Minister of Home Affairs and Others v Scalabrini Centre and Others

• Jurisdiction: South Africa
• Judge: Nugent JA, Lewis JA, Theron JA, Wallis JA and Willis JA
• Judgment Date: 27 September 2013
• Citation: 2013 (6) SA 421 (SCA)
• Docket Number: 735/12 & 360/13 [2013] ZASCA 134
• Hearing Date: 03 September 2013
• Counsel: MA Alberts SC (with G Papier and G Quixley) for the appellants. S Budlender (with N Mayosi and J Bleazard) for the respondents.
• Court: Supreme Court of Appeal

Nugent JA (Lewis JA, Theron JA and Wallis JA concurring):

[1] Many people stream into this country, generally through its northern B borders, claiming refuge from oppression and turmoil in their own countries. The Refugees Act 130 of 1998 provides the framework within which South Africa carries out its international obligation to receive refugees.

[2] It provides in s 8(1) that the Director-General of the Department of C Home Affairs —

'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'.

Each Refugee Reception Office must consist of at least one Refugee D Reception Officer and one Refugee Status Determination Officer.

[3] Applications for refugee status — called asylum in the statute — must be made in person to a Refugee Reception Officer at any Refugee Reception Office. The Refugee Reception Officer must accept the E application form, ensure it is properly completed, make such enquiries as he or she deems necessary, and then refer it to a Refugee Status Determination Officer. The Refugee Status Determination Officer must then consider the application, obtain such further information as might be relevant, and decide whether to grant or refuse asylum.

[4] Pending the outcome of an application for asylum the Refugee F Reception Officer must issue to the applicant an asylum-seeker permit — referred to in the papers as a s 22 permit — which allows the applicant to sojourn temporarily in the Republic, subject to any conditions that might be imposed. Once granted such a permit an asylum seeker is permitted to move freely in the country, and may be permitted to work or study. [1] G The permit may be extended from time to time by a Refugee Reception Officer.

[5] This appeal concerns a Refugee Reception Office that was established in Cape Town. No later than 30 May 2012 the Director-General decided that applications for asylum would no longer be received at the H Cape Town office, which would thenceforth deal only with applications to extend s 22 permits that had already been issued. In effect, the decision amounted to closure of the Refugee Reception Office, which is how it has been characterised by the authorities.

[6] The decision was challenged on review in the Western Cape High I Court by the Scalabrini Centre of Cape Town — a non-profit organisation founded by the Missionaries of St Charles to assist migrant

Nugent JA (Lewis JA, Theron JA and Wallis JA concurring)

A communities and displaced people. The respondents were the Minister of Home Affairs, the Director-General of that department, the Chief Director for Asylum Seeker Management — the first to third respondents, whom I shall refer to collectively as the authorities — and the Standing Committee for Refugee Affairs. [2]

B [7] Pending the outcome of the review an interim order was issued by Davis J compelling the authorities —

'to ensure that a Refugee Reception Office remains open and fully functional within the Cape Town Metropolitan Municipality at which new applicants for asylum can make applications for asylum and be C issued with s 22 permits'.

[8] Leave to appeal that order was refused and the authorities petitioned the President of this court. Meanwhile, in anticipation of that occurring, Davis J ordered that the interim order should take immediate effect. The petition was referred under s 21(3)(c)(ii) of the Supreme Court Act 59 of 1959 for oral argument before this court, the parties being advised they D must be prepared to address the merits of the appeal if called upon to do so.

[9] The application to review the decision succeeded before Rogers J, [3] who made the following orders:

'(a)

E The [Director-General's] decision, taken by no later than 30 May 2012, to close the Cape Town Refugee Reception Office to new applicants for asylum after 29 June 2012 is declared unlawful and set aside.

(b)

The [authorities] are directed to ensure that by Monday 1 July 2013 a Refugee Reception Office is open and fully functional F within the Cape Town Metropolitan Municipality at which new applicants for asylum can make applications for asylum in terms of s 21 of the Refugees Act 130 of 1998 and be issued with permits in terms of s 22 of the Act.'

He also ordered the Director-General to report to the Scalabrini G Centre's attorneys from time to time on progress being made towards compliance. The authorities now appeal those orders with the leave of that court.

