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[2014] ZAWCHC 183
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Makumba v Minister of Home Affairs and Others (6183/14) [2014] ZAWCHC 183 (3 December 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 6183/14
DATE:
03 DECEMBER 2014
REPORTABLE
In
the matter between:
ESNAT
MAUREEN
MAKUMBA
...........................................................
Applicant
And
THE
MINISTER OF HOME AFFAIRS
.......................................
First
Respondent
THE
DIRECTOR GENERAL, DEPARTMENT
OF HOME
AFFAIRS
..............................................................
Second
Respondent
THE
MANAGER: REFUGEE RECEPTION OFFICE
DEPARTMENT OF HOME AFFAIRS,
CAPE TOWN
................
Third
Respondent
THE
CHIEF IMMIGRATION OFFICER
DEPARTMENT OF HOME
AFFAIRS
......................................
Fourth
Respondent
THE
REFUGEE STATUS DETERMINATION:
OFFICER
....................................................................................
Fifth
Respondent
THE
CHAIRPERSON, THE STANDING COMMITTEE
REFUGEE
AFFAIRS
...................................................................
Sixth
Respondent
COURT:
SALIE-SAMUELS, AJ
HEARD:
28 October 2014
DELIVERED:
03 December 2014
COUNSEL
FOR APPLICANT:
Adv. M Bishop
INSTRUCTED
BY:
Legal Resource Centre
COUNSEL
FOR RESPONDENTS:
Adv. N Mangcu-Lockwood
INSTRUCTED
BY:
Office of the State Attorney
JUDGMENT
TO BE DELIVERED ON 3
RD
OF DECEMBER 2014
SALIE-SAMUELS
AJ:
[1]
This is an application to review and set aside a decision of the
Fifth Respondent (The Refugee Status Determination Officer
–
hereinafter referred to as “the RSDO”) rejecting the
Applicant’s application for refugee status as manifestly
unfounded, and the decision by the Sixth Respondent (The Chairperson
of The Standing Committee Refugee Affairs – hereinafter
referred to as “the SCRA”) confirming the decision of the
Fifth Respondent. Further relief is sought by the Applicant
for
an order to substitute the Fifth Respondent’s decision with a
decision that the Applicant is entitled to refugee status
in terms of
Section 3(b) of the Refugees Act 130 of 1995. In the
alternative, the Applicant is seeking an order remitting
the matter
for reconsideration before a Refugee Status Determination Officer
within one (1) month of the date of the granting of
such an order.
[2]
The review is brought on procedural grounds in terms of Section
6(2)(c) of the Promotion of Administrative Justice Act 3 of
2000
(“PAJA”). The basis for the review application is
that (a) the applicant was not advised by the RSDO that
she had 14
days within which to make written submissions to the SCRA, and
therefore did not make any submissions to the SCRA; (b)
the SCRA
decision was taken despite the fact that the applicant had not
received adequate notice of a right to make submissions
to the SCRA;
(c) the RSDO failed to inform her of the grounds on which she could
claim refugee status, including discrimination
on the basis of sexual
orientation; (d) the Applicant had to rely on one of her country
women to assist her in the process of the
interview, and was
therefore not in a position to confide in the RSDO. This latter
complaint has, however, fallen way.
[3]
The facts briefly are that the Applicant, a Malawian national,
applied for asylum in Maitland between 24 and 27 January 2012,
shortly after her arrival in South Africa. She sets out in her
founding affidavit that at the time she was unaware that she
could
claim refugee status on the basis that she had been persecuted in
Malawi because of her sexual orientation. She was
also unsure
whether it was acceptable to be openly lesbian in South Africa, and
was afraid of how the officials at the Refugee
Reception Office would
react. When she attended her first interview, she completed her
application form, accompanied and
assisted by a friend of a friend
who was also from Malawi. Given the attitudes to homosexuality
in her experience she feared
revealing her status as her friends may
have stopped giving her assistance. For these reasons, when she
filled in her application
form, she did not state the true reason for
her flight from Malawi. Instead, she told the Department that
she had fled for
economic reasons; that she had lost her job and
hoped to make money in South Africa. When she returned for her
status determination
interview with the RSDO on 2 May 2013, she again
did not inform the RSDO that she had fled Malawi because of her
sexual orientation.
