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[2015] ZAWCHC 86
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Mayemba v Chairperson of Standing Committee for Refugee Affairs and Others (19960/2014) [2015] ZAWCHC 86 (10 June 2015)
THE HIGH COURT OF SOUTH
AFRICA
(WESTERN CAPE DIVISION,
CAPE TOWN)
Case No: 19960/2014
DATE: 10 JUNE 2015
In the matter between
OWALE
MAYEMBA
.........................................................................................................
APPLICANT
And
CHAIRPERSON OF STANDING
COMMITTEE
FOR REFUGEE
AFFAIRS
...............................................................................
FIRST
RESPONDENT
REFUGEE STATUS
DETERMINATION OFFICER
...............................
SECOND
RESPONDENT
MINISTER OF HOME
AFFAIRS
..................................................................
THIRD
RESPONDENT
DIRECTOR-GENERAL OF
DEPARTMENT OF
HOME
AFFAIRS
..........................................................................................
FOURTH
RESPONDENT
Coram
:
ROGERS J
Heard:
26 MAY 2015
Delivered:
10 JUNE 2015
JUDGMENT
ROGERS
J:
Introduction
[1]
On 15 June 2011 the
applicant (‘Mayemba’) made application at the Refugee
Reception Office in Musina for asylum in terms
of s 21 of the
Refugees Act 130 of 1998 (‘the Act’). On 22 June 2011 he
returned to Musina for an interview with a
Refugee Status
Determination Officer (‘RSDO’). The RSDO, one
Davhana
Norman (‘Norman’),
rejected his application in terms of s 24(3)(b) as ‘manifestly
unfounded’. On 9
November 2011 the Standing Committee for
Refugee Affairs (‘the Committee’) confirmed this decision
in terms of s 25(3)(a).
[2]
Mayemba says that he
learnt of these decisions in May 2014 when visiting Customs House in
Cape Town for purposes of renewing his
temporary asylum seeker permit
in terms of s 22. After receiving advice from a friend, he made
an appointment with the UCT
Refugee Clinic (‘the Clinic ‘)
on the first available date, being in July 2014. The Clinic made
investigations. On
6 November 2014 the present application was
issued. Part A sought urgent interim relief which was resolved by
agreement. Part B
seeks the reviewing and setting aside of Norman’s
decision of 22 June 2011 and the Committee’s decision of 9
November
2011 and a declaration that Mayemba is a refugee entitled to
asylum in South Africa. Ms de la Hunt appeared for Mayemba and Ms
Slingers for the respondents.
Facts
– Mayemba’s flight to South Africa
[3]
Mayemba’s account
of his history in the DRC and arrival in South Africa is briefly as
follows. He was born on 10 October 1989
and is now 25. He grew up
with his parents in the town of Fizi in the South Kivu province of
the DRC. (The northern part of South
Kivu borders on Burundi to the
east. The southern part of South Kivu, where Fizi is situated, has
Lake Tanganyika as its eastern
boundary.) It is common cause that in
recent years South Kivu has been wracked by civil war which has
seriously disturbed and disrupted
public order. Mayemba was
compelled, due to political unrest, to write his final school
examinations in another district –
this was in June 2009. Civil
unrest grew worse as a result of which he was unable to enrol for
tertiary education.
[4]
His father was an
active and high-profile member of the MLC,
[1]
as a result of which he was persecuted by the government and arrested
and interrogated by the police. (Although in his founding
affidavit
he said that his father was ‘frequently’ arrested, in the
replying affidavit he said his father was arrested
for about a month
during 2010.)
[5]
During 2010 the civil
war intensified and rebel attacks became more frequent. Their home
was attacked one night while Mayemba was
visiting friends. Upon his
return he found the house vandalised and his parents and brother
gone. Most of the villagers fled during
the night. Mayemba stayed for
a few weeks with a friend who lived about half an hour away. He tried
without success to locate his
family by placing an advertisement on
the local radio station and through the Catholic Church.