[10] Apart from the office at Cape Town, the Director-General also established Refugee Reception Offices at Crown Mines (Johannesburg), H Marabastad (Tshwane), Port Elizabeth, Durban and Musina. The operation of those offices has confronted the authorities with considerable difficulty, arising from the large number of applicants who congregate there.

[11] In Port Elizabeth business proprietors and residents in the vicinity I of the office brought proceedings in the Eastern Cape High Court in

Nugent JA (Lewis JA, Theron JA and Wallis JA concurring)

2009, alleging that the presence of the office was causing a nuisance. A Jones J issued an order compelling the Minister of Home Affairs to abate the nuisance, and directed various steps to be taken towards that end. That notwithstanding, the problem continued, and in October 2011 the Director-General decided to close the office when the department's lease expired the following month. That prompted proceedings in the Eastern B Cape High Court at the instance of the Somali Association of South Africa. In February 2012 Pickering J held the decision to be unlawful — because it had been taken without prior consultation with the standing committee — and set it aside. He also ordered the authorities —

'forthwith to open and maintain a fully functional Refugee Reception Office . . . in the Nelson Mandela Bay Municipality'. [4] C

[12] Similar problems were experienced at City Deep. In March 2011 Horwitz AJ, sitting in the South Gauteng High Court, interdicted the authorities from conducting a Refugee Reception Office from the premises then being occupied, but allowed the authorities 60 days to D relocate. According to the Director-General alternative premises could not be found. The office was closed on 1 June 2011 and the files were transferred to Marabastad.

[13] The same problems were encountered in Cape Town. At first the Refugee Reception Office was located at Customs House on the E Foreshore — a building owned by the state but shared with others. [5] Complaints from other occupants and the local authority led to the office relocating to premises at Airport Industria in November 2006. Again there were complaints and occupants of properties in the vicinity applied to the Western Cape High Court for relief. On 24 June 2009 Rogers AJ (as he then was) declared the operation of the office to be unlawful F — on the grounds that the use contravened the zoning regulations and was a common-law nuisance — and ordered the authorities to terminate the operation of the Refugee Reception Office by no later than 30 September 2009. [6]

[14] The office was then relocated to Maitland. Once again the owner of G an adjacent property brought proceedings in the Western Cape High Court. They culminated in Binns-Ward J declaring the operation of the office to be unlawful, because it infringed the zoning regulations and created an actionable nuisance. [7] He interdicted the authorities from operating the office at the premises until the regulations were amended to permit it, and until measures had been put in place to abate the H

Nugent JA (Lewis JA, Theron JA and Wallis JA concurring)

A nuisance. The orders were suspended for some months on certain conditions. One of the conditions could not be met by the authorities and the orders became effective on 13 September 2010.

[15] Notwithstanding those orders the office continued functioning at the Maitland premises while the authorities sought alternative premises. B According to the authorities various premises were identified but found to be unsuitable. In March 2011 offers of premises were received in response to a public invitation to tender but again the authorities considered none to be suitable. The nature of the premises that were being sought, the conditions upon which they wished to occupy them, and the reasons the premises were found to be unsuitable are not C disclosed in the affidavits.

[16] The Refugee Reception Office was still being operated from the Maitland premises at the time the present proceedings were brought in June 2012. The affidavits are silent on whether anything was done in the D 14 months from March 2011 to secure alternative premises.

[17] The premises from which the office operated in Maitland were leased under three separate leases. One was for a road that was essential for access to the premises, and was terminable on one month's notice. On a date not disclosed in the affidavits the lessor gave notice that the E lease would terminate on 31 May 2012.

[18] On 7 May 2012 the authorities convened a meeting — they called it a 'refugee stakeholder engagement meeting'. It was attended by officials of the Department of Home Affairs and the Department of Public Works, and by representatives of a large number of interested organisations, including the Scalabrini Centre. [8]

F [19] The minute of the meeting records that those in attendance were told by the officials that the purpose of the meeting was —

'to inform stakeholders of the recent developments at the Refugee Reception Centre specifically towards the notice of termination of lease G (end May 2012) received from the Landlord of the access road'.

[20] One of the officials made a presentation that was described as follows in the minute:

'Mr Yusuf...