the qualifying circumstances in
the country of
origin and their effect on the individual concerned and making a
value judgment based on those factual findings
as to whether the
individual concerned was forced by them to leave his or her habitual
place of residence. The notion that
the refugee was forced by
circumstances to leave his or her home that is inherent in the
definition means that where volition rather
than compulsion is the
predominant factor in the person’s decision to leave his or her
home, he or she does not qualify as
a refugee in terms of
s 3(b)
of the
Refugees Act. It
is in drawing the distinction that a
value judgment is called for. The facts of many cases will make
identifying the predominant
factor difficult. The assessed
credibility of the person claiming refugee status will be an
important determinant in the
decision-making.
[7]
The provisions of
s 6
of the
Refugees
Act, which
regulate how the statute must be interpreted and applied
enjoin a humanitarian approach to decision-making concerning refugee
status;
that is one which gives weight to the promotion of human
welfare and the alleviation of human suffering. This follows, I
think, because the Act must be interpreted and applied with regard to
the various conventions and declarations on human rights and
refugees
referred to in paragraphs (a) to (e) of the section. Thus, in
interpreting and applying s 3(b) of the Act,
premised as it is
on the 1969 OAU Convention, due regard must be had to the objects
that inspired the adoption of the Convention,
as set forth in the
preamble. Paragraph 2 of the preamble records the signatories’
recognition of ‘the need for
an essentially humanitarian
approach towards solving the problems of refugees’.
[8]
The applicant submitted an application for
asylum status to the refugee reception office at Cape Town in terms
of
s 21(1)
of the
Refugees Act. The
applicant’s
application was set out in the statutory form. I shall treat of
its content presently.
[9]
Section 21(2) of the Act required the
relevant refugee reception officer to ensure that the application
form had been properly completed
and that the applicant received the
necessary assistance for this purpose. The refugee reception
officer was also required
to conduct whatever enquiry he considered
necessary to verify the information furnished in the application.
In terms of the
statutory provisions the application was then passed
on to a refugee status determination officer.
[10]
In
terms of
s 24
of the
Refugees Act, the
refugee status determination
officer was required, amongst other matters, to ensure that the
applicant fully understood the procedures,
his rights and
responsibilities and the evidence presented. The officer
involved in the current case conducted a ‘hearing’
in the
form of an interview with the applicant on 3 March 2010.
[5]
In terms of s 24(3) of the Act, the officer was required, at the
conclusion of the hearing, to make one of the decisions
contemplated
in terms of s 24(3). The decision that was made was of the
nature contemplated in terms of s 24(3)(b),
that is to ‘reject
the application as manifestly unfounded’. In terms of s 1
of the Act, a ‘manifestly
unfounded application’ is
defined to mean ‘an application for asylum made on grounds
other than those on which such
an application may be made under this
Act’.
[11]
Section 24(4)
of the
Refugees Act requires
that when an application for asylum on the grounds is rejected for
being ‘manifestly unfounded’, (a) written reasons
have to be furnished to the applicant within five working days after
the date of the rejection or referral and (b) the record
of
proceedings and a copy of the reasons have to be submitted to the
Standing Committee for Refugee Affairs, established by section
9 of
the Act, within 10 working days after the date of the rejection or
referral. The reasons provided to the applicant stated
as
follows in the relevant parts:
Claim
You
claim that you left your country because you had family problems with
your uncle after the death of your mother due to natural
causes.
You were born in UVIRA and claim your mother who was married to a
Burundian had passed away due to natural causes.
And you claim you
had to leave as your uncle were referring you to Burundi and you had
no father as he also died f (sic) such
same natural causes.
You don’t want t (sic) go back to work here and say (sic) her
(sic) and fear to face your family.
Reason for
decision
Our
application for asylum has been made on grounds other than those on
which an application may be made under the Act.
[12]
The refugee status determination officer
reported to the Standing Committee as follows on 23 March 2009:
The
applicant is a male born in DRC he left his country because of family
problems. He claim (sic) he was discriminated (sic) by
his uncle
because his father was from Burundi and after the death of his mother
who was from DRC. His uncle was asking him
to go to Burundi
because his father was from there. He decided to leave in fear
of his uncle. That is the only reason
he came to SA.
[13]
The applicant failed to make any
submissions to the Standing Committee. This was hardly
surprising because he was informed
of his rights before the Standing
Committee by way of a pro forma document, which was in English, a
language that he barely understood.
He also does not appear to
have been informed of the date and place at which the Standing
Committee would consider his application.
On 14 July 2009, the
Standing Committee confirmed the rejection of the applicant’s
application. In so doing, it purported
to act in terms of
s 25(3)(a)
of the
Refugees Act. The
applicant was informed
of the Standing Committee’s decision by letter dated 26 March
2010. The letter was handed
to him in person when he came to
the Cape Town Refugee Office to renew his asylum seeker permit.
[14]
The applicant thereafter instituted the
current judicial review proceedings on 30 April 2010. The
grounds of review advanced
in the founding papers were that the
decision was –
1.
materially influenced by errors of law;
2.
not rationally connected to the information
before the decision maker;
3.
taken because irrelevant considerations
were taken into account and relevant factors were not considered;
4.
so unreasonable that no reasonable
decision maker could come to the same decision;
5.
unconstitutional and unlawful; and
because
he had not been
afforded an opportunity to deal with information that the Standing
Committee and the refugee status determination
officer had at their
disposal that was prejudicial to his application.
[15]
In his founding affidavit
jurat
30 April 2010, the applicant described the circumstances of his
departure from the DRC as follows:
30. I lived in Uvira
with my Father, Mother, two brothers and two sisters. My mother
is originally from Burundi and my father
is Congolese. At no
point have I ever lived in Burundi or any part of the DRC other than
Uvira.
31. My father worked
as a taxi driver in the city and my mother sold food produce at the
local market. At the time when I
fled the DRC I was in
secondary school at the Institut Mwanga D’Uvira.