Instead, she kept up the pretence that she had
come to South Africa for economic reasons. The Applicant explains
that she had been
informed by other people waiting in the queue that
she should not change her story. She also did not want the RSDO to
think that
she was deceptive. She claims that she was only trying to
protect herself from further homophobic persecution. The interview
was
short and upon its conclusion, the RSDO handed the Applicant a
rejection letter. The applicant does not dispute that her application
was, on the facts that she had presented to the RSDO, rightly
rejected. She was also handed a document that informed her that the
decision would be sent to the SCRA for confirmation and that she had
the right to make representations to the SCRA. However, whilst
the
Applicant does not deny that she had received such a document, she
denies that the contents of the documents, particularly
her right to
approach the SCRA, were explained to her. Either way, it is
common cause that the Applicant signed for receipt
of both
documents. The RSDO’s decision was referred to the SCRA
on the same day, 2 May 2013. The SCRA upheld
the RSDO’s
decision on 4 September 2013. The Applicant was informed of the
SCRA’s decision on 15 November 2013
when she went to renew her
asylum seeker permit. The Applicant was then advised by a
friend to attend the offices of the
Legal Resources Centre (“LRC”),
her attorneys of record. It was when consulting with her legal
representatives that
the Applicant claims she first felt comfortable
to disclose the real reasons for her flight from Malawi. It was also
the first
time that she was informed that she was entitled to refugee
status because she was persecuted on the basis of her sexual
orientation
in her country of origin. Be that as it may, the
application for review is nonetheless essentially brought for the
reasons that
the administrative action by the Fifth Respondent was
procedurally flawed and redress is sought in terms of the
Promotion
of Administrative Justice Act, Act
3 of 2000 (“PAJA”).
In the course of relaying the basis for her complaint, that being,
that she had not been
afforded the internal recourse of making
submissions to the committee when reviewing the RSDO’s
decision, she also laments
on the persecution that she faced in
Malawi for the reason that she is lesbian and that she fears return
to her country of origin.
In her founding affidavit, the
Applicant concludes her frame of mind upon completion of the
application form as:
“
I hid the
real reason as I feared facing the same homophobic persecution in
South Africa that I had suffered in Malawi.”
[4]
In opposing the relief sought, Buyiswa Nini, a Refugee Status
Determination Officer employed by the Department of Home Affairs,
deposing for the First to Fifth Respondents, states that the
Applicant’s application for refugee status was rejected on the
basis that it sought asylum for economic reasons and thus her
application was manifestly unfounded. Attached to the answering
affidavit, are the RSDO’s decision and a notice that the
standing committee will review the decision of the RSDO officer
and
that representations may be done in writing to reach the SCRA not
later than fourteen working days after the date on which
the RSDO
decision was received by the applicant. These two documents,
attached to the answering affidavits as “BN3”
and “BN4”,
are signed on 02 May 2013 by the Applicant in acknowledgement of
receipt. Nini further states that
she personally explained the
contents of the notices to the Applicant, in particular Annexure
“BN4”. Paragraph 19 of
the Answering Affidavit reads:
“
I personally explained the
contents of annexure “BN4” to the applicant. I
explain this document to every applicant
whose application is found
to be manifestly unfounded, because applicants usually do not know
what the SCRA is or does. She
clearly understood English.
Throughout my interaction with her, there were no language
difficulties.”
Whilst the
Applicant in her founding affidavit denies that the documents were
explained to her she goes on to claim, in reply, that
though she had
acknowledged receipt of the notices, she did not understand the
documents nor that she distinguished between the
two documents.
These are in essence two distinct and different claims.
[6]
At this juncture, I accept that the Applicant was clearly notified of
her rights and that the effect of the notices was duly
explained to
her. There is no reason to reject the Respondents’
version and on motion that benefit must be afforded
to the
Respondents. Accordingly, I hold the view that the Applicant
was duly afforded this right. In my view it is
clear from the
evidence that the Applicant was made aware of the review of the
RSDO’s decision by the SCRA, and of her rights
to make
submissions in that regard. During argument Mr. Bishop conceded
that the claim of non-notification of the review
by the SCRA was
abandoned and accepted as having been honoured by the Respondents.