[6]
Mayemba was afraid that
he would be conscripted by one of the rebel groups which were
intensifying their recruiting of young men
in the area. He did not
personally know anyone who had been forcibly recruited but reports of
attacks by rebels, where young men
were captured, were commonplace.
Because he did not want to be a rebel soldier and because he feared
death if he refused to join,
he fled to Kinsagani in the Orientale
province in the Eastern DRC where he had a paternal aunt. He lived
there for about two months.
(Kinsagani lies to the north west of
South Kivu. From South Kivu one would reach Kinsagani, which is
Orientale’s largest
city, by passing through the provinces of
Maniema or North Kivu. Orientale’s eastern border is with
Uganda.)
[7]
Mayemba’s aunt’s
husband was not prepared to harbour him indefinitely, so he returned
to Fizi to look for his family
and see whether the conflict had been
resolved. He stayed there for only a few days. Circumstances remained
chaotic and violent.
(He says, on advice from the Clinic, that this
is well-documented. For example, at the beginning of January 2011
FARDC soldiers
(the DRC army) took part in mass revenge rapes in
Fizi. In mid-February 2011 villagers in the Fizi region were attacked
and raped
by armed men who appeared to be from the FDLR (rebels from
Rwanda).)
[8]
A friend advised him to
go to Bujumbura in Burundi where he remained for about four months
washing cars. While he was there he heard
that he could seek asylum
in South Africa. He made the journey by truck, entering South Africa
through Beit Bridge.
[9]
He says the primary
reason he fled was the ongoing civil war in South Kivu which
seriously disturbed the peace there. A secondary
reason was that as a
young man he was particularly susceptible to being forcibly recruited
as a rebel soldier.
The
facts – the application for asylum
[10]
Mayemba’s account
of the process followed in his application for asylum is the
following. At the time he arrived in South
Africa he could speak
Lingala, Swahili and French. He did not yet speak or write English.
[11]
He was assisted in
completing the asylum application dated 5 June 2011 by a Somali
interpreter who could speak Swahili. Because
the interpreter’s
dialect differed from his, it was difficult to communicate
effectively. Mayemba conveyed the essence of
why he fled the DRC. He
cannot say whether the interpreter correctly wrote down what he said.
Most of the form was completed by
the interpreter, the rest by
Mayemba under the interpreter’s direction. At no stage did he
talk to a Refugee Reception Officer
(‘RRO’). He received
no explanation regarding the asylum process.
[12]
When he returned to the
Refugee Reception Office on 22 June 2011, he was handed a copy of the
RSDO’s decision rejecting his
application as manifestly
unfounded. No interview with a RSDO took place. He does not know
whether the person who handed him the
decision was an RSDO. He was
not asked any questions and there was no hearing.
[13]
On the same day he was
given a s 22 permit valid for six months. (This was presumably
to allow time for the Committee to review
the RSDO’s decision
in terms of s 25.) Because the asylum process had not been
explained to him, he was not aware that
the process followed in his
case was irregular and unfair.
[14]
He only learnt during
May 2014 of the Committee’s decision dated 9 November 2011. The
Committee did not seek further information
from him or hold a
hearing.
[15]
I should mention that
Mayemba and the Clinic only obtained the application of 15 June 2011
and the RSDO’s ‘interview
notes’ of 22 June 2011
after the application was delivered and pursuant to the furnishing by
the respondents of the record.
Mayemba made a supplementary founding
affidavit dealing with these documents.
The
respondents’ version
[16]
The respondents in the
nature of things cannot be expected to have personal knowledge of
Mayemba’s history in the DRC. They
question certain of his
allegations on the basis of what he allegedly said in his application
for asylum and in his alleged interview
with the RSDO. They also
criticise the lack of detail in his founding papers.
[17]
The respondents do not
contest that South Kivu has suffered serious disturbance and serious
disruption of public order in recent
years on account of civil war.