32. My father was
politically active in our area, often engaging with the local police
to determine how they could stop the Banyamulenge
group from bringing
cows into the city. This was characteristic of the ethnic,
cultural and political tensions in my area.
33. In the summer of
2008 fighting between the Banyamulenge and the police started because
it was perceived that the police were
stealing the Banyamulenge’s
cows. In addition there was a great deal of fighting between
the Congolese army, the Rebel
forces and the Rwandese army in and
around my area.
34. Soon the
fighting in the city escalated into armed conflict in the streets.
My father, while driving his taxi, was pulled
over and killed by
rebel combatants who wanted to s[t]eal his car.
35. On the day my
father was killed I was attending school. One of our neighbours
came to the school to see me and to inform
me that my father was
dead. My neighbour further advised me to should (sic) flee the
city as so many others were at that
time. I initially attempted to
return to my home to find my family but the intensity of the fighting
in the streets of the city
prevented me from reaching my home.
I therefore made my way to the edge of the city from where I fled the
country, I initially
made my way to Tanzania and then eventually
found my way to South Africa.
36. While in South
Africa I heard from other refugees who fled Unvira that my brothers
are now living in Tanzania and that my sisters
are with our aunt in
Burundi. I have no knowledge of what happened to my mother.
37. I truly believe
that elements of the Banyamulenge are still active in Uvira and they
will identify me as my father’s son.
I further believe
that because I am of mixed descent I will be associated with the
invading foreign forces in the Eastern DRC.
38. Furthermore, the
intensity of the fighting that I witnessed and experienced, while
resident in Uvira leads me to strongly believe
that I cannot return
so long as this type of serious disturbance of the peace persists in
my area.
At para 47-48
of the affidavit he averred:
47.
I further respectfully submit that it appears from the Record of
Decision that the Second Respondent either chose to ignore
alternatively failed to take account the seriousness of the
disturbance of the peace in my area and the treatment of individuals
hailing from mixed ethnic descent.
48.
In the periods prior and following the decisions of the First and
Second Respondents there have been a number of reports generated
by
the United Nations Security Council detailing the extent of the
problems which persist in the Eastern DRC. I attach hereto
the
Twenty-seventh report of the Secretary-General
on
the
United Organisation Mission in the Democratic Republic of the Congo,
marked as
Annexure “HR5”
, and the
Report of
the United Nations High Commissioner for Human Rights on the
Situation of human rights and the activities of her Office
in the
Democratic Republic of the Congo,
marked as
Annexure “HR
6”
.
Annexure HR 5 to the
affidavit was a copy of the ‘Twenty-seventh report of the
Secretary-General on the United Nations Organization
Mission in the
Democratic Republic of the Congo’, dated 27 March 2009.
The report to the UN Security Council covered
the period 21 November
2008 to 24 March 2009. Paragraph 17-18 of the document reported
on the situation in South Kivu province
as follows:
17.
Overall, the situation remained calm in South Kivu during the
reporting period. In the Hauts Plateaux region, MONUC [the
United Nations Organization Mission in the Democratic Republic
of the Congo]
assisted the authorities of the
Democratic Republic of the Congo in negotiating with the leadership
of the Forces Républicaines
Fédéralistes (FRF)
the release of two Congolese officials, a provincial minister and an
Amani programme senior manager,
who had been abducted by the armed
group at Kamombo on 22 January. The two men were released on 20
February.
18.
The continued presence of FDLR in key areas remained a source of
concern. The joint FARDC-RDF operation against FDLR was
not
extended to South Kivu. FDLR elements are present in Mwenga
territory and control the area both militarily and economically.
FDLR also controls the mined and collects taxes from civilians in the
territory.
Annexure
HR 6 to the applicant’s founding affidavit was a copy of the
‘Report of the United Nations High Commissioner
for Human
Rights on the situation of human rights and the activities of her
Office in the Democratic Republic of the Congo’.
The
report to the UN General Assembly was distributed on 28 January
2010. Its content speaks to a sorry state of governance
in the
DRC generally, with widespread human rights abuse, an ineffectual
legal system and areas of general instability. North
Kivu was
expressly mentioned as a place where rebel militia movements were
active and government forces (FARDC) were guilty of
rape, murder and
pillaging. The failure of the DRC government to pay its armed
forces had led to mutinous uprisings and associated
extortion by
soldiers of money from local residents. An uprising at
Lubarika, 66 kilometres north of Uvira in South
Kivu was singled
out for mention.
[6]
[16]
Conformably with rule 53(1)(b) of the
Uniform Rules of Court, the applicant’s notice of motion in the
review application called
upon the respondents to file the
administrative record of proceedings with the registrar. The
respondents delivered a notice
of opposition to the review
application, but failed to file the administrative record or deliver
their answering affidavits.
When the matter was first called
before me on 17 April 2014 the respondents were represented by
counsel. The respondents’
position, as conveyed by their
counsel, was that they were prepared to concede the review, but
insisted that the applicant’s
asylum application be remitted
for reconsideration. I made it clear that I was not willing to
deal with the matter until
the record of the administrative decision
had been filed. The review application was thus postponed on
the basis of directions
given to render the matter ready for hearing
on the basis contemplated in terms of rule 53.
[17]
The administrative record included a copy
of the Form BI -1590 completed in respect of the applicant’s
application for asylum.