He also did not pursue the Applicant’s
complaint that the RSDO
failed to inform the Applicant that she would claim refugee status on
the ground of discrimination due
to sexual orientation and conceded
that this does not fall within the duties of the RSDO. This
pertinent issue, however,
is the nucleus of the application for
review before this Court and brought by the Applicant.
So
what is then left for this Court to determine?
[7]
Mr. Bishop submitted that nothing turned on the difference between
the parties’ versions, that being on whether the applicant
was
informed of her right to approach the SCRA or not. His contention is
not at all that the Applicant was not advised of her rights
of
review, but that the Applicant candidly admitted in her founding
affidavit that she did not tell the RSDO the true reasons for
her
having fled from Malawi. She stated further in her founding papers
that she is a lesbian and that she was assaulted and abused
in Malawi
because of her sexual orientation and that she came to South Africa
hoping to escape persecution. In her Founding
Affidavit, at
paragraph 54, the Applicant sets out the legal position relating to
homosexuality in Malawi. This has not been placed
into dispute by the
Respondents. The Applicant states that the government of Malawi has
amended Penal code 7:01 in December 2011
to criminalize act of
“indecent practices between females”. It provides
that any female person, who whether in
public or private commits any
act of gross indecency with another female
shall
be guilty of an offence and liable to prison
term of five years
.
She states further than even though on 5 November 2012 President
Joyce Banda announced that all laws in respect of homosexuality
would
not be prosecuted until a review of the laws had taken place, this
has not happened and the moratorium was lifted three days
after it
was announced.
[8]
For the Applicant, it is argued that had she presented those facts to
the RSDO when she applied for refugee status, this would
be a simple
case as she would be entitled to refugee status. The difficulty
is that, that is not what the Applicant told
the RSDO. She
brought the application for asylum from Malawi to South Africa for
economic reasons resulting in her application
rightly being
rejected. Now, for a different reason, one based on her sexual
orientation, she seeks redress from this Court
either substituting
the decision of the RSDO (confirmed by the SCRA) or remitting the
matter to the RSDO for reconsideration based
on a new disclosed
ground. The Applicant at the hearing of this matter essentially
changed the basis for the relief sought. The
Respondent essentially
answered the averments set out in the Founding Affidavit relating to
procedural unfairness. The averments
raised by the Applicant relating
to her sexual orientation and threat of persecution were she to
return to Malawi, is answered
by the Respondents to the effect that
the department has not had an opportunity to consider and investigate
the alleged circumstances
on which she now relies in the application
before this Court.
[9]
As regards seeking the relief of a substitution order, as our Courts
are entitled to do in terms of
Section 8(1)(c)(ii)(aa)
of PAJA, same
would only be done in exceptional circumstances whereby it will
substitute its own decision for that of a functionary
who has a
discretion under the Act. The common law principles
establishing the circumstances in which a court will be prepared
to
substitute an administrative decision were dealt with in
Johannesburg
City Council v The
Administrator, Transvaal, and
Another
1969 (2) SA 72
(T)
at page 76 thereof and defined as
follows:
[8.1]
where the end result is a forgone conclusion and it would be a waste
of time to order the functionary to reconsider the matter;
[8.2]
any further delay would cause unjustifiable prejudice to the
Applicant;
[8.3]
the original decision maker has exhibited bias or incompetence to
such a degree that it would be unfair to ask the Applicant
to submit
to its jurisdiction again;
[8.4]
the principle that such decision may be taken where the Court is as
well qualified to make that decision was added in
Gauteng
Gambling Board v Silver Star Development Limited
2005 (4) SA 67
(SCA).
[9]
At common law, correction or substitution is the exception rather
than the rule. The common law position is given statutory
expression in PAJA which permits a court to substitute or vary the
administrative action, or to correct a defect resulting from
the
administrative action, only in “exceptional cases”.
In
Gauteng Gambling
Board
supra
Heher JA indicated that remittal is almost always the prudent and
proper course. The reasons for this are not only constitutional
but also institutional in nature, since the administrator is
generally best equipped by the variety of its composition and
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. It follows therefore that this Court is not
qualified
or equipped to investigate the averments to support the
grounds of sexual orientation raised by the Applicant.
If
every applicant was entitled to have a second bite at the cherry and
make a new claim for refugee status after his or her original
claim
had been rejected, would the system not become unworkable?
