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[2015] ZAWCHC 131
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M.B.A and Others v Director-General of the Department of Home Affairs and Others (7705/2013) [2015] ZAWCHC 131 (27 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No: 7705/2013
DATE:
27 FEBRUARY 2016
In
the matter between:
[M……..]
[B……] [A……] & 205
OTHERS
.........................................................................
Applicants
And
THE
DIRECTOR-GENERAL OF THE
DEPARTMENT
OF HOME
AFFAIRS
......................................................................
First
Respondent
THE
MINISTER OF HOME
AFFAIRS
.................................................................
Second
Respondent
THE
ACTING MANAGER OF THE CAPE TOWN
REFUGEE
OFFICE
...................................................................................................
Third
Respondent
THE
REFUGEE APPEAL
BOARD
........................................................................
Fourth
Respondent
THE
STANDING COMMITTEE FOR REFUGEE
AFFAIRS
...............................
Firth
Respondent
JUDGMENT: 27 FEBRUARY 2015
STEYN,
J
1.
This
application for urgent interim interdict relief was launched on 17
May 2013 by a group of asylum seekers. They seek an order
directing
the respondents to extend and/or renew forthwith at the Cape Town
Refugee Office (‘CTRO’) the applicants’
permits in
terms of s 22 of the Refugees Act, 130 of 1998, ('the Act’) for
a period of no less than three months, and that
the permits be
re-extended and/or renewed by the respondents as necessary for
periods of no less than three months; not to be denied
or refused an
extension and/or renewal because any of the applicants originally
applied for asylum at a Refugee Reception Office
(‘RRO’)
other than Cape Town; not to be endorsed with a condition that the
applicant in question is to report to a
RRO other than Cape Town; and
not to be denied or refused an extension and/or renewal due to the
absence of an applicant’s
file from the CTRO.
2.
Applicants
ask that the above order should remain valid until the resolution of
each applicant’s application for asylum, including
any internal
appeals in terms of the Act, or until all legal disputes challenging
the closure of the Cape Town Refugee Reception
Office, (‘CTRRO’),
have been finally resolved, whichever occurs first.
THE SCALABRINI CENTRE CHALLENGES:
3.
The
CTRRO was established in 2000 and has been inundated with
applications. The Scalabrini Centre in Cape Town is a non-profit
organisation which assists, promotes and protects the interests of
migrant communities and displaced people The challenges referred
to
in par 2 above, initially related to an application before this court
of Scalabrini Centre, Cape Town and Others v The Minister
of Home
Affairs and Others, case no 11681/12,
the
first Scalabrini application, and later the Scalabrini Centre, Cape
Town and Others v The Minister of Home Affairs and Others,
case no
8132/14,
the
second Scalabrini application.
4.
First
respondent initially closed the CTRRO to new applicants for asylum on
30 May 2012, where after the Cape Town Temporary Refugee
Facility,
the ‘CTTRF', operated in Cape Town. This decision was taken on
review by the Scalabrini Centre, applying in Part
A of the
application for interim relief and in Part B for final relief. Part A
sought to compel respondents to keep the CTRRO functioning
pending
the final determination of Part B, thereby protecting asylum seekers,
pending the fmalisation of legal challenges to the
closure of the
CTRRO.
5.
In
July 2012 Davis J granted the Part A interim relief requested in the
first Scalabrini application and in March 2013 the Part
B relief was
granted by Rogers J, The Rogers J judgment was taken on appeal to the
SCA by the respondents. In September 2013 the
SCA set aside the first
closure decision of the CTRRO in Minister of Home Affairs v
Scalabrini Centre
2013 (6) SA 421
(SCA).
First
Respondent was allowed to reconsider the closure decision. Parts of
the Rogers J judgment were approved, such as the finding
that first
respondent was required to consult various stakeholders before taking
a decision to close a RRO and that the failure
to do so rendered the
closure decision unlawful and invalid.
6.
On
31 January 2014 the first respondent again decided to close the
CTRRO. In May 2014 the Scalabrini Centre and Others launched
a second
application under case no 8132/14, challenging the latest closure
decision. The applicants request that the second closure
decision be
declared unlawful and unconstitutional and that respondents be
directed to re-open and maintain a fully functional
RRO in or around
the Cape Town area.
7.
