Minister of Home Affairs and Others v Somali Association of South Africa and Another

• Jurisdiction: South Africa
• Judge: Ponnan JA, Shongwe JA, Majiedt JA, Schoeman AJA and Meyer AJA
• Judgment Date: 25 March 2015
• Citation: 2015 (3) SA 545 (SCA)
• Docket Number: 831/2013 [2015] ZASCA 35
• Hearing Date: 16 February 2015
• Counsel: MA Albertus SC (with GR Papier and GGM Quixley) for the appellants. S Budlender (with J Bleazard) for the respondents.
• Court: Supreme Court of Appeal

Ponnan JA (Shongwe JA, Majiedt JA, Schoeman AJA and C Meyer AJA concurring):

[1] In his famous 'I am an African' speech, then Deputy President Thabo Mbeki paid tribute to his ancestors along with migrants from Asia, Europe and the rest of Africa and thanked them for teaching him that 'we could both be at home and be foreign' and that 'freedom was the D necessary condition for . . . human existence'. [1] And yet, as the South African Human Rights Commission observed: [2]

'If a society's respect for the basic humanity of its people can best be measured by its treatment of the most vulnerable in its midst, then the treatment of suspected illegal immigrants . . . offers a disturbing E testament to the great distance South Africa must still travel to build a national culture of human rights.'

[2] Many migrants, especially refugees and asylum seekers (who represent a small but significant portion of those who, for whatever reason, are attracted to South Africa) experience grave difficulty in legalising their F stay in this country. The condition of being a refugee connotes a 'special vulnerability as refugees by definition are persons in flight from the threat of serious human rights abuse'. [3] Hannah Arendt states that the —

'fundamental deprivation of human rights is manifested first and above all in the deprivation of a place in the world (a political space) which G makes opinions significant and actions effective'. [4]

That especial vulnerability is recognised in our legislation governing the status of refugees — the Refugees Act 130 of 1998 (the Act). Its passage H represented a significant break with a past characterised by measures

Ponnan JA (Shongwe JA, Majiedt JA, Schoeman AJA and Meyer AJA concurring)

designed to control the entry and presence of what were described as A 'aliens' in this country and proclaims instead a more progressive commitment to refugee protection in accordance with international standards. According to s 3 of the Act, which draws on international instruments such as the 1951 United Nations Convention Relating to the Status of Refugees, and the 1969 Organisation of African Unity B Convention Governing Specific Aspects of Refugee Problems in Africa, a person qualifies as a refugee if that person —

'(a)

owing to a well-founded fear of being persecuted by reason of his or C her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or

(b)

owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is D compelled to leave his or her place of habitual residence in order to seek refuge elsewhere; or

(c)

is a dependant of a person contemplated in paragraph (a) or (b)'.

I may add that in addition to the various formal legal obligations, South Africa has also committed itself to uphold the Declaration adopted at the E World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban in 2001. The Conference recognised the urgent need to translate the objectives of the Durban Declaration into a practical and workable plan. [5]

[3] But not every person who flees his or her home in the circumstances F referred to in s 3 of the Act will obtain asylum in this country. It is thus important to understand how asylum is sought and comes to be conferred in terms of our law. According to s 21 of the Act, every person who wishes to obtain asylum must apply in person to a refugee reception officer (the officer) at any Refugee Reception Office (RRO). To that end, the officer must ensure that the application form is properly completed G

Ponnan JA (Shongwe JA, Majiedt JA, Schoeman AJA and Meyer AJA concurring)

A and where necessary assist the applicant in that regard. The officer may conduct such enquiry as is deemed necessary in order to verify the information furnished by the applicant and, thereafter, submit the application together with such information as may have been obtained to a refugee status determination officer (RSDO). Pending the outcome of B that application the officer must, in terms of s 22 of the Act, issue such applicant with an asylum-seeker permit allowing him or her to sojourn in the Republic temporarily. Until the issuance of a s 22 permit (also described as an asylum seeker permit), such person is considered an illegal foreigner and subject to apprehension, detention and deportation in terms of the C Immigration Act 13 of 2002. Importantly, in terms of the Immigration Act, no person may employ (s 38), or, save for humanitarian assistance and aid, abet, assist, enable or in any manner help an illegal foreigner (s 42). An asylum seeker permit is thus essential to enable an asylum seeker to live, work and function in South Africa prior to the determination of his or her status.