[10]
The Applicant lied in her application for asylum when she stated that
the basis for her application is economic reasons.
The reasons
for lying are succinctly that she did not understand South African
law; what protection she could get; on what
grounds;
whether it was acceptable in South Africa to be a lesbian and was
afraid of how the refugee office would react to
the news. Her reasons
in a nutshell are that she prevailed under ignorance and moreover an
all pervasive fear of being persecuted
and ostracized as she claims
she had and would be in Malawi.
[11]
The Court questioned Counsel for the Respondents whether the
Applicant’s election to withhold the real reason in her
application for refugee status would mean that she must now
live by that lie. Further, does it mean that that she cannot
now rely on other facts to claim refugee status, even if such facts
are that of her sexual orientation and that the country that
she
would face to be deported to would be a country where homosexuality
is criminalized by law. This question was answered
by Counsel
in the affirmative. In response to this I refer to
relevant sections of the Refugees Act which contains
a clear
prohibition on returning anybody to a country where they will face
persecution on the basis of their sexual orientation.
Section 2
headed:
“
General
prohibition of
refusal
of entry, expulsion, extradition or return to other country in
certain circumstances”
reads
as follows:
“
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.”
[12]
Section 2 tracks South Africa’s international obligations under
Article 1A(2) of the 1951 Refugee Convention read with
the Optional
Protocol. Being homosexual qualifies as
“
membership
of a particular social group”.
This has been recognised by the United Nations High Commission for
Refugees (UNHCR) and numerous foreign courts, including
the Canadian
Supreme Court
[1]
, the House of
Lords
[2]
, and the Federal Court
of Australia. The UNHCR
[3]
at paragraph 8 thereof states that:
“
Sexual
orientation is a fundamental part of human identity, as are those
five characteristics of human identity that form the basis
of the
refugee definition: race,
religion,
nationality, membership of a particular social group and political
opinion. Claims relating to sexual orientation
and gender
identity are primarily recognized under the 1951 Convention ground of
membership of a particular social group…”.
Why
is there a need for our Court to take cognisance of the UNHCR’s
guidelines?
[13]
Reference to the above needs a brief understanding of what is the
legal position in relation to refugees. On 6 September
1993 the
South African Government and the United Nations High Commissioner for
Refugees (UNHCR) concluded an agreement in relation
to the policy
regarding asylum seekers and refugees in South Africa. After
that, in 1996, South Africa acceded to the United
Nations Convention
Relating to the Status of Refugees of 1951 and its 1967 Protocol.
In the same year, South Africa became
party to the Organisation of
African Unity Convention Governing the Specific Aspects of Refugee
Protection of 1969. In order
to give effect to these newly
acquired international obligations, Parliament enacted the
Refugees
Act 130 of 1998
. The Act provides a new regime and seeks to
reflect the principles contained in the various international
instruments.
The treaties have thus been incorporated into
domestic law
[4]
.
[15]
Section 3 -
“
Refugee
Status”
- is the operative
provision in determining refugee status. The section relevant
for the purpose of this judgment reads:
“
Subject
to ch 3, a person qualifies for refugee status for the purpose of
this Act if that person –
(a)
owing to a well-founded fear of
being persecuted by reason of his or her race, tribe, religion,
nationality, political opinion or
membership of a particular social
group, is outside the country of his or her nationality and is unable
or unwilling to avail himself
or herself of the protection of that
country, or, not having a nationality and being outside the country
of his or her former habitual
residence is unable or, owing to such
fear, unwilling to return to it;
[16]
Section 3 must be read together with Section 2 that entrenches the
international law obligation of non-refoulement. Section
6
provides that the Act must be interpreted and applied with due regard
to the two Conventions, the Protocol, the Universal Declaration
of
Human Rights and ‘
any other
relevant convention or international agreement to which the Republic
is or becomes a party’.
[17]
In
Minister of Home Affairs and Others v Watchenuka and Another
2004 (4) SA 326
(SCA)
2004 (2) BCLR 120
in para 25 the
Supreme Court of Appeal held:
“
Human
dignity has no nationality. It is inherent in all people –
citizens and non-citizens alike – simply because
they are
human. And while that person happens to be in this country –
for whatever reason – it must be respected,
and is protected,
by S10 of the Bill of Rights.”