This is a document completed at the
stage that an applicant for asylum is interviewed by a refugee
reception oficer. The completed
form reflected that the applicant had
been born in Uvira, Burundi. This was manifestly incorrect as
Uvira is in the DRC on
the western shores of Lake Tanganyika, whereas
Burundi borders the eastern shore of the Lake. In addition, the
particulars
given of the applicant’s ‘country background’
were those of Burundi, not the DRC. These particulars included
the name of the capital city, Bujumbura, the other major cities,
Gitega, Bururi and Ngozi, the Burundian currency, the national
anthem
and the description of the national flag of Burundi. The
information provided in the form included the names of the
applicant’s parents (Sada Musa, mother, and Rajab Isa, father)
and gave his father’s nationality as ‘Burundi’
and
that of his mother as ‘Congo’. It stated the
applicant’s highest educational qualification as ‘Form
6’, which is a classification of school grade well known to be
peculiar to certain schools in England and in the former British
colonies.
[18]
In answer to the pro forma question ‘Why
are you applying for asylum?’ in section 4f of the Form
BI-1590, the following
answer was provided:
I
was born in Congo when my parents fled the wars and genocide in
Burundi as I grew up in Congo, the Congolese said that all
Rundi’s should go back to Burundi it was so hostile that they
even killed some Rundi who did not want to go to Burundi for
all
there (sic) life was in Congo.
During
the heated war by the Congolese they came to our house ready to kill.
There (sic) I fled, Congo immediately
The question in the
same section ‘Which measures did you take to solve your
problem?’ was answered as follows:
The
both govt of Congo + Burundi tried to resolve the matter through
dialogue. But the Congolese kept attacking
The answer given on
the form to the question as to why he did not wish to return to his
home country was: ‘
All my parents and family were killed
during the genocide in Burundi. Those left are also fled
(sic)
to other country’
.
[19]
According to the tenor of the Form BI-1590,
it was signed by the applicant on 25 February 2009. He declared
in the form that
he was a national of Burundi. An endorsement,
purportedly made by N. Nkani, qua refugee reception officer, dated 4
March
2010, at section 9 of the form recorded ‘
He
needs an Interpreter
’.
Anomalously, the decision reflecting the rejection of the application
by the refugee status determination officer
at section 10 of the form
bears the previous day’s date, 3 March 2009.
[20]
In a supplementary affidavit in his
judicial review application, delivered after the filing of the
administrative record by the
respondents, the applicant disavowed
much of the content of the BI-1590 form submitted in support of his
application for asylum.
He stated that it had been completed on
his behalf by a Kenyan woman whom he had encountered in the queue at
the refugee reception
centre. He said that she had spoken a
different form of Swahili to his and that she appeared to have made
up some of the
information entered on the form
[21]
The
record of the administrative decision also contained a copy of the
refugee status determination officer’s ‘recording
form’,
which appears to set out the officer’s note of an interview
with the applicant on 3 March 2009. The form
correctly reflects
the applicant’s name and date of birth. The dates
recorded on the form for the applicant’s
departure from his
country of origin and his arrival in South Africa are also consistent
with the narrative given by the applicant
in a supplementary founding
affidavit in which he describes his journey from the DRC to South
Africa, which included spending a
month or so at refugee camps in
Tanzania and Malawi, respectively. The form also records that
an interpreter was used.
The interpreter’s name and
address are given on the recording form as Mduvimama Papy of 27
Santos Street, Rugby. The
form reflects the applicant’s
address and telephonic contact details as being the same as those of
the interpreter.
If the information is correct it would suggest
that the so-called interpreter must have accompanied the applicant to
the hearing.
In his first supplementary founding affidavit the
applicant averred that the respondents had not provided him with any
interpretation
services. The applicant did say that he had been
assisted by his local friend, Richard, who also hailed originally
from Uvira.
Regulation 5(3)(c) of the Refugee Regulations would
suggest that a person closely identified with an applicant’s
interests
should not be used for interpretation purposes.
[7]
In the further supplementary affidavit delivered after the record of
decision had been filed, he did not deal with the indication
in the
record that an interpreter had been used in the interview.
[22]
The body of the notes made on the interview
recording form, which are illegible in part, read as follows:
Claim
that he was born in Uvira. Her (sic) mother
Congolese
went
with [???] to Burundi at 6 yrs. She left country
during
war
[???] to follow her husband [???] they had a problem
with her husband. [???] after 3 years they went back to Uvira.
UVIRA
He
stayed and studied and her (sic) mother
in
2008/08/ died
of natural causes.
After
the death as he was staying with his uncle were asking him to go to
Burundi as he is not from Congo. He claim he couldn’t
ask
the government as they are still occupied by Nkunda.[
[8]
]
Is
it the only reason you left the country was
your
family.
Yes.
What
is your father? Deceased.
Do
you have any problem with the people around?
No
only my family.
What
was your mother’s ethnicity?
HUTU.
Do
you wish to go back?
No,
there is suffering. I need to work also.
What
will happen if going back
I
will [?]find the same problem.
[23]
A
hearing before a refugee status determination officer is meant to be
inquisitorial in nature. In this respect I agree with
the
observations made by Murphy J in
Tantouch
supra,
[9]
at para 97-98.
It is immaterial that the learned judge was there dealing with the
nature of proceedings before the Refugees
Appeal Board.
Murphy J noted that his comments were premised on the following
provisions of the UNHCR Handbook, which
I consider to be equally
applicable to a hearing before a refugee status determination
officer:
196.
Thus, while the burden of proof in principle rests on the applicant,
the duty to ascertain and evaluate all the relevant facts
is shared
between the applicant and the examiner. Indeed in some cases, it may
be for the examiner to use all the means at his
disposal to produce
the necessary evidence in support of the application. Even such
independent research may not, however, always
be successful and there
may be statements that are not susceptible of proof. In such cases,
if the applicant's account appears
credible, he should be given the
benefit of the doubt.
197.
The requirement of evidence should thus not be too strictly applied
in view of the difficulty of proof inherent in the special
situation
in which an applicant for refugee status finds himself.
Allowance for such possible lack of evidence does not,
however, mean
that unsupported statements must necessarily be accepted as true if
they are inconsistent with the general account
put forward by the
applicant.
