410 Voortrekker Road Property Holdings CC v Minister of Home Affairs

• Jurisdiction: South Africa
• Judge: Binns-Ward J
• Judgment Date: 03 May 2010
• Docket Number: 26841/09
• Court: Western Cape High Court, Cape Town
• Hearing Date: 15 April 2010
• Citation: 2010 JDR 0520 (WCC)

Binns-Ward J:

[1] The influx of large numbers of political and economic refugees into this country during recent years is a well enough known phenomenon to render a description of it in this judgment unnecessary. As happens in such situations, it has given rise to peculiar social and economic problems within the host country. The issues connected with the phenomenon are neither unique, nor unprecedented, and in some respects they have international repercussions; which no doubt explains the existence of a range of international legal instruments to address these matters.

[2] The long title and preamble of the Refugees Act 130 of 1998 reflect the object of the statute as being to give effect within the Republic of South Africa to this country's obligations consequent upon its accession to the 1951 (United Nations) Convention Relating to the Status of Refugees, the 1967 (United Nations) Protocol Relating to the Status of Refugees and the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa, 'as well as other human

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rights instruments'. [1] An important consequence of the Act is that, subject to the qualifications set out therein, no person qualifying for asylum as a refugee may be refused entry to the Republic, or expelled, extradited or returned to any other country. An essential component of the effective administration of the Act is the provision of facilities to process the applications of the large numbers of people entering the country allegedly as refugees so as to be able to determine which of them, apparently a minority, properly qualify for asylum. [2] The establishment of such facilities is provided for in terms of s 8 of the Act.

[3] Section 8 of the Refugees Act provides:

8(1)

The Director-General may establish as many Refugee Reception Offices in the Republic as he or she, after consultation with the Standing Committee, regards as necessary for the purposes of this Act.

(2)

Each Refugee Reception Office must consist of at least one Refugee Reception Officer and one Refugee Status Determination Officer who must-

(a)

be officers of the Department, designated by the Director-General for a term of office determined by the Director-General; and

(b)

have such qualifications, experience and knowledge of refugee matters as

makes them capable of performing their functions.

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(3)

The Director-General must, with the approval of the Standing Committee, ensure that each officer appointed under this section receives the additional training necessary to enable such officer to perform his or her functions properly.

[4] Seven refugee reception offices have been established in various centres throughout the Republic. One of these is in Cape Town. History shows that the location and equipping of the Cape Town refugee reception office have given rise to problems of their own. The relevant history has been narrated in a number of earlier judgments of this Court: see in particular Kiliko and Others v Minister of Home Affairs and Others2006 (4) SA 114 (C) and Intercape Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs and Others [2009] ZAWCHC 100 (24 June 2009). [3] In terms of the judgment given in the latter case, the Minister of Home Affairs (who is cited in her official capacity as the first respondent in the current matter, the Director-General of the Department being the second respondent) was interdicted from using certain premises at Airport Industria for the purposes of the refugee reception office established in Cape Town. The order made by the Court was premised on findings that the conduct of

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the refugee reception office at the given address was unlawful because it contravened the applicable zoning scheme regulations and, in addition, gave rise to an irremediable nuisance.

[5] The Department of Home Affairs was afforded a period of three months to relocate the refugee reception office; and the operation of interdict granted was suspended to permit this. [4] The Department investigated a number of alternative sites for the office and ultimately settled on one in Maitland. The office opened for business at its current address on 12 October 2009. Its relocation to Maitland came as an unpleasant surprise to some of its immediate new neighbours. The owner of erf 24123, situate at 410 Voortrekker Road, Maitland, which is the applicant in this case - and, it would seem, several of its tenants - first learned of the relocation when they were confronted with some of the chaotic consequences attendant on the first week of operations of the reception office at the new address. Salient amongst these were traffic congestion and traffic-related lawlessness in Voortrekker Road immediately outside the applicant's premises, tightly packed lines of people queuing for admission to the office's premises blocking the entrance to the applicant's premises. The area was

