Minister of Home Affairs and Others v Watchenuka and Another

• Jurisdiction: South Africa
• Judge: Howie P, Navsa JA, Mthiyane JA, Nugent JA and Heher JA
• Judgment Date: 28 November 2003
• Docket Number: 10/2003
• Hearing Date: 10 November 2003
• Counsel: D J Jacobs for the appellants. Anton Katz for the respondents.
• Court: Supreme Court of Appeal

Nugent JA:

[1] This appeal concerns the rights of asylum seekers - people who claim to be taking refuge in this country from persecution or conflict elsewhere - and in E particular the extent to which they may be prohibited from being employed and from studying while they are waiting to be recognised as refugees.

[2] The rights and obligations of those who seek asylum are governed by the Refugees Act 130 of 1998, which was enacted to give effect to South Africa's international obligations to receive refugees F in accordance with standards and principles established in international law. The effect of s 2 of the Act is to permit any person to enter and to remain in this country for the purpose of seeking asylum from persecution on account of race, religion, nationality, political opinion or membership of a particular social group, or from a threat to his or her life or physical safety or G freedom on account of external aggression, occupation, foreign domination or disruption of public order.

[3] A person who wishes to be given asylum must apply to be recognised as a refugee. If that recognition is granted the refugee - and his or her dependants - enjoys the various rights specified in s 27 of the Act, which include the H right in certain circumstances to apply for permanent residence, the right to a South African travel document, the right to seek employment, and the right to receive basic health services and primary education. It is implicit in that section (particularly when it is read together with the Aliens Control Act 96 of 1991 and the Immigration Act 13 of I 2002 that replaced it) [1] that an applicant for asylum has none of those rights until he or she is recognised as a refugee.

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[4] An application for asylum must be made in the prescribed form to a Refugee Reception Officer at one of the Refugee Reception A Offices that are established in terms of s 8 of the Act. The Refugee Reception Officer must refer the application to a Refugee Status Determination Officer who is required to make appropriate enquiries and to determine whether or not the applicant qualifies for recognition as a refugee. If the application is refused the applicant is entitled to appeal. [2] B

[5] Section 22(1) of the Act provides that once an applicant has applied for asylum:

'The Refugee Reception Officer must, pending the outcome of [the] application . . . issue to the applicant an asylum seeker permit in the prescribed form allowing the applicant to sojourn in the C Republic temporarily, subject to any conditions, determined by the Standing Committee, which are not in conflict with the Constitution or international law and are endorsed by the Refugee Reception Officer on the permit.'

[6] The Standing Committee referred to in that section is the Standing Committee for Refugee Affairs established by s 9 of the Act. The Standing Committee comprises a chairperson (the third appellant) D and members appointed by the Minister of Home Affairs (the first appellant) and it 'must function without any bias and must be independent' (s 9(2)).

[7] The powers and duties of the Standing Committee are, amongst E others, to formulate and implement procedures for the grant of asylum, to regulate and supervise the work of the Refugee Reception Offices, to advise the Minister and the Director-General, to review certain decisions made by Refugee Status Determination Officers, and to monitor such decisions (s 11). Section 11(h) provides that the Standing Committee F

'must determine the conditions relating to study or work in the Republic under which an asylum seeker permit may be issued'.

[8] Section 38(1) of the Act authorises the Minister of Home Affairs to make regulations relating to certain matters including

'(c)

the forms to be used under certain circumstances and the permit to be issued pending the outcome of an G application for asylum;

(d)

. . .

(e)

the conditions of sojourn in the Republic of an asylum seeker, while his or her application is under consideration'.

[9] The Refugees Act came into operation on 1 April 2000. On 6 April 2000 the Refugee Regulations (Forms and Procedure) 2000 H were promulgated. [3] Regulation 7(1)(a) provides that a permit issued in terms

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of s 22 of the Act (ie the permit issued to an asylum seeker pending the determination of an A application for asylum)

'must be in the form and contain substantially the information prescribed in annexure 3 to these regulations'.

[10] The form prescribed by annexure 3 contains various conditions that the permit-holder is required to adhere to and includes a condition in the following terms: 'EMPLOYMENT AND STUDY PROHIBITED'. B The effect of reg 7(1)(a), when read together with the prescribed form, is that every asylum seeker is prohibited by the conditions in his or her permit from undertaking employment or from studying.

[11] The first respondent applied for asylum on 2 February 2002 after entering this country from Zimbabwe with her C disabled 20-year-old son. She alleges that she left Zimbabwe for fear that her son would be forced to join militant supporters of the ruling political party in Zimbabwe who she alleged were intimidating supporters of the political opposition. Shortly after applying for asylum she secured a place for her son to study at a Cape Town college. The first respondent is a widow who is trained as a pharmacy D technician. She alleges that her savings have been depleted and that she needs to secure employment in order to support herself and her son.

[12] A permit was issued to the first respondent as provided for in s 22(1) of the Act that included the standard conditions to E which I have referred and she and her son were thus prohibited respectively from undertaking employment and from studying.

[13] The first respondent applied to the Cape High Court for an order declaring the prohibition in annexure 3 to the regulations to be contrary to the Constitution and directing the appellants to permit F her and her son to be employed and to study respectively pending the finalisation of her application for asylum. The second respondent - which is a voluntary association that has amongst its objectives the provision of assistance to applicants for asylum - supported the application, not only in the first respondent's interest, but also in the interest of applicants for asylum generally. G

[14] The application came before H J Erasmus J, who granted the relief that was sought (the judgment of the Court a quo is reported as Watchenuka and Another v Minister of Home Affairs 2003 (1) SA 619 (C) (2003 (1) BCLR 62)) but he granted the appellants leave to appeal to this Court. H

[15] The Court a quo decided the matter on a narrow ground. The learned Judge pointed out that while s 38(e) of the Act empowers the Minister in general terms to make regulations relating to the conditions of sojourn in the Republic of an applicant for asylum, s 11(h) expressly enjoins the Standing I Committee to determine the conditions relating to study or work under which an asylum seeker permit may be issued. In those circumstances, the Court a quo reasoned, 'the Minister cannot make regulations about conditions relating to study and work in the Republic under which an asylum seeker permit may be issued without J

Nugent JA

having regard to the determination made by the Standing Committee'. It followed, A said the learned Judge, that because the Standing Committee had made no such determination at the time the regulations were made the Minister had no power to prohibit employment and study. (The implication of that finding is that the prohibition in annexure 3 to the regulations would have been intra vires if it had accorded with a prior B determination that had been made by the...