Intercape Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Judge: Rogers AJ
• Judgment Date: 24 June 2009
• Citation: 2010 (5) SA 367 (WCC)
• Docket Number: 20952/08
• Counsel: JA le Roux SC (with D Borgström) for the applicants. MA Albertus SC (with G Bofilatos) for the first and fourth respondents. No appearance for the second or third respondents (but S van Zyl filing heads of argument for the third respondent). A Katz as amicus curiae.
• Court: Western Cape High Court, Cape Town

Owen Rogers AJ:

Introduction

[1] The applicants own or occupy various premises in the vicinity of I Montreal Drive, Airport Industria, Western Cape. The third respondent, Cila Executive Apartments 1 CC (Cila), is the owner of a property in the same area, namely erf 115973 Montreal Drive. The first respondent is the Minister of Home Affairs. The Department of Home Affairs (the DoHA or simply the Department) occupies erf 115973 and uses it as a refugee reception office (the refugee office). The DoHA's occupation is J

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A by virtue of a lease between Cila and the Department of Public Works (the DoPW). The Minister of Public Works has been joined as the fourth respondent. The second respondent is the Municipality of Cape Town (the City), in whose area the properties fall.

[2] The applicants launched the present application on 18 December B 2008 as one of urgency. They seek an order that the DoHA cease operating the refugee office on erf 115973. They do so on the basis (and seek declaratory orders to the effect) that the operation of the refugee office on the property contravenes the City's zoning scheme and that it in any event constitutes a common-law nuisance. (The applicants also C alleged in their founding papers that the operation of the refugee office violated various constitutional rights of the applicants, their employees and invitees, but this was not pressed as a separate cause of action at the hearing.) Initially the Minister of Public Works was not cited. At the first hearing of the application on 10 March 2009 counsel for the Minister of Home Affairs argued that the joinder of the Minister of Public Works was D necessary as the DoPW was the lessee of the property. On 13 March 2009 Baartman AJ ruled that such joinder was necessary and postponed the application to allow for such joinder. The costs of that hearing stood over for later determination. The Minister of Public Works was thereafter joined.

E [3] The two Ministers and Cila oppose the application. Mr Albertus SC and Mr Bofilatos appeared for the Ministers. Ms Van Zyl filed heads of argument on behalf of Cila but did not appear at the hearing. I was told that this was due to costs constraints. The applicants were represented by Mr Le Roux SC and Mr Borgström. At the request of the court Mr Katz F appeared as an amicus, primarily with a view to making submissions as to what order the court could and should make if the applicants established the alleged unlawfulness of the DoHA's conduct of the refugee office but also, more generally, to provide a voice for asylum seekers whose interests could be affected by the relief sought by the applicants. Mr Katz's willingness to perform this task at very short notice G is much appreciated by the court.

The Montreal Drive enclave

[4] The area in question (the Montreal enclave) lies at the apex of the H triangle created by the N2 highway and Borcherds Quarry Road. The refugee office and the properties owned or occupied by the applicants are accessed by turning off Borcherds Quarry Road into Montreal Drive. There are ten erven abutting Montreal Drive to the northwest and seven erven abutting Montreal Drive to the southeast. Another seven erven to the southeast are accessed by two short cul-de-sacs off Montreal Drive I (Millpark Close and Morris Close). All the erven in this enclave are zoned as 'General industrial'.

[5] Erf 115973 (where the refugee office is located) is the third-last erf on the northwest side as one drives down Montreal Drive off Borcherds Quarry Road. It is directly opposite the T-junction created by Montreal J Drive and Morris Close. Vehicles bound for the refugee office approach

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and depart from the office in the same way, namely via Borcherds Quarry A Road.

[6] In the account which follows of the applicants and their businesses, employee numbers are the numbers of employees working at the particular premises in question. B

[7] The first applicant, Intercape Ferreira Mainliner (Pty) Ltd (Intercape), occupies several premises in the Montreal enclave. The first applicant is a luxury bus operator. Its head office (50 employees) is the last property on the southeast side of Montreal Drive (erf 108034) and is diagonally opposite the refugee office. (The fifteenth applicant is the C owner of the head office premises.) Intercape occupies two other properties in Morris Close as a workshop maintenance centre for buses (erven 113241 and 113242) and also occupies a property on the northwest side of Montreal Drive (erf 115975) as a call centre (40 employees). (The tenth applicant is the owner of the call centre premises.) There is one property between the refugee office and the call D centre premises. Intercape occupies a portion of another property at the entrance to Montreal Drive (erf 114086). It uses this portion as a training centre (40 employees and trainees).