D [4] After having made an application for asylum, an asylum seeker will usually be obliged to report in person from time to time to an RRO, inter alia, to: (a) review his or her asylum seeker permit; (b) be interviewed by the RSDO (s 24(1) and (2)); (c) be informed of the outcome of the application for refugee status (s 24(4)); (d) if necessary, lodge an appeal E against a rejection of the application to the Refugee Appeal Board (RAB) (s 26(1)); (e) attend a hearing of the RAB (s 26(3)); and (f) collect the decision of the RAB. Once a person satisfies the relevant authorities that he or she qualifies for refugee status, asylum will be granted and he or she is deemed a F refugee for the purposes of the Act. Even then, such person's refugee status must be renewed every two years. For that to happen he or she would be obliged to call in person on an RRO. The asylum- application process is invariably a protracted one. Timely access to an RRO is thus critical not just for asylum seekers to legalise their stay in this country, but also for the effective protection of their rights. In terms of s 27 of the Act, a refugee has a range of rights, including full legal G protection, the right to remain in the Republic and the entitlement to: (a) apply for an immigration permit, an identity document and a travel document; and (b) the same basic health services and primary education which inhabitants of the Republic receive from time to time. In practice, however, there are usually significant obstacles in the path of asylum H seekers and refugees. [6]

Ponnan JA (Shongwe JA, Majiedt JA, Schoeman AJA and Meyer AJA concurring)

[5] As at the beginning of 2011 there were six RROs in the country, A namely in Johannesburg, Pretoria, Cape Town, Durban, Musina and Port Elizabeth. Since then three of those six — Johannesburg, Port Elizabeth and Cape Town — have been closed either completely or to new applications by the Department of Home Affairs (DHA). Litigation challenging the lawfulness of each of those decisions followed. The B Johannesburg High Court (per Legodi J) declared the decision not to re-establish an RRO in Johannesburg following upon the closure of the one located at Crown Mines to be 'procedurally unfair and invalid' and remitted the matter to the Director-General of the DHA (the DG) for 'his or her reconsideration on the suitability or otherwise of establishing such an office in Johannesburg'. C

[6] On 16 February 2012 and at the instance of the Somali Association of South Africa, Eastern Cape, and the Project for Conflict Resolution and Development (the respondents) the Grahamstown High Court (per Pickering J) reviewed and set aside the decision to close the D Port Elizabeth RRO (PE RRO) to new applications 'without having in place an alternative RRO within the Nelson Mandela Bay Municipality'. Pickering J directed, inter alia, the Minister of Home Affairs (the minister), the DG and the chief director: asylum seeker management (the chief director) (collectively referred as the relevant authorities) to open and maintain a E fully functional RRO 'to provide services to asylum seekers and refugees including new applicants for asylum in the Nelson Mandela Bay Municipality'. The learned judge found the decision to be unlawful by reason of the failure on the part of the DG to consult with the Standing Committee for Refugee Affairs (SCRA) established in terms of s 9 of the Act. Pickering J accordingly declined to decide the other grounds of F review sought to be advanced by the respondents. On 14 May 2012 the learned judge refused leave to the relevant authorities to appeal and directed, in terms of rule 49(11) of the Uniform Rules, that, pending the outcome of any further appeal, his order that a fully functional RRO be opened and maintained not be suspended. On 28 August 2012 the petition by the relevant authorities seeking leave to appeal to this court was dismissed. That notwithstanding, and despite the order of Pickering J, G the PE RRO has remained closed to new applicants.

[7] On 29 June 2012 the Cape Town RRO (the CT RRO) was closed to new applicants for asylum. On 25 July 2012 the Cape High Court (per H

Ponnan JA (Shongwe JA, Majiedt JA, Schoeman AJA and Meyer AJA concurring)

A Davis J) granted an interim order inter alia directing the relevant authorities to ensure that a RRO remains open and fully functional within the Cape Town Metropolitan Municipality at which new applicants for asylum can make applications and be issued with s 22 permits. And like Pickering J, he too ordered that, notwithstanding any further application B for leave...