The
grounds for review of the second closure decision include the
submission that the closure decision was irrational, unreasonable,
unconstitutional, in violating the rights of those affected, and
unlawful in that it did not comply with s 8(1) of the Act, which
requires of first respondent to establish as many RROs as are
necessary for the purposes of the Act.
8.
The
relief sought in the application before me is interim relief, pending
the finalisation of the second Scalabrini application.
9.
The
applicants have all been issued with s 22 permits in terms of the
Act. Their applications are at various stages of completion.
They all
applied elsewhere than in Cape Town for refugee status, but have in
the meantime moved to Cape Town. Their s 22 permits
have been
extended over an extended period of time at the CTRRO or the CTTRF,
although they were issued with their permits elsewhere
than in Cape
Town.
10.
In
view of the latest challenge to the decision to close the CTRRO
permanently, the applicants submit that if they are not protected
by
the interim interdict requested, they will suffer irreparable harm as
they will have to abandon their lives in Cape Town to
relocate to
places closer to operational RROs, currently located in Pretoria,
Musina, and Durban. Applicants maintain that if the
second Scalabrini
application is ultimately upheld, the applicants will have suffered a
huge loss unnecessarily.
11.
If
the interim order is granted, the result will be that the respondents
will continue to provide the applicants in Cape Town, instead
of at
the other RROs mentioned, with the services which they are granting
and have been granting to other asylum seekers over an
extended
period of time, only for as long as it takes for the applicants'
asylum applications to be determined or until the second
Scalabrini
application is finally determined.
OPPOSITION:
12.
The
respondents oppose the relief sought. An affidavit was filed by Mr
Mathebula, the third respondent, the Acting Office Manager
of the
CTTRF, situated on the Foreshore of Cape Town. He maintains that
respondents have not refused to renew s 22 permits of asylum
seekers
who applied elsewhere than in Cape Town for refugee status and states
‘
upfront’
that since the
launching of this application the respondents have been extending
from time to time the s 22 permits of applicants
as well as others
whom the applicants’ attorneys have added to a growing list, on
the understanding that the said s 22 permits
are to remain valid
until the date of hearing of the application before me.
13.
Respondents
submitted that the relief that requires adjudication is whether or
not the applicants should be directed to report to
the original RRO,
where they applied for refugee status, for the purpose of an
interview or the hearing of an appeal, relating
to their refugee
status. The files pertaining to their applications are kept at the
original RROs. Applications cannot be finalised
in the absence of the
files pertaining to the relevant applications.
14.
Respondents
maintain that, in the absence of an application to compel the
respondents to transfer the applicants' relevant files
to the CTRRO,
the relief sought by applicants, that they not be directed or
compelled to report to their original RROs, is legally
incompetent.
15.
Respondents
insist that the applicants’ claims are partly an attempt to
abuse the refugee system and that some applicants
may have come to
Cape Town to evade the processing of the asylum applications by
dragging matters out and that they now thwart
the respondents’
attempts to deal with their asylum applications, by refusing to
return to the offices where their applications
may be finalised.
16.
This
skeptical view of applicants’ motives by respondents, repeated
vigorously in argument on their behalf, is equally vigorously
denied
by applicants. It was argued on behalf of applicants that, in fact,
the majority of applicants have applied for the transfer
of their
files to Cape Town from the original RROs. Applicants submitted in
argument that they would
‘
support
any order that their
files should be transferred to Cape Town, since they agree that if
they wish to have their permits extended
on an interim basis in Cape
Town, they must be prepared to have their asylum applications
finalised in Cape Town. The applicants
claim, in essence, that their
asylum applications should be finalised in Cape Town, rather than in
Pretoria, Durban or Musina,
where they may have applied originally.
THE REFUGEE ACT:
17.
In
South Africa an asylum seeker is a person who has fled his or her
country of origin and is seeking recognition and protection
as a
refugee in the Republic of South Africa, and whose application is
still under consideration. In case of a negative decision
on his
application, he/she has to leave the country voluntarily or he/she
will be deported. A refugee is a person who has been
granted asylum
status and protection in terms of the relevant provisions of the Act.
18.
The
Republic of South Africa has acceded to the 1951 United Nations
Convention relating to the status of refugees, as well as certain
other human rights instruments and in so doing has assumed certain
obligations to receive and treat in its territory refugees in
accordance with the standards and principles established in
international law. The Government of the Republic of South Africa
therefore has an obligation to grant protection to refugees and other
persons in need of protection.
19.