[18]
The UNHCR guidance note
supra
states
that a common element in the experience of many homosexual applicants
is having to keep aspects and sometimes large parts
of their lives
secret. This may be in response to societal pressure, explicit or
implicit hostility and discrimination, and/or
criminal sanctions. The
consequence is that they often have limited evidence to establish
their homosexual identity or may not
be able to demonstrate past
persecution, in particular where they were not living openly as such
in the country of origin.
[19]
Section 7(2) of our Constitution requires all organs of state to
respect, protect, promote and fulfil the rights in the Bill
of
Rights. Section 9 states that everyone has the right not to be
unfairly discriminated against on the basis of one’s
sexual
orientation, Section 10 ensures the right to dignity and Section
12(1)(c) deals with the right to be free from all forms
of public and
private violence. Our Constitutional Court has held that, in
some circumstances, Section 7(2) imposes a positive
obligation on the
State and its organs to provide appropriate protection to everyone
through laws and structures designed to afford
such protection
[5]
[20]
In my view when new facts come to the attention of the Respondents
after an application for refugee status has been rejected
–
even if that rejection was correct on the facts originally presented
– there will
in some cases
be
an obligation on the Department to reconsider that application. This
would be the case where the following criteria are met:
(a) there is
a plausible explanation why the true facts were not originally placed
before the RSDO; (b) the new facts are credible
and are supported by
objective evidence or confirmed by witnesses; (c) if the new facts
are true. The principle of non-refoulement
is binding on our country
and is codified in
Section 2(a)
of the
Refugees Act. It
imposes an
obligation on South Africa not to surrender persons, whether by way
of extradition or deportation, where there are substantial
grounds
for believing that the person would be subjected to cruel and inhuman
treatment or punishment, or would face persecution
in the receiving
state.
[21]
Section 172(1)(b) of the Constitution provides that a court
considering a constitutional matter has the power to grant a “just
and equitable remedy”. The Constitutional Court has held
that the
“
remedial
power envisaged in Section 172(1)(b) is not only available when a
court makes an order of constitutional invalidity of
a law or conduct
under Section 172(1)(a). A just and equitable order may be made
even in instances where the outcome of a
constitutional dispute does
not hinge on constitutional invalidity of legislation or conduct.”
[6]
[22]
In terms of Section 38 of the Constitution the Court can grant
“
appropriate
relief”
whenever
a right in the Bill of Rights is infringed or threatened. Our
Courts thus have a wide power entitling it to “
forge
new tools”
in order to vindicate
the rights at stake. I am of the view that in providing the
Applicant to be re-interviewed, she is
afforded an effective
opportunity to vindicate her constitutional rights which appears to
be at stake.
[23]
The UNHCR international guidelines on sexual orientation (supra)
states at paragraph 38 that:
“
The
applicant will not always know that sexual orientation can constitute
a basis for refugee status or can be reluctant to talk
about such
intimate matters, particularly where his or her sexual orientation
would be the cause of shame or taboo in the country
of origin.
As a result, he or she may at first not feel confident to speak
freely or to give an accurate account of his or
her case. Even
where the intitial submission for asylum contains false statements,
or where the application is not submitted
until some time has passed
after the arrival to the country of asylum, the applicant can still
be able to establish a credible
claim.”
[24]
As for the burden of proof that rests upon the Applicant in matters
of this nature, I refer to
Van
Garderen NO v Refugee Appeal Board (unreported
decision, TPD case No 30720/2006 of
19 June 2007
which was cited with
approval by the Court in
Tantoush v Refugee Appeal Board
and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T)
. In
the former, Botha J stated:
“
In
my view by simply referring to the normal civil standard, the RAB
imposed too onerous a burden of proof. …. All this confirmed
my view that the normal onus in civil proceedings is inappropriate in
refugee cases. The inquiry has an inquisitorial element.
The burden is mitigated by a lower standard of proof and a liberal
application of the benefit of doubt principle.”