[8] There is one property, erf 160415, between the refugee office and the E Intercape call centre. Erf 160415 (which I gather comprises sectional title units) is occupied by various tenants, among whom are the seventh, eighth, ninth and fourteenth applicants. The seventh applicant carries on business as a funeral parlour (one employee), the eighth applicant as a freight forwarding agent (four employees), the ninth applicant as a transport broker (three employees) and the fourteenth applicant as a property investment broker (one employee). (The eighth and fourteenth F applicants also own their respective units.)

[9] The second-last property on the southeast side of Montreal Drive is erf 113246. Like the Intercape head office, erf 113246 lies diagonally opposite the reception centre but on the other side of Morris Close. G Erf 113246 is occupied by the sixth applicant, an ice-cream manufacturer and distributor (40 employees). (Erf 113246 is owned by the eighteenth applicant.)

[10] The third-last property on the southeast side of Montreal Drive is erf 113247. It is occupied by the twelfth applicant, an overland tour H operator (50 employees).

[11] The thirteenth applicant occupies erf 113240 (at the end of Morris Close) as a woodwork joinery (40 employees). (This property is owned by the nineteenth applicant.) I

[12] These are the applicants whose premises are situated closest to the refugee office. The remaining applicants occupy or own properties further away on the southeast side of Montreal Drive. The twentieth applicant occupies erf 113234, where it conducts business as a fuel station (16 employees). The remaining properties connected with the applicants in this case are all in Millpark Close. The second applicant J

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A occupies erf 113236, where it conducts business in the sale of second-hand buses and trucks (two employees). (This property is owned by the sixteenth applicant.) The third applicant occupies a portion of erf 114086 (the other portion housing Intercape's training centre). The third applicant is a rebuilder and refurbisher of passenger coaches B (19 employees). (The sixteenth applicant also owns erf 114086.) The fourth applicant occupies erf 113237 and is a tyre retailer (16 employees). (The seventeenth applicant is the owner of this property.) The second to fourth applicants are associated companies of Intercape.

[13] Leaving aside the refugee office, there are 23 erven in the Montreal C enclave. The occupiers of 13 of these erven are applicants. Some of the owners of these 13 erven have also joined as applicants.

The Cape Town refugee reception office

[14] In terms of the Immigration Act 13 of 2002 (the Immigration Act) a person is 'an illegal foreigner' if he is a 'foreigner' (ie not a South D African citizen) and is in the Republic in contravention of the Act. In terms of s 23 a foreigner who claims to be an asylum seeker may be issued with an asylum transit permit valid for 14 days.

[15] In order to acquire the right to remain in South Africa for a longer period, the asylum seeker must follow the procedures set out in the E Refugees Act 130 of 1998 (the Refugees Act). In terms of s 21 of the Refugees Act the asylum seeker must apply for asylum. If the s 21 application is granted, the person is a 'refugee' as defined in the Act, and has the rights and obligations set out in Ch 5 of the Act. Because a s 21 application may take some time to adjudicate, the person applying F for asylum in terms of s 21 must in terms of s 22 be issued with an asylum-seeker permit. The latter permit entitles the asylum seeker to sojourn in the Republic temporarily pending the adjudication of his s 21 application.

[16] Although one would, in the light of the statutory regime, expect G asylum seekers to be persons in possession of a transit permit issued in terms of s 23 of the Immigration Act, I was informed by the amicus and by the Ministers' counsel that the vast majority of persons seeking asylum status under s 21 of the Refugees Act are foreigners who have entered the country illegally without obtaining transit permits.

H [17] Applications for asylum status must be made to a refugee-reception officer at a refugee-reception office. In that regard, s 8(1) stipulates that the Director-General of the DoHA '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'.

I [18] The Director-General has established five refugee-reception offices - one for each of Pretoria, Johannesburg, Durban, Port Elizabeth and Cape Town. The refugee offices process applications in accordance with centrally determined policies and procedures. The Cape Town refugee office was initially located at Customs House on the Cape Town J Foreshore. Owing to the increase in applications in recent years and the

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resultant development of huge...