Section
2 of the Act prohibits the refusal of entry into the Republic, or the
expulsion, extradition or return to any other country
if, as a result
of such refusal or return or other measure, such person is compelled
to return to a country where he/she may be
subjected to persecution
on account of race, religion, nationality, political opinion or
membership of a particular social group
or where his/her life,
physical safety or freedom would be threatened on account of external
aggression, occupation, foreign domination
or other events seriously
disturbing public order in the country or part of such country
20.
A
person qualifies for refugee status if he/she has left his home
country and has a well-founded fear of persecution for reasons
of
race, religion, nationality, political opinion or a membership in a
particular social group or if person is in need of protection,
when
it is established that his/her removal to his/her home country would
subject such person to danger or to a risk to his/her
due to external
aggression, occupation, foreign domination or other events seriously
disturbing public order in the country or
part of such country,
resulting in a risk of cruel and unusual treatment or punishment to
such person.
21.
The
act prescribes that the Minister is responsible for the
administration of the act and that he/she may delegate his/her powers
and duties under certain circumstances.
22.
Section
8 of the Act provides that the Director-General of the Department of
Home Affairs may establish as many Refugee Reception
Offices (‘RRO’)
in the Republic as he/she, after consultation with the Standing
Committee, (for Refugee Affairs) regards
as necessary for the
purposes of this act. The Standing Committee, with detailed powers
and duties and with prescribed qualifications
and composition, must
function independently and without bias.
23.
The
determination of and eligibility procedure of applications by asylum
seekers is set out in s 21 to 24 of the Act. Generally
a person
enters the Republic of South Africa through a port of entry, claims
to be an asylum seeker and applies, personally, in
accordance with
prescribed procedures for asylum. He/she will be required to furnish
certain documentation and information and
the applicant's data and
image will be captured in the refugee system. An enquiry may be
conducted to verify the supplied information.
24.
Pending
the outcome of the application in terms of s 21, referred to above,
the Refugee Reception Officer must issue the applicant,
in terms of s
22, with an asylum seeker permit, allowing the asylum seeker to
sojourn in the Republic temporarily, subject to conditions,
which
will be endorsed on the permit, while the process of his/her status
determination, pending a final decision on the application,
is in
progress. The s 22 permit may be extended, or the conditions amended,
or it may lapse or be withdrawn under certain circumstances.
The
holder of s 22 permit has the right to work and study in South Africa
and is protected against deportation to his country of
origin.
25.
Section
24 deals with the determination of the application for asylum refugee
status by the Refugee Status Determination Officer.
(‘RSDO’).
Further information may be required or a consultation held. The RSDO
should proceed with a fair adjudication
of the claims for asylum, and
must provide reasons for the decisions. The RSDO must, on conclusion
of the status determination
hearing grant asylum, or reject the
application, or refer any question of law to the Standing Committee
for Refugee Affairs (SCRA).
Sections 25 and 26 (Chapter 4) deal with
procedures relating to appeals and reviews in case of the rejection
of applications.
THE FACTS
26.
As
stated, the applicants are asylum seekers who reside in the vicinity
of Cape Town and who originally applied for asylum at RROs
outside of
Cape Town. They are Non-Cape Town asylum seekers, as opposed to
asylum seekers who first applied in Cape Town. The Cape
Town asylum
seekers are still being assisted by respondents with the extensions
of their s 22 permits.
27.
It
is required of asylum seekers/applicants to return to the RROs, often
on several occasions over extended periods of time, to
extend their s
22 permits. The CTRRO was, at the time of its last closure decision,
in January 2014, the only RRO for more than
a thousand kilometers.
RROs were operational only in Pretoria, Musina and Durban. RROs that
were previously established at Johannesburg
and Port Elizabeth, had
been closed by January 2014. The closure of the Port Elizabeth
Refugee Reception Office has been successfully
challenged in the
Eastern Cape High Court and an appeal to the decision has been argued
at the SCA. A judgment by the SCA is anticipated.
28.
It
is alleged and not convincingly challenged, that the applicants are
generally indigent and that they lack the support structures
which
would enable them to travel to the far-away RROs on a regular basis.
The closure of the CTRRO will impact extremely negatively
on the
lives of all Non-Cape Town asylum seekers such as the applicants, as
they will be compelled to abandon their lives in Cape
Town to move to
a place closer to an RRO, a thousand kilometers or more, away.
29.