[24]
It is striking that the record of the
interview contains no indication of an appreciation by the status
determination officer of
the obvious differences between the account
given in the BI-1590 Form and that in the interview. These
called out for exploration
in the context of the inquisitorial
approach required in such hearings. It is plain that the
refugee status determination
officer’s decision was premised
entirely on what seems to have been a very superficial interview,
with no attention whatsoever
to the report apparently given by the
applicant to the refugee reception officer.
[25]
No
reasons were given for the decision of the Standing Committee to
uphold the decision of the refugee status determination officer.
It is significant, however, in my view, that notwithstanding the
aforementioned obvious defect in proceedings before the refugee
status determination officer, the Committee did not exercise its
powers to, of its own accord, make such further enquiry and
investigation
into the matter being dealt with as it might deem
appropriate, or request the applicant to appear before it and to
provide such
other information as it might deem necessary.
[10]
[26]
After the record of the administrative
decision had been filed in the judicial review proceedings, the
applicant supplemented his
founding papers, as he was entitled to do
in terms of rule 53(4). In his further supplementary founding
affidavit he averred:
4.
I deposed to the founding affidavit in 2010. I now supplement that
affidavit in light of the additional documents given to my
legal
representatives in April 2014. I am advised, also, that
Respondents’ representative has asked in papers filed
with the
Court that I provide more detail about my background and
circumstances.
5.
My mother, Sada Zena, is Burundian. My father, Radjabu Issa, is
Congolese. I have two older sisters: Asiya and Mwavuwa.
I
am the last-born.
6.
Growing up, I lived with my mother, father and two sisters in
Kavimvira, a village on the outskirts of Uvira, close to the northern
shores of Lake Tanganyika and the border with Burundi. I attach
a map. Kavimvira is somewhat rural. We had chickens.
People grow vegetables. They fish.
7.
My only other family is my aunt Zena Musa (my father’s sister)
who has four children. By 2008, when I left my homeland,
she
and her children were no longer in DRC. I believe they had
already fled to Burundi or to Tanzania.
8.
In 2008 I was 18 years old and still at school. I had two more
years to go before matriculating. My two older sisters
had
finished school, and were at home, unemployed. My mother was
also unemployed; she made some money selling food in front
of our
house.
9.
My father worked as a taxi driver. He was a well-known person,
because he was the
nyumba10
– the person in charge ten
houses, the DRC equivalent of a South African pre-1994 civic ‘street
committee’.
10.
I was young when I fled my country, but what I understand of the
political troubles in my area is this: for years the rebel
militia
were everywhere, and they were killing people. Many of our
fathers were killed. Young men in their twenties were
afraid and
concerned, because the government did nothing to protect us. They
armed themselves and formed the mayi-mayi. Later
they were
chased out and the Banyamulenge rebels took effective control.
11.
The Banyamulenge rebels targeted my father because he was the street
leader, and they believed that he had information about
the mayi-mayi
which they wanted. When my father refused to assist them, they
killed him.
12.
I do not know exactly how my father was murdered. On the day of
the murder I came home from school to find that nobody
was there, and
the house had been ransacked. The head of household in a
neighbouring house, a man whom I know as Juma, came
to me when he saw
that I had returned from school. He was the person who told me that
my father had been killed, and that my mother
had fled with my two
sisters. I do not recall exactly which month this was in 2008.
13.
I recall that I stayed with Juma for about two weeks. However,
I was deeply unhappy living in his house. His wife
did not
treat me well. I heard that it was probable that my mother and
sisters had fled over the water to Tanzania, and so
I decided to
follow.
14.
I left Juma’s house and travelled by boat, for one full day and
one full night. When I reached the Tanzanian shore
I went
straight to the Nyarugusu refugee camp.
15.
I searched for my mother and sisters but they were not there.
[27]
The applicant also pointed out some
inaccuracies in his founding affidavit. He said that his
founding affidavit had incorrectly
stated that his neighbour came to
find him at school to tell him of his father’s death, whereas
in fact the neighbour had
only informed him of the event when he
arrived home to find the house deserted. He also stated that
his founding affidavit
had incorrectly stated that he had left the
city of Uvira immediately, whereas in fact he had stayed with the
neighbour, Juma,
for two weeks before leaving. Yet another
error was the suggestion in his founding affidavit that he had
brothers; whereas
he does not. He stated that he was unable to
‘definitively account’ for how these errors occurred.
He ascribed
it as possibly having been due to the difficulty of
having to communicate with the law clinic staff without the benefit
of an interpreter.
[28]
The Department delivered an answer in the
form of an affidavit deposed to by Mr. Nyangane Elija Mathebula, the
Acting Office Manager
of the Cape Town Temporary Refugee Facility.
[29]
He explained the failure of the respondents
to timeously produce the administrative record as required in terms
of rule 53.
It would appear that the Department’s
officials are reliant on prompting from the State Attorney in this
regard. The
implication in the answering affidavit is that the
attorney in the State Attorney’s office dealing with the
current matter
had been under the misapprehension that an extract
from the administrative record provided to the applicant’s
legal representatives
before the institution of the judicial review
proceedings had comprised the entire record. Mr Mathebula’s
affidavit
was supported by a confirmatory affidavit from an attorney
in the office of the State Attorney, Cape Town. I must say
that there is no excuse for any such misapprehension by the attorney
of record of the respondents because it was obvious that the
documents provided by some unknown person before the institution of
proceedings could not have comprised the entire record.
The
failure to provide the full record timeously is to be deprecated.
According to the applicant’s attorney, who is
engaged in many
similar cases, it has been a commonly encountered omission in such
matters. So much so, that the University
of Cape Town Law
Clinic has taken to instituting review applications in matters such
as this availing of rule 6, rather than the
ordinarily indicated rule
53.