They do not say that events of the kind described by Mayemba have not
occurred. However, and based
on statements allegedly made by Mayemba
in the asylum process, they say he is an economic migrant, that he
left the DRC because
there were no jobs there and that he hoped to
get work in South Africa.
[18]
In regard to the asylum
process, Norman states that in making an application for asylum an
asylum seeker is assisted by an RRO who
explains the process and
determines whether the applicant requires the assistance of an
interpreter. This is what ‘normally’
happens but he
cannot specifically say what happened in Mayemba’s case on 15
June 2011. (It is difficult to identify the
name of the RRO from
his/her signature on the application form. Presumably the respondents
would have been able to identify him/her.
No affidavit by the RRO in
question was filed.)
[19]
In regard to Norman’s
decision as an RSDO, he says that he does not have an independent
recollection but that he has never
made a decision on an asylum
application without interviewing the applicant. His interview notes
show that an interview was held.
The interview notes reflect that he
asked Mayemba whether his only reason for coming to South Africa was
to seek employment, to
which he responded yes.
[20]
The chairperson of the
Committee says in his affidavit that, based on the documentation
received by the Committee, Mayemba did not
qualify for asylum as he
was not a ‘refugee’ within the meaning of s 3(a) or
s 3(b) of the Act. The chairperson
says that the Committee is
not obliged to have a hearing before upholding a decision of the
RSDO. He adds that if the process was
flawed, this has not prejudiced
Mayemba, because – having regard to the information in the
founding papers – the application
for asylum would in any event
have failed. This is because, in the absence of greater
particularity, Mayemba has not established
his entitlement to asylum
(ie a reasonable possibility of persecution) and because he has not
shown that he could not safely live
in Kinsagani.
Evaluation
– process
[21]
In my view Mayemba has
established that the process followed in his case was materially
flawed, both at the RRO stage and the RSDO
stage. These
irregularities fatally taint the Committee’s decision because
the Committee relied on the integrity of the earlier
processes.
[22]
There is no direct
evidence challenging Mayemba’s version of what happened on 15
June 2011. The respondents could have identified
and filed an
affidavit by the RRO in question. This they did not do. The fact that
a particular process is ‘normally’
followed does not mean
that it was followed in this case.
[23]
There are various
features of the application form which lend credence to what Mayemba
says. The form records that he was assisted
by an interpreter
identified only as ‘Ali’. Some of the information
recorded in the form, on matters in regard to which
Mayemba would
have had no reason to lie, is manifestly incorrect, for example the
town where he was born (
Uvira
instead of Fizi), his ethnic group (Mufulero – an ethnic group
unknown to him – instead of Mwenga),
his
marital status (married instead of single), the supposed name of his
wife and son (the named people are in fact his sister and
her child)
and that he had qualified and worked as a teacher for six years from
2000 to 2006 (he had not been able to enrol for
tertiary education
and was only 11 years old in 2000). This shows a serious breakdown in
communication in the completion of the
application form, owing to
inadequate interpretation.
[24]
Furthermore, it is
clear, as Mayemba pointed out in his supplementary founding
affidavit, that three different handwritings appear
on the form,
whereas according to him he signed it at a time when only he and the
interpreter had written on the form. In the important
questions
relating to the merits of the asylum application, there are three
different handwritings, containing the following statements:
‘I
came here to look for work since there is no work in Congo’
(handwriting 1); ‘Also, I ran away for my safety’
(‘handwriting 2), ‘I ran away to look for better life’
(handwriting 1); ‘If I return to my country I can
be killed to
because I will not be safe’ (
sic
,
handwriting 3). Handwriting 1 appears to be that of the RRO, because
it corresponds with the handwriting in para 9 which is for
official
use and contains the RRO’s preliminary comment (‘economic
reason’). It thus seems that the answers adverse
to Mayemba’s
asylum application were answers written out by the RRO, in
circumstances where according to Mayemba he never
spoke with the RRO.
