Kiliko and Others v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Judge: Van Reenen J
• Judgment Date: 16 January 2006
• Citation: 2006 (4) SA 114 (C)
• Docket Number: 2730/05
• Hearing Date: 30 May 2005
• Counsel: A Katz for the applicants. M A Albertus SC (with T Masuku) for the respondents.
• Court: Cape Provincial Division

Van Reenen J:

[1] The first to seventh applicants are adult male citizens of and resided in the Democratic A Republic of Congo prior to their entering the Republic of South Africa individually on different dates during the period 16 December 2004 to 28 February 2005. As such, they are 'foreigners' as defined in s 1 of the Immigration Act 13 of 2002 (the Immigration Act). In terms of s 9(4) of that Act, a foreigner may B enter the Republic of South Africa only if he or she produces to an immigration officer a passport valid for not less than 30 days after the expiry of his or her intended stay and has been issued with a valid temporary residence permit. C

[2] The Immigration Act, under the heading 'Temporary residence', provided in ss 10 to 23 for the issuing of different categories of permit granting foreigners the right of temporary residence in the Republic of South Africa. One such category is an 'asylum seeker permit'. D

[3] Section 28 of the Immigration Act provides that, subject to the Refugees Act 130 of 1998 (the Refugees Act), the Department of Home Affairs (the Department) may issue a permit to an asylum seeker on terms and conditions that are prescribed by regulation.

[4] An 'asylum seeker' is, in s 1 of the Refugees Act, defined as a person who is seeking refugee status in the Republic of E South Africa. As is apparent from the rather sparse averments in the affidavits deposed to by the applicants in support of the application, each one of them is an asylum seeker. Such averments have not been placed in issue by any of the respondents. F

[5] Section 21 of the Refugees Act provides that an application for asylum must be made to a refugee reception officer in person in accordance with the prescribed procedures, and at any refugee reception office. Section 22 of the Refugees Act provides that a refugee reception officer must, pending the outcome of such an application, issue an applicant with an asylum seeker permit in the G prescribed form. That section further provides that such a permit allows the holder thereof to sojourn in the Republic of South Africa, temporarily, subject to the conditions determined by the Standing Committee for Refugee Affairs (the Standing Committee) and not in conflict with the Constitution of the Republic of South Africa, 1996 H (the Constitution) or international law as endorsed thereon by the refugee reception officer. In terms of s 22(3) of the Refugees Act, such an officer is empowered to extend, from time to time, the period for which such a permit has been issued and also to amend the conditions subject to which it has been issued. I

[6] Section 21(4) of the Refugees Act provides that, until a decision has been made on an application for asylum and, where applicable, an applicant has exhausted his or her rights of review or appeal under ch 4 of that Act, no proceedings may be instituted or continued against a person in respect of his or her unlawful entry into or presence within the Republic of South Africa. J

Van Reenen J

[7] As, prior to the issuing of an asylum-seeker permit, any foreigner who has entered the Republic of South Africa in conflict with A the provisions of s 9(4) of the Immigration Act, is an 'illegal foreigner' as defined in s 1 thereof, and is, accordingly, subject to arrest, detention and deportation, it is self-evident that the issuing of an asylum-seeker permit is an important step in the process of being recognised as a refugee in the Republic of South Africa, as well as the B granting of asylum.

[8] Section 8 of the Refugees Act imposes a duty on the Director-General of the Department to establish as many refugee reception offices in the Republic of South Africa as he may deem necessary, after consultation with the Standing Committee, and to appoint at least one adequately trained refugee reception officer and C at least one similarly trained status-determination officer in each such office. Whilst the first subsection of s 8 of the Refugees Act and reg 2(1)(a) of the Refugee Regulations - Regulation 6779 published in Government Gazette 21075 of 6 April 2000 (the Refugee Regulations) - in imperative terms oblige an asylum D seeker, in person, to submit an application for asylum to a refugee reception officer at a refugee reception office without delay, the second subsection thereof, in equally imperative terms, imposes an obligation on the refugee reception officer concerned to accept from the applicant an application in the form prescribed by the Refugee Regulations (ss 2(a)); to ensure that the said form is E properly completed and, if necessary, to assist the applicant in that regard (ss 2(b)); and to submit the application, together with any information obtained from and relating to an applicant, to a status-determination officer for the purpose of arriving at a decision regarding the application (ss 2(d)). The refugee reception F officer may, in addition, conduct such enquiries as he or she deems necessary in order to verify the information furnished in an application for asylum (ss 2(c)).