[30]
I have taken note of Mr Mathebula’s
explanation. He was not the incumbent of his current position
during the period
that non-compliance by his office with its
obligations to provide the administrative records for judicial review
purposes appears
to have been endemic. He has given the court
to understand that the problem will not continue under his management
of the
Cape Town office. It is to be hoped that this
undertaking will be reflected in reality. It does not seem to
me that
the reaction to the historic problem by the Law Clinic in the
use of rule 6 instead of rule 53 is well-advised. A court will
in most cases be severely handicapped from dealing properly with the
judicial review of an administrative decision in the absence
of the
administrative record of decision. In the event that the
failure by an administrative authority to produce such records
when
required is an entrenched course of conduct, it is a matter that
should be addressed by obtaining appropriate directions from
the
court and by reporting the conduct to the Public Protector and the
Public Service Commission.
[31]
The answering affidavit further drew
attention to the numerous inconsistencies in the information provided
by the applicant.
I have inferred that this was done to support
the submission that the matter of the applicant’s refugee
status was not one
that the court should determine, but rather a
question best dealt with by remittal to the statutory authority.
[32]
There is no doubt that the decisions made
by the refugee status determination officer and the Standing
Committee fall to be set
aside. The proceedings before the
status determination officer were unlawful because a proper
interpreter was not used and
because the officer plainly did not
effectively undertake the inquisitorial role that the statute
contemplates. He also manifestly
did not have regard to the
information set out in the BI-1590 form and thus did not take
obviously relevant considerations into
account. These
shortcomings should have been apparent to the Standing Committee.
Its failure in the circumstances to
make further enquiry and
investigation into the matter, or request the applicant to appear
before it was manifestly unreasonable.
Its decision to uphold
the determination of the refugee status determination officer without
such further investigation was one
that a reasonable decision-maker
could not have made.
[33]
As mentioned, the applicant has asked this
court to make a decision granting him asylum. That course, as
s 8(1)(c)(ii)(aa)
of PAJA confirms, is indicated only in
exceptional circumstances. The relevant principles were
summarised by Heher JA
in
Gauteng
Gambling Board v Silverstar Development Ltd and Others
2005 (4) SA 67
(SCA) at para 28-29:
[28]
The power of a court on review to substitute or vary administrative
action or correct a defect arising from such action depends
upon a
determination that a case is 'exceptional':
s 8(1)(c)(ii)(aa)
of
the
Promotion of Administrative Justice Act 3 of 2000
. Since the
normal rule of common law is that an administrative organ on which a
power is conferred is the appropriate entity to
exercise that power,
a case is exceptional when, upon a proper consideration of all the
relevant facts, a court is persuaded that
a decision to exercise a
power should not be left to the designated functionary. How that
conclusion is to be reached is not statutorily
ordained and will
depend on established principles informed by the constitutional
imperative that administrative action must be
lawful, reasonable and
procedurally fair. Hefer AP said in
Commissioner, Competition
Commission v General Council of the Bar of South Africa and Others
2002 (6) SA 606
(SCA):
'[14]
. . . (T)he remark in
Johannesburg City Council v Administrator,
Transvaal, and Another
1969 (2) SA 72
(T) at 76D - E that “the
Court is slow to assume a discretion which has by statute been
entrusted to another tribunal or
functionary” does not tell the
whole story. For, in order to give full effect to the right which
everyone has to lawful,
reasonable and procedurally fair
administrative action, considerations of fairness also enter the
picture. There will accordingly
be no remittal to the administrative
authority in cases where such a step will operate procedurally
unfairly to both parties.
As Holmes AJA observed in
Livestock
and Meat Industries Control Board v Garda
1961 (1) SA 342
(A) at
349G
“
.
. . the Court has a discretion, to be exercised judicially upon a
consideration of the facts of each case, and . . . although
the
matter will be sent back if there is no reason for not doing so, in
essence it is a question of fairness to both sides”.
[See also
Erf One
Six Seven Orchards CC v Greater Johannesburg Metropolitan Council
(Johannesburg Administration) and Another
[1998] ZASCA 91
;
1999 (1) SA 104
(SCA)
at 109F - G.]
[15]
I do not accept a submission for the respondents to the effect that
the Court a quo was [not] in as good a position as the
Commission to
grant or refuse exemption and that, for this reason alone, the matter
was rightly not remitted. Admittedly Baxter
Administrative
Law
at 682 - 4 lists a case where the
Court is in as good a position to make the decision as the
administrator among those in which
it will be justified in correcting
the decision by substituting its own. However, the author also says
at 684:
“
The
mere fact that a court considers itself as qualified to take the
decision as the administrator does not of itself justify usurping
that administrator's powers . . .; sometimes, however,
fairness to the applicant may demand that the Court should take
such
a view.”
This,
in my view, states the position accurately. All that can be said is
that considerations of fairness may in a given case require
the court
to make the decision itself provided it is able to do so.'
[29]
An administrative functionary that is vested by statute with the
power to consider and approve or reject an application is
generally
best equipped by the variety of its composition, by experience, and
its access to sources of relevant information and
expertise to make
the right decision. The court typically has none of these advantages
and is required to recognise its own limitations.
See
Minister of
Environmental Affairs and Tourism and Others v Phambili Fisheries
(Pty) Ltd; Minister of Environmental Affairs and Tourism
and Others v
Bato Star Fishing (Pty) Ltd
2003 (6) SA 407
(SCA) at paras [47] -
[50], and
Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Others
[2004] ZACC 15
;
2004 (4) SA 490
(CC)
(2004 (7) BCLR 687)
at
paras [46] - [49]. That is why remittal is almost always the prudent
and proper course.
As
noted in
Ntshangase v MEC for Finance, KwaZulu-Natal, and Another
2010 (3) SA 201
(SCA), at para 22, ‘The facts of each case
will determine whether it is fair and practical to remit the matter
to the
original functionary, or for the court to substitute its own
decision for that of the original functionary’.