He alleges in his supplementary answering affidavit that he never
made the statements apparently written out
in the RRO’s
handwriting.
[25]
The RRO is obliged by
s 21(1)(b) to ensure that the application form is properly
completed. Where necessary, the RRO must assist
the applicant. In
terms of regulation 4(1)(a) the RRO must ensure that the applicant is
provided with adequate interpretation in
accordance with regulation
5. Regulation 5(1) provides that where practicable and necessary the
Department will provide ‘competent
interpretation for the
applicant at all stages of the asylum process’. Where this is
not practicable, the applicant in terms
of regulation 5(2) will have
to provide an interpreter but he/she must then be given at least
seven days’ advance notice
to bring an interpreter.
[26]
In my view, the RRO
failed to provide Mayemba with a competent interpreter. It is clear
that there was a breakdown in communication
between Mayemba and the
Department’s interpreter owing to differences in dialect. The
extent of the errors in the form is
such that the interpretation
cannot be regarded as having been competent. If the Department did
not have an interpreter who could
properly assist Mayemba, the
regulation 5(2) procedure should have been followed.
[27]
Furthermore, the RRO in
my view did not comply with his duty to ensure that the application
form was properly completed. While some
of the errors may not have
been self-evident to the RRO, the information about Mayemba’s
qualification and employment as
a teacher was obviously
irreconcilable with his recorded date of birth. Critical information
regarding the merits of the asylum
application were completed in
different hands and this was not clarified.
[28]
In regard to the RSDO’s
decision of 22 June 2011, s 24(2) provides that the RSDO must
have due regard to the rights set
out in s 33 of the
Constitution and in particular ensure that the applicant ‘fully
understands the procedures, his or
her rights and responsibilities
and the evidence presented’. Regulation 10(1) requires the RSDO
to conduct ‘a non-adversarial
hearing to elicit information
bearing on the applicant’s eligibility for refugee status’.
The obligations imposed by
s 24(2) are repeated. An applicant
bears the burden of proving that he is a refugee (regulation 11(1))
but in the absence
of documentary evidence an applicant’s
credible testimony may suffice (regulation 11(2)). Regulation 5, in
regard to interpretation,
is applicable to the proceedings of the
RSDO.
[29]
Norman says, fairly
enough, that he does not have an independent recollection of the
interview. His version is thus based on the
process he says he
‘invariably’ follows together with his ‘interview
notes’. However, at least in this
particular instance I am
satisfied that he could not have followed his usual process and that
there is no genuine dispute of fact
on that point. The interview
notes (except for Mayemba’s signature and the name and surname
printed above it) are in Norman’s
handwriting. There is nothing
in the interview notes which could not simply have been transposed
from the application form. In
other words, there is no information
proving that an interview must have taken place. That information was
merely transposed from
the application form is the inescapable
inference from the fact that some of the information in the interview
notes repeats obvious
errors from the application form, namely that
Mayemba was born in Uvira and that he was married and had children.
The reason given
for seeking asylum is recorded in the interview
notes as: ‘I left my country because they are no jobs and I
came to look
for jobs in South Africa. Is that all, for reason you to
leave your country? Yes’. The first sentence is simply a
paraphrase
of what was written, in the RRO’s handwriting, in
the application form.
[30]
There is no indication
that the RSDO interrogated the statements in the application form to
the effect that Mayemba fled the DRC
for his safety and feared that
if he returned he would be killed. I think I may assume that RSDOs
would be aware, in the light
of reports from organisations such as
the UNHCR, Human Rights Watch and Amnesty International, of the
plausibility of such a claim
and of the serious disturbances and
disruption in the Eastern DRC.