In
Scalabrini Centre, Cape Town and Others v The Minister of Home
Affairs and Others,
2013 (3) SA 531
(WCC), Rogers
J,
dealing with the second part of the first Scalabrini application, the
challenge to the first closure decision of the CTRRO, commented
as
follows:
‘The
resultant decision is also grossly unreasonable in its effect.
Thousands of asylum seekers will either have to abandon
the idea of
residing in the Cape Town area while their asylum applications are
assessed, or they will need to spend time and money
to travel on a
number of occasions to RROs in the north of the country. If they have
work in Cape Town, they may lose it because
of the need to take off
three or four days for each attendance at an RRO. If they have
dependants, they would need to leave them
in the care of others or
travel with them. ’
30.
In
the same matter Davis J, in dealing with the first part of the
application, the interim order to compel respondents to render
services to applicants for the issuing of s 22 permits pending the
challenge to the closure decision of the CTRRO, referred to
the
asylum seekers as a
‘
vulnerable
group’
and
commented that requiring of them to travel back and forth to renew
their permits would require significant resources, which
they do not
possess, leading to an untenable burden and hardship.
31.
The
permits of the applicants are only valid for a limited period of
time. When the permits expire, the asylum seeker/applicant
must
return to the original refugee office to have the s 22 permit
extended. The applicants have approached the Refugee Office
in Cape
Town for extensions of their s 22 permits; they have been refused or
denied extensions because they first applied for refugee
status at
refugee offices outside Cape Town. They submit that they are entitled
to s 22 permits to be issued at the CTRRO pending
the finalisation of
either the Scalabrini application or the finalisation of their asylum
applications, inter alia
on
the basis of
‘
explicit
promises’
by
the respondents or on the basis of law.
32.
In
support of their claim of
‘
promises’
made, applicants
maintain in their founding affidavit, dated May 2013, that when the
respondents in the (first) Scalabrini application,
including the
first, second and fifth respondent in this application, sought leave
to appeal, the parties agreed that the applicants
would not oppose
the application, but, pending the outcome of the appeal and any
further appeal, the respondents would comply as
follows: 'the Cape
Town temporary facility will continue to assist s 22 permit holders
in the Mure to extend their s 22 permits
even if the permits were
issued elsewhere in the Republic.’
(Par
11, p 10 and JGC 2, p 105/106)
33.
It
was recorded in a letter from the Legal Resources Centre dated 22
April 2013, (JGC 2, p 106), that pending the outcome of the
appeal,
renewals of s 22 permits for existing applicants for asylum
(irrespective of the RRO where they may have applied) will
be
accepted and processed at the CTRRO. On behalf of the respondents the
contents of the letter were noted and it was commented:
‘
We
agree to the agreement referred to in the above letter.'
34.
The
plight of non-CT asylum seekers is evident. This court is asked to
determine what should happen to these asylum seekers pending
the
finalisation of the challenges to the last closure decision of the
CTRRO.
35.
Pending
the hearing of this application the parties have agreed, albeit
without prejudice, to several postponements, during the
course of
which the number of asylum seekers increased, also by agreement.
Postponements commenced by agreement as early as May
2013. The last
postponement was ordered on 2 December 2014. At each postponement
respondents agreed and were willing (in principle)
and able to
provide s 22 permit extensions to the listed asylum seekers. The
postponement orders provide that the s 22 permits
of the applicants
set out in the list annexed, are to be extended to the date of
hearing of the application, irrespective of whether
the asylum
seekers concerned have already received an extension. There is no
evidence that administrative or capacity problems
were experienced as
a result of the agreed orders, or that the absence of the files of
the asylum seekers created administrative
or other difficulties. The
orders did not require of the applicants to apply for the transfer of
their files to Cape Town, or to
present themselves to the original
RROs where they submitted their applications for the processing of
their main applications.
36.
The
Refugee Reception Officer opens the asylum seeker’s file when
he/she presents himself or herself to an RRO applying for
asylum and
when he/she is issued with a s 22 permit. On behalf of applicants it
was pointed out that the respondents place great
weight and reliance
on the need for asylum seekers/applicants to return to the original
RROs where their files are kept. It was
argued by applicants that
these files are not immobile objects; that the files usually comprise
of between 20 or 30 pages, which
may easily be transferred between
offices by fax, mail or courier. In this age of technological
advances I would think that access
through the internet by officials
in one office, to the contents of files in other centres, may be
facilitated with relative ease.