[34]
Ms
Harvey
,
who appeared for the applicant, referred me to a number of judgments,
including several given in this court, in which orders reviewing
and
setting aside decisions refusing applications for asylum had been
accompanied by orders directing the Department of Home Affairs
to
grant the applicants refugee status. I have considered some of
those cases. As to be expected, their determination
turned on
the peculiar facts of each case. In each of them the court was
satisfied that the applicant was lawfully entitled
to asylum.
Issues such as the prejudice occasioned by delay (cf.
Ruyobeza
v Minister of Home Affairs
2003 (5) SA 51
(C),
2003 (8) BCLR 920
, at 65C-H (SALR)) cannot
justify the granting of asylum in circumstances in which it is not
sufficiently clear that an applicant
qualifies for refugee status in
terms of
s 3
of the
Refugees Act. In
Tantoush
¸
for example, the substitution order sought was granted for a number
of reasons; demonstrated bias by the decision-maker
and prejudicial
uncertainty occasioned by delay were mentioned in the judgment.
But, ‘most importantly’, as the
learned judge noted, he
was able on the evidence before him to determine that the applicant
had ‘a well-founded fear of persecution’
by reason of his
political opinions, and therefore also able to determine that the
applicant qualified for refugee status in terms
of s 3(a) of the
Act.
[11]
[35]
In the current case, as I have illustrated
earlier in this judgment, various materially inconsistent versions of
the circumstances
of his departure from his habitual place of
residence have been given by the applicant. I do not think that
he can necessarily
be criticised for this because he has testified
more than once that he has been prejudiced by a lack of interpreter
facilities,
not only in his communication with the relevant
authorities in terms of the
Refugees Act, but
also in his dealings
with his legal representatives at the University of Cape Town Law
Clinic. It is not clear to me on any
of the versions apparent
on the papers that the applicant has made out a case that would
qualify him for refugee status in terms
of s 3(a) of the Act.
[36]
On one of the versions given he claims to
fear victimisation at the hands of the Banyamulenge, but it is not
clear that this is
well-founded. In that version the applicant
testified that his father had been killed by Banyamulenge rebels who
thought
he had information about the Maï Maï (sometimes
spelled ‘Mayi Mayi’) militia. He said nothing that
would give reason to suppose that the Banyamulenge might think he
also possessed such information. In another version he stated
that his father had taken issue with the Banyamulenge bringing cattle
into the town. The situation with the Banyamulenge
and their
effect on the applicant is quite obscure. I could find no
mention of the Banyamulenge in either of the United Nations
reports
annexed to the applicant’s founding papers, or indeed in the
179 Oxfam Briefing Paper, dated 27 January 2014 handed
in by counsel
from the bar. In the respondents’ answering affidavit, Mr
Mathebula indicates that his research into
the Banyamulunge indicates
that the word is a term used to describe ethnic Tutsis who live
predominantly in the High Plateau region
of South Kivu Province.
It is not clear to me that this would include Uvira, which is on the
shores of Lake Tanganyika. Mr
Mathebula says that the Tutsis
are a minority ethnic group in South Kivu. The applicant has
described himself as a Hutu in
the form BI-1590, and elsewhere as
being of mixed ethnicity.
[37]
It
would be quite improper for a court to decide a case like this on the
basis of its own research into the situation in South Kivu.
Such an undertaking would be quite distinguishable from the sort of
reliance on position papers put before the court as annexures
to the
papers mentioned earlier in this judgment.
[12]
Clarification of the apparent inconsistencies in the applicant’s
description of the circumstances of his departure
from Uvira is an
exercise properly to be undertaken in the context of the hearings
contemplated by
ss 24
and
25
of the
Refugees Act. Such
investigation is also appropriate to determine whether changed
circumstances in South Kivu in the nearly six years since the
applicant
left the area might qualify him as a
sur
place
refugee.
[13]
(That the
latter aspect also be investigated follows in my view on the
non-refoulement
provisions
entrenched in terms of s 2 of the Regugees Act, mentioned
earlier.
[14]
[38]
I think this court is entitled to accept it
as notorious that the political situation in the eastern parts of the
Democratic Republic
of the Congo is unstable and that the attendant
unrest has caused serious disturbance or disruption to public order.
The
contradictory factual accounts of the effect of the situation on
the applicant personally make it unclear, however, whether it can
be
found that it compelled him to leave in the sense required for him to
qualify as a refugee in terms of
s 3(b)
of the
Refugees Act.
[39
]
The defective character of the proceedings
before the refugee status determination officer and Standing
Committee are in large part
to blame for the lack of clarity. But
the manner in which the applicant’s story was related in the
papers before court
did not improve matters.
[40]
In the result I have concluded that the
applicant’s application for asylum will have to be remitted to
be considered afresh
by a different refugee status determination
officer. It is evident that directions should be given to
ensure that further
delay and bureaucratic inefficiency is minimised
and that the Department of Home Affairs ensures that the applicant is
assisted
at any hearing before the status determination officer and,
if necessary, thereafter before the Standing Committee or Refugee
Appeals
Board, by an interpreter proficient in the French and English
languages.
[41]
The following order is made:
1.
The decisions made by the refugee status
determination officer (Zamuxolo Mzinyati) on or about 3 March 2009 to
refuse the applicant’s
application under the
Refugees Act 130
of 1998
for asylum in South Africa and by the Standing Committee for
Refugee Affairs on 14 July 2009 confirming that refusal are reviewed
and set aside.
2.
The applicant’s application for
asylum is remitted for determination afresh in terms of the
Refugees
Act after
a hearing of the nature contemplated in terms of
s 24
of the said Act, read with regulations 5 and 10 of the Refugee
Regulations (Forms and Procedure), before a different refugee status
determination officer.
3.
The third respondent is directed to extend
the applicant’s asylum seeker permit in terms of s 22 of
the said Act on the
same terms and conditions as currently applicable
pending the final determination of the applicant’s application
for asylum
pursuant to this Order.