[31]
An RSDO conducting the
non-adversarial hearing prescribed by regulation 10(1) may not
legitimately refrain from asking questions
in the hope that the
applicant will not say enough to justify the granting of asylum. The
RSDO must properly and in good faith
elicit information bearing on
the applicant’s eligibility (cf
Radjabu
v Chairperson of
Standing Committee for Refugee Affairs & Others
[2015]
1 All SA 100
(WCC) paras 23-24). This does not mean that the RSDO
must prompt the applicant to make statements bringing himself within
the definition
of a ‘refugee’ (ie put words in his
mouth). The RSDO must, however, probe allegations which are
suggestive of an entitlement
to asylum. In the present case, this
would have required Norman to elicit further information about the
statements in the application
form that Mayemba ran away from the DRC
for his safety and feared that if he returned he would be killed. If
Mayemba made statements
to the effect that he was looking for a
better life in South Africa and hoped to find work here, the
inter-relationship between
those statements and his concerns for his
safety should have been interrogated. A person who leaves his country
because he is unsafe
there and fears for his life may, consistently
with such a fear, say that he hopes to find a better life in South
Africa and get
a job. The RSDO’s recommendation to the
Committee made no mention of the statements made by Mayemba that he
fled the DRC
for his safety and feared that he would be killed if he
returned.
[32]
Significantly, where an
interpreter is utilised, the standard RSDO interview form requires
details to be inserted of the interpreter’s
name and his/her
organisation and makes provision for the interpreter to sign. This
part of the document was, in Mayemba’s
case, left blank. One
can safely say that even if Norman interviewed Mayemba, no
interpreter was present. Mayemba could not speak
English. This
omission, pointed out in the supplementary founding affidavit,
received no satisfactory response from the respondents.
The absence
of an interpreter when one is required was described in
Katsshingu
v Chairperson
of
Standing Committee for Refugee Affairs & Others
[2011]
ZAWCHC 480
page 12 as an ‘egregious shortcoming’ (see
also
Akanakimana
v Chairperson of Standing
Committee for Refugee Affairs & Others
[2015]
ZAWCHC 17
para 13;
M
v Minister of Home Affairs & Others
[2014]
ZAGPPHC 649 paras 101-102).
[33]
I am thus satisfied
that the RSDO failed to comply with his duties in terms of s 24(2)
and regulations 5 and 10(1).
[34]
It is unnecessary, in
the circumstances, to decide whether the Committee was duty bound, in
the particular circumstances of the
case, to exercise its statutory
powers under s 25(2) to obtain further information and invite
Mayemba to appear. The fact
of the matter is that the Committee
relied on information which, because of defects in the earlier stages
of the process, was unreliable
and incomplete. Its decision must fall
with that of the RSDO. I should say, though, that if the Committee
was furnished with Mayemba’s
application, it should have
realised that the RSDO’s determination that Mayemba left the
DRC solely for economic reasons
was not consistent with the
application and warranted further enquiry.
Evaluation
- merits
[35]
The affidavits and
argument covered the question whether Mayemba qualifies as a
‘refugee’ under ss 3(a) and (b)
of the Act. As to
para (a), Ms de la Hunt submitted that Mayemba had proved a
well-founded fear of being persecuted by reason of
his membership of
a ‘particular social group’. The ‘social group’
in question comprised young men in South
Kivu and the fear of
persecution was posed by the forced recruitment of young men as rebel
soldiers. As to para (b), Ms de la Hunt
submitted that Mayemba had
proved that he left his place of habitual residence (Fizi) and sought
refuge in South Africa owing to
‘events seriously disturbing or
disrupting public order’ in a part of his country, namely South
Kivu.
[36]
The respondents, by
contrast, contend that the applicant has not discharged the burden in
either of these respects.
[37]
It would only be
necessary for me to evaluate the merits if I came to the conclusion
(i) that this was an appropriate case
(as Ms de la Hunt urged)
to substitute the decision made by the RSDO and the Committee with a
decision declaring Mayemba to be
a refugee and entitled to asylum or
(ii) that (as Ms Slingers submitted) the procedural defects did
not prejudice Mayemba
because, having regard to the fuller
information supplied in his founding papers with the assistance of
legal representation, he
is not entitled to asylum.