[25]
Ms. Mangcu-Lockwood argued that as the Applicant had committed lies
in the course of her refugee status application, her credibility
is
doubtful, wherefore this application for review ought to be dismissed
for her evident lack of credibility. In
Tantoush
v Refugee Appeal Board
(
supra
)
the Court dealt with an applicant who was denied asylum by the board
for the reasons that
, inter alia
,
it was evident from the Appellant’s testimony that he was not a
person who is used to the truth. At page 102 C – G
thereof the
Murphy J held that:
“…
.the
fact that a witness has been untruthful on one or other aspect on
another occasion does not mean that he was untruthful in
relation to
the enquiry at hand, or that his entire testimony should be rejected
on account of any admitted untruth. …..it
will usually not be
enough to rely almost exclusively on the evidence of the asylum
seeker only to reject his claim of fear of
persecution because he has
previously lied while living, for whatever reasons, on the margins or
in the shadows of a legal existence.”
[26]
Accordingly I find that the Applicant’s evident dishonesty as
hereinbefore addressed and in these prevailing circumstances
does not
disentitle her from the relief she now seeks. I am of the view
that the Department cannot return the Applicant without
further
inquiry. I am satisfied that, at the very least, that the RSDO
is obliged to re-interview the applicant to determine
the validity of
her new claim and she is entitled to any further processes in law
which may flow from that re-interview.
Also filed in support of
this application is the affidavit of Tania Maseti, an adult female,
residing in Old Cross Roads, Cape
Town who confirms that she is in a
romantic relationship with the Applicant. The RSDO may need to
confirm this information
and whether or not the Applicant will indeed
face persecution if she is returned to her country of origin and
collect other evidence
to support her sexual orientation and the
grounds for asylum flowing therefrom. It is my view that the
department would violate
its non-refoulement obligation by returning
the Applicant to his or her country of origin in these specific
circumstances.
27]
Whilst our Constitution is progressive and the legislature has
adopted international obligations to receive and treat in its
territory refugees in accordance with the standards and principles
established in international law, implementation on the ground
appears to adopt restrictive and narrow policies.
28]
Matters of this nature must be approached with caution however, for
unsuccessful asylum applicants will rush to Court pleading
different
grounds for asylum than those on which they originally relied upon,
similar to this review application. That is not to
say that this
decision risks the opening of floodgates to every unsuccessful
refugee applicant. However, I am of the view that
the Applicant
herein has established cogent grounds in that she has satisfied the
criteria which I refer to in paragraph 20
supra
to justify a re-interview and assessment of her application for
asylum. To afford the Applicant an opportunity to be
re-interviewed
in light of these facts would be in keeping with the
stance of a human rights culture and within the spirit of our
Constitution.
[29]
In the circumstances it is just and equitable to set the decision of
the RSDO aside and order that the Applicant be re-interviewed.
In the
result I make the following order:
(a)
The decision made by the
Fifth Respondent on 2 May 2013 is hereby reviewed and set aside;
(b)
The decision made by the
Sixth Respondent on 15 November 2013 is hereby reviewed and set
aside;
(c)
The Fifth Respondent is
ordered to re-interview and reconsider the Applicant’s
application within two (2) months of the date
of this order;
(d)
No order as to costs.
SALIE-SAMUELS,
AJ
1.
Canada (Attorney General) v Ward
[1993] 2
S.C.R 689
2.
Islam v Secretary of State for the home
Department; R v Immigration Appeal Tribunal and Another, Ex Parte
Shah
[1999] UKHL 20
;
[1999] 2 AC 629
;
[1999] 2 All ER 545
3.
UNHCR Guidance Note on refugee claims
relating to sexual orientation and gender identity, Geneva (2008)
4.
Tantoush v Refugee Appeal Board and Others
[2007] ZAGPHC 191
;
2008 (1) SA 232
(T)
5.
Glenister v President of the Republic of
South Africa and Others
[2011] ZACC 6
;
2011 (3) SA 347
(CC);
2011
(7) BCLR 651
at para 189, quoting Carmichele v Minister of Safety
and Security and Another (Centre for Applied Legal Studies
Intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC); 2001 (10) BCLR
(CC) at paragraph 44.
6.
Head of Department: Mpumalanga Department of Education and Another v
Hoerskool Ermelo and Another 2010 (2) A 415 (CC)
2010 (3) BCLR 177
at paragraph 97; In Minister of Safety and Security v Van der Merwe
and others
2011 (5) SA 61
(CC), the learned Justice Mogoeng (as he
then was) cited this authority with approval).