37 It certainly seems a lot more convenient, cost
effective and practical for a file to be transferred to the place
where an asylum
seeker resides, rather than for the asylum seeker to
travel, repeatedly, to the original RRO where the file is kept.
Applicants
maintain in their affidavits that they all wish to have
their refugee application files transferred to be finalised in Cape
Town,
but it is noted that, due to the office closure decision, the
respondents are not granting applications for the transfer of files.
Respondents maintain that, save for some exceptions, most of the
applicants have not lodged a formal application for the transfer
of
their files prior to the launching of the application.
38.
It
is undisputed that asylum seeker applications take years to finalise,
while s 22 permits have to be extended every few months,
with the
result that an asylum seeker frequently has to attend at RROs only
for the purpose of extending a permit. I agree that
to compel them to
travel to far-away offices in these circumstances is illogical and
unreasonable. I take note that it has been
recorded that s 22 permits
may be extended without a file at an RRO, other than the one where
the application was launched, as
has happened in this case.
39.
At
the hearing of the matter I asked the parties to consider an agreed
or proposed order that would address the resolution of the
applicants’ applications for asylum, while they remained based
in Cape Town and while their files remain at other centres
where they
originally applied for asylum. This request opened a flood gate of
new and repeated written submissions and proposals.
40.
Applicants
proposed an order that respondents be directed to transfer to the
CTRRO (or the temporary facility, as it wants to be
known) the files
of all the asylum seekers listed in the annexure to the order, in
respect of such files as are not at the facility
at present and
renewing or extending the s 22 permits of the applicants.
41.
Respondents
reiterated that the CTRRO had been closed to applications for asylum
other than in cases of asylum seeker applications
launched at the
CTRRO on or before 30 June 2012. First respondent’s recorded
closure decision provided that the services
which will still be
provided at the CTTRF will be the granting of a limited once-off
extensions of no less than 6 months of s 22
permits to the holders of
those permits who applied for them at an RRO other than the CTRRO,
subject to the express condition that
they report to the RRO at which
they originally applied for asylum.
42.
First
respondent’s decision also provided that the CTTRF will
consider applications for the transfer to the Facility of the
files
of those who applied for asylum at a RRO other than the CTRRO, in
exceptional circumstances only, and on a case- by-case
basis, while
the CTTRF is winding down.
43.
However,
despite the first respondent’s closure decision and the
extensive reasons advanced therefore, the applicant’s
22
permits were extended on several occasions for more than 6 months at
a time, by agreement between the parties. It was allegedly
expected
of the applicants to attend at the RROs where they had originally
applied in order to finalise their refugee status applications
or to
apply for the transfer of their files to the CTTRF, but they
allegedly 'simply refused’
to
do so.
44.
On
behalf of applicants this submission was denied. It was argued, quite
correctly, that there is no indication on the documentation
filed
that such a condition was imposed on any applicant. This allegation
by respondents ignores the hardship experienced by applicants
in
travelling to remote offices. It was contended by applicants that
many of them had returned to the offices of their original
applications, with no successful result. The stance of respondents
also ignores the distinct possibility that it may have been
expected
of some applicants to apply for assistance at RROs that had been
closed.
45.
According
to respondents only 6 applicants applied for the transfer of their
files. This comment is denied on behalf of applicants
and it was
reiterated that the
‘
vast
majority' of applicants had requested the transfer of their files,
but their requests were refused or not carried out.
46.
The
comments and objections relating to probable infra-structure or
capacity problems experienced by respondents causing a burden
on them
if files were transferred, are not supported by evidence. In any
event the hardship suffered by applicants in compelling
them to
travel long distances, repeatedly, at risk of detention and
deportation, to obtain the permits they require to survive,
is much
more evident and onerous.
47.
Respondents
submit that the court cannot competently order the transfer of files
as such an order will require the additional allocation
of public
funds, ultimately resulting in the infringement of the doctrine of
the separation of powers. In addition, strategic and
policy
objectives, leading to the office closure decision would be ignored.
48.
Respondents
quoted extensively from dicta
relating
to the competency of the court to grant certain orders where the
subject of the order is one of policy, such as how many
RROs should
be in existence or whether such offices may be closed, based on
aspects such as administrative effectiveness and budgetary
constraints. Respondents submit that the transfer of
‘
thousands’
of files, (an
exaggeration), will result in the re-opening of the CTRRO. This does
not seem evident in the circumstances of the
matter. Similarly the
complaint lodged that the numbers of applicants will increase, is
without foundation, as the number has been
set by agreement.