[38]
The power of
substitution conferred by s 8(1)(c)(ii)(aa) is one to be
exercised only in exceptional circumstances and 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 (
Gauteng
Gambling Board
v
Silverstar Development Ltd & Others
2005
(4) SA 67
(SCA) paras 28-29;
Radjaba
supra
para 33). Circumstances which may
favour substitution are where further delay would cause unjustifiable
prejudice or the original
decision-maker has exhibited bias or
incompetence or the outcome is a foregone conclusion
(
Tantoush
v Refugee Appeal Board & Others
[2007] ZAGPHC 191
;
2008
(1) SA 232
(T) paras 125-128).
[39]
I do not think this is
an exceptional case justifying an invocation of the court’s
power of substitution. There are several
reasons for my conclusion.
[40]
Firstly, there is not
at the RRO and RSDO stages only one designated functionary. The
Department employs a number of officials to
perform these functions.
Although Mayemba’s case was not properly handled by the
particular RRO and RSDO who dealt with him,
his case would not, if
remitted, necessarily be dealt with by those particular officials.
Indeed, I think it highly desirable that
the matter should be
processed by other officials.
[41]
If Mayemba’s
application were again determined by an RSDO to be ‘manifestly
unfounded’ (defined in s 1 as
meaning an application for
asylum made on grounds other than those on which such an application
may be made in terms of the Act),
the Committee would have to take it
under review in terms of s 25. In this respect, there is
admittedly only one functionary,
namely the Committee, though its
membership may change from time to time. I think it is unfortunate
that the Committee’s
chairperson should, in his answering
affidavit, have expressed such a definite opinion on Mayemba’s
case for asylum. Nevertheless,
I do not think I can say that the
Committee, if the matter were again to come before it, would not
exercise its review power honestly
and properly. Furthermore, if the
RSDO were again to reject Mayemba’s application, it may well –
based on the fuller
information provided by Mayemba – do so on
the basis that the application is ‘unfounded’ as
contemplated in s 24(3)(c)
rather than ‘manifestly
unfounded’ as contemplated in s 24(3)(b). If that were the
finding, the matter would not
go to the Committee in terms of s 25.
Instead, Mayemba would have a right of appeal to the Appeal Board in
terms of s 26.
The Appeal Board has not yet had occasion to
consider his case.
[42]
Second, there was no
undue delay by the RSDO and Committee in dealing with Mayemba’s
application for asylum. The are no grounds
for believing that a fresh
consideration of his application will be unduly delayed.
[43]
Third, the process
conducted by an RSDO, although not adversarial, is one in which the
veracity of what an applicant says can be
tested. While an RSDO can
be expected to have some institutional knowledge about the
circumstances prevailing in countries from
which asylum seekers in
South Africa typically come (including the DRC), the adjudication of
an asylum application must nevertheless
be individualised. Precisely
because the RSDO and the Department cannot be expected to have
personal knowledge of an applicant’s
history, one should not
lightly deprive them of the opportunity of utilising the prescribed
statutory process for eliciting full
information and, if necessary,
testing what the applicant says. The fact that the respondents in the
present case have not been
able to place much of what Mayemba says in
issue does not mean that they should not have the opportunity of
interrogating it by
the appropriate procedure.
[44]
Fourth, four years have
elapsed since the asylum application was made and decided. The
adjudication of an asylum application is
concerned with the current
state of affairs in the country of origin (and see s 5 of the
Act dealing with the cessation of
refugee status). The circumstances
in the relevant parts of the DRC may have undergone change. Ms de la
Hunt during argument handed
up current reports of the circumstances
prevailing in the Eastern DRC. While the court may be entitled to
receive such information
informally (there was no objection by Ms
Slingers), I think it preferable for such information in the first
instance to be dealt
with through the statutorily prescribed
procedures of ss 21, 24, 25 and 26.