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strewn with litter. There were other unsatisfactory consequences attendant on the presence of large crowds of asylum applicants without appropriate sanitation facilities in place to cope with the demands. In addition, a significant number of people, desperate for their applications to be attended to, took to sleeping on the pavement outside the applicant's property, with foreseeable adverse consequences for the condition of the neighbourhood. Some of the unwholesome consequences that attended the opening of the refugee reception office at the Maitland address are graphically depicted in a series of photographs annexed to the applicants' founding papers. From the data imprints reflected thereon, it would appear that most of these photographs were taken on 21 October 2009.

[6] The current application was launched on 22 December 2009. In terms of the notice of motion, orders are sought:

'2.

Declaring that the establishment and operation of the Refugee Reception Centre ("the Centre") by the Department of Home Affairs ("the Department"), situated at Voortrekker Road, Maitland on the properties known as erven 24125, 24129, 24151 and 24165, Cape Town ("the properties") is unlawful on the grounds that:

2.1

It contravenes the permissible land uses of the properties (and in particular erven 24151, 24165 and part of err 24129) in terms of

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the Land Use Planning Ordinance 15 of 1985 and the Fourth Respondent's zoning scheme;

2.2

It constitutes a common law nuisance; and

2.3

It constitutes an infringement of the constitutional rights of the Applicant, their employees, invitees and tenants to equality (section 9 of the Constitution); dignity (section 10 of the Constitution); freedom of movement (section 12 of the Constitution); freedom of trade (section 22 of the Constitution) and security of person (Section 23 of the Constitution).

3.

Reviewing and correcting and setting aside:

3.1

The decisions of the Second Respondent, made at some time before 12 October 2009, to establish the Centre on the properties;

3.2

The decisions of the Second Respondent, the Department and the Department of Public Works to lease the properties from their owners or beneficial occupiers; and

3.3

The decisions of the Second Respondent and the Department to allow the continued unlawful operation of the Centre after 12 October 2009.

4.

Directing the First Respondent, Second Respondent, and/or the Department to cease the activities of the refugee centre at the said address and to remove the said centre from the said premises within one month of any order of this Court.'

[7] The relief sought was predicated on the following allegations in the founding papers:

(i)

That the use of part of the premises of the refugee reception office infringed the applicable land use restrictions, determined in terms of the City of Cape Town zoning scheme regulations, read with s 13 of the Legal Succession to the South African Transport

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Services Act 9 of 1989 (hereafter referred to as 'the SATS Act').

(ii)

That the decision to locate the office at the premises in Maitland infringed the applicant's right to fair and reasonable administrative action; in particular, because it had not been preceded by appropriate consultation.

(iii)

That the conduct of the business of the office on the property gave rise to a legally cognisable private nuisance. [5]

Arising from its assessment of the answering papers, the applicant also argued at the hearing that the opening of the office at the Maitland address was ultra vires because it had not occurred pursuant to a decision by the Director-General of the Department, which, so the applicant contended, was a requirement of s 8 of the Refugees Act. [6]

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[8] Only the applicant and the first and second respondents actively participated in the litigation. The third respondent (the Minister of Public Works) initially indicated an intention to oppose the application, but subsequently decided to abide the decision of the court. The City of Cape Town, which was cited as the fourth respondent in its role as the local authority responsible in terms of s 39 of the Land Use Planning Ordinance 15 of 1985 (LUPO') for the enforcement of the applicable zoning scheme regulations in Maitland, also abided the decision of the court.

[9] It is convenient to deal first with the issues of compliance by the Department with s 8 of the Act and the consequences of any lack of consultation by the Department with the applicant in regard to locating the office at the Maitland premises.

Compliance with s 8 of the Refugees Act

[10] The most relevant consideration in the making of any decision in terms of s 8 of the Act is the provision of the facilities necessary to fulfil the purposes of the Act. In...