4.
The hearing contemplated in terms of
paragraph 2 of this Order shall take place at Cape Town within 30
days of the date of this
Order, and on not less than 10 days prior
written notice to the applicant at his residential address and at the
offices of the
University of Cape Town Law Clinic marked for the
attention of Mr. Justin de Jager.
5.
The deponent to the respondents’
answering affidavit, Mr. Nyangane Elija Mathebula, alternatively, the
Office Manager for
the time being of Cape Town Temporary Refugee
Facility, is directed to ensure -
(i)
that the refugee status determination
officer assigned to hold the hearing contemplated in terms of
paragraph 2 of this Order is
furnished with a complete copy of the
papers in the judicial review application in High Court case no. WCC
8803/10, as well as
a copy of this judgment at least five days before
the hearing; and
(ii)
that an interpreter proficient in the
English and French languages is available for the purpose of
assisting the applicant at the
aforementioned hearing before a
refugee status determination officer.
6.
Without derogating in any way from the duty
of the refugee status determination officer to conduct a fair and
non-adversarial enquiry
at the hearing, he or she is directed, in
particular, to investigate the nature of the Banyamulenge and their
activities in the
South Kivu province of the Democratic Republic of
the Congo at or about the time of the applicant’s departure
from his habitual
place of residence and migration to South Africa
and to permit the applicant to make submissions on the officer’s
prima facie
findings in that regard.
7.
The aforementioned Mr. Nyangane Elija
Mathebula, alternatively, the Office Manager for the time being of
Cape Town Temporary Refugee
Facility, is directed to file a copy of
the record of the hearing together with a copy of the decision at the
office of the Registrar
of the High Court, Cape Town, clearly marked
to indicate the court’s case reference number in the judicial
review proceedings
(Case no. 8803/10), within 10 days of the date of
the decision to be made in terms of
s 24(3)
of the
Refugees Act.
8.
The
State Attorney, Cape Town, is directed
to serve a copy of this judgment and Order on the aforementioned Mr.
Nyangane Elija Mathebula,
alternatively, the Office Manager for the
time being of Cape Town Temporary Refugee Facility within 5 days of
the date of this
Order and to file proof of compliance with this
direction at the office of the Registrar and within the same period
deliver a copy
of such proof to the applicant’s attorneys of
record.
9.
The third respondent is directed to pay the
applicant’s costs of suit.
A.G.
BINNS-WARD
Judge
of the High Court
Dates of hearing:
17 April and 19 June 2014
Date of judgment:
4 September 2014
Before:
Binns-Ward J
Applicant’s
counsel: Suzanna Harvey
Applicant’s
attorneys: University of Cape Town Law Clinic
Respondents’
counsel: Kevin Warner
Respondents’
attorneys: State Attorney, Cape Town
[1]
The
applicant cited three respondents, namely the Chairperson of the
Standing Committee for Refugee Affairs, the Refugee Status
Determination Officer who dealt with his application for asylum, and
the Minister of Home Affairs. They were cited as the
first,
second and third respondents, respectively.
[2]
Section
2
of the
Refugees Act provides
:
General
prohibition of refusal of entry, expulsion, extradition or return to
other country in certain circumstances
Notwithstanding
any provision of this Act or any other law to the contrary, no
person may be refused entry into the Republic,
expelled, extradited
or returned to any other country or be subject to any similar
measure, if as a result of such refusal, expulsion,
extradition,
return or other measure, such person is compelled to return to or
remain in a country where-
(a)
he or she may be subjected to persecution on account of his or her
race, religion, nationality, political opinion or membership
of a
particular social group; or
(b)
his or her life, physical safety or freedom would be threatened on
account of external aggression, occupation, foreign domination
or
other events seriously disturbing or disrupting public order in
either part or the whole of that country.
[3]
Sections
2(b) of the Act has been substituted in terms of A33/2008,
which is not yet in operation.
[4]
Thus
the fact that the applicant’s counsel was able to direct
attention to the existence of a number of previous matters
in which
persons from the Uvira area of the Democratic Republic of Congo had
been recognised as refugees (
Katabana
v Chairperson SCRA and others
WCC case no. 25061/11, unreported judgment of Davis J, dated 14
December 2012;
Amissi
v
Chairperson
SCRA and others
WCC
case no. 10969/13, unreported judgment of Mantame J dated
22 October 2013; and
Mubala
v
Chairperson
SCRA and others
WCC case no. 10971/13, unreported judgment of Fourie J,
dated 29 October 2013) is of limited assistance in determining
whether the applicant should have been granted asylum. The
applicant in
Katabana
appears, in any event, to have been categorised as a refugee within
the meaning of s 3(a) (i.e. persecution by reason of
religion),
rather than s 3(b). In
Mubala
,
the judgment recorded that ‘[i]t is not disputed that the
applicant…was compelled to flee his country of birth’.
The necessary causative link between the well known serious
disruption to public order in the area and the applicant’s
departure from his ordinary place of residence there was thus taken
to have been established in that case. Counsel did
not provide
me with a copy of the unreported judgment in
Amissi
.
[5]
Regulation
10 of the Refugee Regulations (Forms and Procedure), promulgated in
terms of s 38 of Act 130 of 1998 and published
under GN R366 in
GG 21075 of 6 April 2000 as amended by GN R366 in GG 21075 of 6
April 2000 provides:
Hearing
before Refugee Status Determination Officer
(1)
In complying with the provisions of section 24 of the Act, the
Refugee Status Determination Officer will conduct a non-adversarial
hearing to elicit information bearing on the applicant's eligibility
for refugee status and ensure that the applicant fully understands
the procedures, his or her rights and responsibilities and the
evidence presented.
(2)
The Refugee Status Determination Officer may-
(a)
verify the identity of any interpreter present;
(b)
verify the identity of any dependants seeking refugee status based
on their relationship to the applicant;
(c)
receive evidence; and
(d)
question the applicant and any witness.