[45]
The power of
substitution conferred by s 8(1)(c)(ii)(aa) of PAJA involves a
value judgment as to the existence of ‘exceptional
circumstances’ and the exercise of a judicial discretion. Each
case will depend on its own particular facts. For this reason
I do
not intend to deal at any length with the cases to which Ms de la
Hunt referred me in which substituted decisions were made.
Just by
way of example, in one of those cases,
Katsshingu
supra, the respondents, although
opposing the application, filed no answering affidavits and their
resistance to substitution seems
to have been confined to a
submission that, before making an order, the court should request an
affidavit from the UNHCR regarding
the circumstances currently
prevailing in North Kivu. In
Akanakimana
supra the court had the benefit of
hearing oral evidence, including cross-examination of the
asylum-seeker, and the RSDO’s
evidence was that on the facts
now before the court he would have granted the asylum application.
[46]
During argument the
question arose whether, at least in regard to s 3(b), Mayemba’s
entitlement to asylum turned solely
on a question of law, in which
case substitution may have been regarded, by way of exception, as
permissible. I invited counsel
to file a supplementary note on this
question. The point of law was whether, in terms of s 3(b), it
is a bar to the granting
of asylum that the applicant could have
found refuge elsewhere in his own country, ie whether the internal
flight alternative (‘IFA’)
applies to s 3(b). In
Katabana
v Refugee Appeal Board &
Others
WCHC Case
25061/2012 Davis J said that the IFA does not apply to s 3(b)
(page 8).
[2]
There are indications that the Committee holds a different view.
[47]
In her supplementary
note Ms de la Hunt submitted that the IFA forms no part of s 3(b)
because the section expressly contemplates
that asylum may be granted
despite the fact that the disturbance or disruption affects only part
of the country of origin. Ms Slingers,
on the other hand, submitted
that the IFA is applicable because ‘elsewhere’ in s 3(b)
should be understood as
meaning ‘another country’ and
because a person could not claim to have been compelled to seek
refuge in another country
if there was a place within his own country
where he could reasonably have sought refuge.
[48]
The factual assumptions
which would make this the decisive legal question include the
following: (I) that South Kivu is still subject
to serious
disturbance and disruption of public order; (ii) that Kinsagani,
unlike South Kivu, has not suffered and is not now
suffering serious
disturbance or disruption of public order; (iii) that Mayemba’s
two-month’s sojourn in Kinsagani
with his paternal aunt shows
that he could reasonably be expected to take refuge there. Counsel in
their supplementary notes focused
on the position which prevailed in
2011. It is not clear to me that both sides accept assumptions (i)
and (ii) above and Mayemba
does not accept assumption (iii). In his
replying affidavit Mayemba says that at certain times one province or
district has been
peaceful, only later to be plunged into violence. A
UNHCR Position of September 2014 states that ‘numerous other
armed groups
pose a serious threat to civilians in the Kivus,
Katanga, Orientale and Maniema provinces’.
[3]
Later in the same report the UNHCR says that the situation inter alia
in ‘parts’ of Orientale ‘remains fluid’
and
urges States not forcibly to return DRC nationals originating from
these areas ‘until the security and human rights situation
has
improved considerably’. Mayemba alleges that he has no means of
supporting himself in Kinsagani and that it is not unreasonable
for
him to fear that it too might be subject to violence in the near
future.
[49]
I thus consider that it
is preferable to leave, for fresh consideration by the RSDO and the
Committee/Appeal Board, the factual
and legal issues relating to the
IFA, if and to the extent they arise. If Mayemba’s case for
asylum were to depend on s 3(b)
and if the IFA were decisive of
the outcome, the RSDO and Committee/Appeal Board would no doubt
carefully consider the view expressed
by Davis J in
Katabana
.