49.
I
think the decisions relied on are not applicable to the matter before
me, in as much as I am dealing with an interim application
relating
to extension of permits, which may be facilitated by the transfer of
files, where respondents themselves have requested
applicants to
apply for the transfer of such files, thereby indicating that they
would be in a position to deal with the transfer
of those files,
albeit under particular circumstances.
50.
After
setting out detailed reasons why the court could not order the
transfer of the files of the applicants, for factual and legal
considerations, respondents keep repeating that the applicants have
abused the asylum system by refusing to report back to their
original
application offices or to
‘
apply
for the transfer of their files’. There is simply no proof or
even any conclusive indication that the refugee system
is being
undermined by the actions or behavior of any of the applicants. How
the applicants can be blamed for not applying for
their files, (which
they deny) while respondents try to convince the court that the
transfer of the files should not be ordered
as same will result in
capacity and structural problems, beats logic. Respondents seem to
ignore that it was alleged and argued
that the applicants are in fact
applying for the transfer of their files.
51 Allegedly with the view of accommodating the
applicants in this matter, the respondents are prepared to agree to
an order that
the respondents are directed to extend and/or renew the
applicants’ permits in terms of
s 22
of the
Refugees Act at
the
Cape Town Temporary Refugee Facility for a period of no longer than
three (3) months from the date of this order; and an order
that the
applicants shall, within the above period of three months, report
back to their offices where they originally applied
for asylum, for
the purpose of finalizing their applications for asylum.
52.
Respondents
propose that they will furnish the applicants’ attorneys on 27
February 2015 with a schedule setting forth the
dates and times
according to which the applicants must present themselves at the
CTTRF for the purpose of obtaining their extensions
as referred to
above, in order to avoid a stampede of applicants seeking the
extension of their
s 22
permits.
INTERIM ORDER:
53.
In this matter
the court is merely requested to grant an interim interdict pending
the outcome of instituted proceedings. The interdict
is aimed at the
preservation of the status quo
relating
to the applicants and the permits issued to them by respondents,
pending the final determination of their rights. Part
of the
evaluation by the court, is the aspect of the prospects of success of
the application launched by applicants, but I do not
have to make any
finding of a final nature.
54.
In order to
succeed with an application for relief of an interim nature the
applicants have to satisfy me, on a balance of probability,
of a
clear legal right, enforceable in law, that forms the subject matter
of the main action that applicant seeks to protect, which
could be
established prima facie,
even
though open to some doubt. This right applies to basic human rights
including fundamental rights protected by the Constitution
of the
Republic of South Africa.
55.
It has been
said that such a right may exist even in the event that the presiding
officer hearing the interim application may assess
the prospects of
success of the main claim as weak. The stronger the prospects of
success, the less the need for the balance of
convenience to favour
applicant. It has been held that questions of balance of convenience
arise only if an applicant for an interdict
has not established a
clear right, but only a prima facie
right
open to some doubt, so that when the different requirements are
assessed and an applicant has established a strong prima facie
right, the court may,
in exercising its discretion, place less emphasis on the other
requirements.
56.
The court will
weigh up the likely prejudice to the applicant if the temporary
interdict is refused and the refusal is later shown
to have been
wrong, in the sense that applicant’s disputed contentions are
eventually upheld, against the likely prejudice
to the respondent if
the temporary interdict is granted and the grant of the interdict is
later shown to have been wrong, in the
sense that applicant’s
disputed contentions are eventually dismissed.
57.
A further
requirement is the reasonable or well-grounded apprehension of harm
or injury if the interim relief is not granted and
the applicant
ultimately succeeds in establishing the right claimed. The words
‘
harm’
and
‘
injury
are understood in a
wide sense to include prejudice suffered by an applicant following
the infringement of his rights. The harm
must be caused by the
respondent or it must be in the respondent’s power to prevent
the harm.
58.
The balance of
convenience should favour the granting of interim relief in cases
where an applicant has not established a clear
right, but a prima
facie
right
open to some doubt. It must also be shown that the applicant has no
other satisfactory, reasonable or adequate remedy in the
circumstances.
59.