[9] The Director-General of the Department has established five refugee reception offices in the Republic of South Africa. The refugee reception office for the Western Cape is located in Cape Town, in a building complex occupied by other operational divisions of the G Department. On 18 April 2005, the date on which Mr Arthur Frazer, the Deputy Director-General: National Immigration Branch in the Department (Mr Frazer) deposed to the respondents' answering affidavit, there were nine officials of the Department who were assigned to the refugee reception office in Cape Town. Of those officials, six were assigned to deal with the issuing and the extending H of asylum-seeker permits under s 22 of the Refugees Act, and three with status determinations under s 24.

[10] Each of the applicants who, on 22 March 2005, deposed to affidavits in support of the application chronicled their unsuccessful attempts at gaining access to the refugee reception I offices in Cape Town in order to apply for asylum. Their attempts were futile, despite the fact that a number of them slept outside the said offices throughout the night, on different occasions, or arrived there during the early hours of the morning. Each one of them, without fail, on a daily basis, except on or about 9 March 2005, observed that only a limited number of individuals J

Van Reenen J

were allowed to enter the refugee reception offices. On that date the 26 persons who succeeded in being A admitted were arrested and taken to Pollsmoor prison but later released. The Cape Times of 2 March 2005 carried a report of an incident that had taken place the previous day when frustrated asylum seekers inexcusably, but, in the light of the facts recited above, perhaps understandably, forced their way into the Cape B Town refugee reception office and had to be physically restrained by officials of the Department. Their actions resulted in injuries that necessitated hospital treatment, having been sustained by a number of those who had forced their way into the building.

[11] The applicants, asserting that the first, second and third respondents, by having unreasonably and unlawfully failed to C provide them with the necessary facilities and proper opportunities to submit applications to obtain refugee status in the Republic of South Africa, were acting in breach of the duties imposed by ss 2 and 22 of the Refugees Act; in conflict with the provisions of ss 9, 10, 12 and 33 of the Constitution; and in violation of the canons of international D law, in their own interest, in the interest of asylum seekers as a class, as well as the interest of the public, instituted proceedings in this Court in which they, on an urgent basis, asked for an order against the respondents:

'11.1

Declaring as invalid and inconsistent with the Constitution, the practice and policy of the respondents concerning E the manner in which they accept applications for asylum and issue permits in terms of s 22 of the Refugees Act, 1998;

11.2

directing them to accept applications for asylum by asylum seekers on or within a reasonable time of such application being made; F and

11.3

an order for costs, jointly and severally, the one paying the other to be absolved.'

[12] The applicants' locus standi to have brought the instant application was not assailed. To the extent that, despite G the fact that the applicants reserved their rights thereanent, the relief sought by them may have been rendered moot by reason of the fact that, since the institution of the application, asylum-seeker permits have been issued to them, they, in my view, were, in any event, entitled to have brought the application, acting in the public interest in terms of the provisions of s 38(d) of the Constitution. H I say so as, in my view, most, if not all, of the criteria required for standing under that subsection that were enumerated by O'Regan J in Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1) in para [234], and Yacoob J in Lawyers for Human Rights and Another v Minister I of Home Affairs and Another 2004 (4) SA 125 (CC) (2004 (7) BCLR 775) in para [18], are present, in particular, their vulnerability because of a lack of means, support systems, family, friends or acquaintances; a likely lack of or limited understanding of the South African legal system and its values; and also a limited knowledge of any lawyers and non-governmental organisations that would be able to assist them. J

Van Reenen J

[13] The respondents opposed the application and delivered and filed an answering affidavit deposed to by Mr Frazer, as well as a A confirmatory affidavit by Mr Jurie de Wet, the Chief Immigration Services Officer in the Department in the Western Cape (Mr De Wet)...