Mayemba would have a right of review to this court if the RSDO and
Committee/Appeal Board placed a wrong interpretation on s 3(b).
The IFA question in s 3(b) is an important one with significant
ramifications for asylum seekers on the one hand and this
country on
the other. It is a question which, particularly since a judge in this
division has already expressed an opinion on it,
may warrant
consideration by a court comprising two or three judges.
[50]
As to Ms Slinger’s
submission, following that of the Committee’s chairperson, that
Mayemba was not prejudiced by the
procedural defects, the
no-difference approach has been rejected in cases where natural
justice requires that a person receive
a hearing before an adverse
decision is made (see, eg,
Traube
& Others v Administrator Transvaal & Others
1989
(1) SA 397
(W) at 403D-E;
Administrator
Transvaal & Others v Zenzile & Others
1991
(1) SA 21
(A) at 37D-F;
Minister
of Defence and Military Veterans v Motau & Others
2014
(5) SA 69
(CC) para 85; and see Baxter
Administrative
Law
at 540-541).
Mayemba was entitled to a proper and fair process in terms of ss 21,
24 and 25. The court should give no encouragement
to the Department
and its officials to short-change asylum seekers procedurally on the
basis that the Department will be able at
its leisure to fight out
the merits of asylum in court if the asylum seeker should have the
capability, energy and resources to
launch review proceedings.
[51]
I do not wish to
express an opinion on whether the allegations made by Mayemba are or
are not sufficient to discharge the burden
of showing an entitlement
to asylum. Mayemba, who might be legally assisted in the further
procedures before the RRO, RSDO and
Committee/Appeal Board, may be
able to supplement the information already supplied if the relevant
functionaries consider that
more detail is needed.
Conclusion
[52]
Although, for reasons
stated above, I do not intend to grant a substituted order declaring
Mayemba to be entitled to asylum, it
would be unfair to him if the
matter were remitted in the true sense, ie for reconsideration of his
application dated 15 July 2011.
That application was, because of
procedural defects in the process followed before the RRO, not a fair
and accurate presentation
of Mayemba’s case for asylum. In the
circumstances, he should be afforded an opportunity to present a
fresh application in
terms of s 21.
[53]
I make the following
order:
(a) The decision taken by the first respondent on or
about 9 November 2011 and handed to the applicant on 14 May 2014,
upholding
the decision of the second respondent in (b) below, is
reviewed and set aside.
(b) The decision of the second respondent, made on or
about 22 June 2011, rejecting the applicant’s application for
refugee
status and asylum as manifestly unfounded, is reviewed and
set aside.
(c)
The applicant shall, within two months of this court’s order or
within such further period as the parties may agree in
writing or the
court may direct, submit a fresh application for asylum in accordance
with
s 21
of the
Refugees Act 130 of 1998
and the further
provisions of
ss 21
to
26
(as the case may be) of the Act shall
apply to such fresh application. The Refugee Status Determination
Officer assigned to deal
with the fresh application shall not be Mr
Davhana
Norman.
(d)
The applicant’s costs shall be paid by the respondents jointly
and severally, the one paying the other to be absolved.
ROGERS
J
APPEARANCES
For Applicant Ms V de
la Hunt
Instructed by
University of Cape Town Refugee Rights Clinic
Kramer School of Law
Middle Campus, 1
Stanley Road
Rondebosch
For Respondents Ms H
Slingers
Instructed by State
Attorney
4th Floor, 22 Long
Street
Cape Town
[1]
Mouvement pour da Liberation du Congo
.
[2]
This judgment is erroneously listed in the North
Gauteng database of SAFLLI - [2012] ZAGPPHC 362.
[3]
UNHCR Position on Returns to North Kivu, South
Kivu and Adjacent Areas in the Democratic Republic of Congo affected
by on-going
conflict and violence in the region – update 1
dated September 2014. This was document ‘A’ of the six
documents
handed to me during argument by Ms de la Hunt.