(3)
The applicant must respond to any questions asked by the Refugee
Status Determination Officer, including-
(a)
information regarding his or her identity and the identity of any
dependants seeking refugee status based on their relationship
to the
applicant;
(b)
reasons for seeking asylum; and
(c)
any grounds that might exclude the applicant from refugee status
under section 4 of the Act.
(4)
The applicant may-
(a)
have counsel or a representative present, at no cost to the
government, and subject to the conditions of subregulation 6;
(b)
present witnesses; and
(c)
submit affidavits of witnesses and other evidence.
(5)
At the end of the initial hearing, the applicant's counsel or
representative shall have an opportunity to make a statement
or
comment on the evidence presented, subject to the Refugee Status
Determination Officer's discretion regarding the length of
such
statement or comment. Comments may also be submitted in writing.
(6)
At the conclusion of the initial hearing, the Refugee Status
Determination Officer will advise the applicant of the date and
time
to return to the Refugee Reception Office to conclude the hearing
and receive the decision on the application.
[6]
The
courts’ approach to reports of this nature enjoyed attention
in
Tantoush
v Refugee Appeal Board and Others
[2007] ZAGPHC 191
;
2008
(1) SA 232
(T), at para 19, where Murphy J noted: ‘Courts are
generally reluctant to rely upon the opinion or findings of a court
in a foreign jurisdiction about factual issues not ventilated, tried
or tested before them. All the same, it is not unusual in
human
rights and refugee cases for courts to take judicial notice of
various facts of an historical, political or sociological
character,
or to consult works of reference or reports of reputable agencies
concerned with the protection and promotion of human
rights. In
Kaunda
and Others v President of the Republic of South Africa and Others
2005 (4) SA 235
(CC) ([2004]
10 BCLR 1009)
in para 123 Chaskalson
CJ, commenting on reports by Amnesty International and the
International Bar Association on the human
rights situation in
Equatorial Guinea, said as follows:
Whilst
this Court cannot and should not make a finding as to the present
position in Equatorial Guinea on the basis only of these
reports, it
cannot ignore the seriousness of the allegations that have been
made. They are reports of investigations conducted
by reputable
international organisations and a Special Rapporteur appointed by
the United Nations Human Rights Committee. The
fact that such
investigations were made and reports given is itself relevant in the
circumstances of this case.
These
dicta have relevance beyond the narrow inquiry into whether it is
permissible to rely on the findings of the SIAC [Special
Immigration
Appeals Commission] in relation to the activities of the LIFG. They
sanction reliance upon the decision of the SIAC,
and the reports
referred to in the decision, when assessing the general human rights
situation in Libya, which I do later in
this judgment.’
[7]
Regulation
5 of the Refugee Regulations provides:
5
Interpretation
(1)
Where practicable and necessary, the Department of Home Affairs will
provide competent interpretation for the applicant at
all stages of
the asylum process.
(2)
When it is not practicable for the Department of Home Affairs to
provide an interpreter and interpretation is needed, the
applicant
will be required to provide an interpreter. The interpreter may not
be a representative or employee of the country
in which the
applicant fears persecution or harm.
(3)
In cases where subregulation 5(2) applies, the applicant will be
given at least 7 days' advance notice that-
(a)
the applicant is required to bring an interpreter to the interview
before the Refugee Reception Officer or Refugee Status
Determination
Officer;
(b)
the interpreter must be competent to translate a language spoken and
understood by the applicant, to a language spoken and
understood by
the Refugee Reception Officer or Refugee Status Determination
Officer and visa versa;
(c)
the interpreter cannot be the applicant's attorney or
representative, a witness testifying on the applicant's behalf, or a
representative or employee of the country in which the applicant
fears persecution or harm;
(d)
failure without just cause to provide a competent interpreter may
constitute a violation of terms of the asylum seeker permit,
but
will not prejudice adjudication of the claim to refugee status once
interpretation is obtained; and
(e)
any delays caused by failure to provide a competent interpreter,
after the 7-days' advance notice required by this subregulation
5(3)
has been given, will not count toward the 180-days' adjudication
period for purposes of eligibility for employment or study
authorisation.
[8]
The
content of the Secretary-General’s report, dated 27 March
2009, a copy of which was annexed as annexure HR5 to the applicant’s
founding affidavit makes reference to a ‘Laurent Nkunda’
as the former head of an apparently militant group known
as the
CNDP. The report notes that Nkunda was ousted as leader of the
group on 5 January 2009. The report states
that the Congolese
authorities announced on 22 January 2009 that Nkunda had been
arrested in Rwanda. The report also mentions
that as at 26
January 2009 5800 of a declared total of 7000 CNDP ‘elements’
had been integrated into the Congolese
armed forces (FARDC).
Para 7 of the report stated that ‘
On
4 February, CNDP issued a statement which reaffirmed the end of
hostilities and announced the transformation of CNDP into a
political movement. The statement called for the resumption of
talks with the Government, the granting of amnesty for CNDP
members
and the establishment of a new ministry for internal security and
intercommunity relations. Separately, at a meeting
of the
bilateral “Four plus Four” Commission held on 6 and 7
February, the Democratic Republic of the Congo and Rwanda
agreed to
establish a technical team to elaborate the modalities for the
extradition of Mr. Nkunda to the Democratic Republic
of the Congo.
’
[9]
See
note 6
above.
[10]
See
s 25(2)(c) and (d) of Act 130 of 1998.
[11]
See
Tantoush
supra, at para 125-128.
[12]
Note 6.
[13]
A
sur
place
refugee is a person who was not a refugee when they left their
country, but who becomes a refugee due to changes in circumstances
in their home country or as a result of their actions while in the
foreign country; Kahn and Schreier,
Refugee
Law in South Africa
,
Juta (2014) at pp.29-30..
[14]
At
para [4].