The process of
evaluation of the different elements requires a holistic approach to
the contents of the affidavits, balancing facts
and assessing the
probabilities in the case of disputes of fact. In this case the
respondents have chosen not to deny certain facts
or respond to
applicants’ replying affidavit, despite being granted an
opportunity to do so. The grant or refusal of an interdict
is a
matter within the discretion of the court hearing the application and
depends on the facts peculiar to each case and the right
the
applicant is seeking to protect. Ultimately the court exercises a
discretion as to whether or not to grant an interim interdict.
60.
It was argued
on behalf of applicants that the elements of a prima facie
right, irreparable
harm, no adequate alternative remedy and balance of convenience have
been proved by them. I agree.
61.
It was also
argued convincingly that, in assessing the prospects of success in
the second Scalabrini application, this court could
merely peruse the
application to be satisfied that, even if doubt may exist, the
application is not without merit and a prospect
of success exists,
warranting an interim interdict. This court does not have to and
cannot reach a final decision on the merits
of the matter and in any
event the full application is not before this court.
CONCLUSION:
62.
I believe the
applicants, as asylum seekers, have established the conclusion that
they have prima facie
rights,
although it may be argued that such rights may be open to some doubt.
The right which s 21(1) confers on new asylum seekers
to apply for
asylum in accordance with prescribed procedures to a Refugee
Reception Officer at any RRO has been adversely affected
by the
decision to close the CTRRO. This was also the finding of Rogers J in
the Scalabrini matter referred to previously, and
this aspect of the
decision was not disturbed.
63.
The effect of
the closure decision of the CTRRO is that the applicants/ asylum
seekers will be compelled to leave the Cape Town
area where they have
established their homes. This result impacts on their rights to
dignity and to property and to just administrative
action, in terms
of the provisions of the Constitution. It is irrational,
unjustifiable and inequitable that the Department will
grant s 22
permits to CT asylum seekers but not to non-CT asylum seekers. It
would be inhumane to force them to leave Cape Town,
prior to finality
being reached on the closure decision.
64.
Orders have
been granted on several occasions, by agreement, albeit without
prejudice, which prohibit respondents from refusing
the granting of
permit extensions in Cape Town to asylum seekers who first applied
outside of Cape Town.
65.
I believe the
applicants have made out a sufficient case for the purposes of the
granting of interim relief, as requested. I will
not make an order
relating to the transfer of files, in view of the strong argument
against such order on behalf of respondents
and since such an order
was not requested in the Notice of Motion. However, I advise the
respondents to reconsider this aspect
as I believe that ultimately it
will be to the advantage of all the parties if the files are
transferred or accessed remotely,
in order that the applicants'
asylum seeker applications may be finalised. Respondents have not
counterclaimed that the applicants
should be compelled to attend at
the original RROs where their applications were lodged and I will not
issue such an order.
66.
In
view of what\
have stated above, I order as
follows:
ORDER:
1.
Respondents
are directed to extend and/or renew forthwith at the Cape Town
Refugee Office, ‘(CTRO’) or the Cape Town
Temporary
Refugee Office, (‘CTTRO') the permits in terms of
s 22
of the
Refugees Act, 130 of 1998
, of the listed asylum seekers, described in
Annexure ‘X’, to be annexed, which permits are:
1.1
To
be re-extended and/or renewed by the respondents as and when
necessary for periods of no less than 6 months at a time;
1.2
Applicants
are not to be denied or refused an extension and/or renewal because
any of the listed asylum seekers originally applied
for asylum at a
Refugee Reception Office, other than Cape Town;
1.3
Applicants
are not to be denied or refused an extension or renewal due to the
absence of the listed asylum seekers’/applicants’
files
from the CTTRF.
2.
The
orders above are to remain valid until the resolution of each listed
asylum seeker s application for asylum, including any internal
appeals in terms of the Act, or until all legal disputes challenging
the closure of the CTRRO have been finally resolved, whichever
occurs
first.
3.
The
respondents will furnish the applicants’ attorneys on 27
February 2015 or as soon thereafter as possible, with a schedule
setting forth the dates and times according to which the applicants
must present themselves at the CTTRF for the purpose of obtaining
their extensions, referred to above.
4.
Applicants
will annex to this order the relevant list of asylum seekers seeking
extensions/renewals of their asylum seekers’
permits in terms
of s 22 of the Act, as previously annexed to court orders postponing
the matter, marked ‘X’.
5.
Respondents
are directed to jointly and severally pay the applicants’ costs
of
E STEYN J