Refugee Appeal Board and Others v Mukungubila

• Jurisdiction: South Africa
• Judge: Maya P, Wallis JA, Mbha JA, Schippers JA and Mothle AJA
• Judgment Date: 19 December 2018
• Citation: 2019 (3) SA 141 (SCA)
• Docket Number: 185/2018 [2018] ZASCA 191
• Hearing Date: 19 December 2018
• Counsel: WR Mokhari SC (with MP Mdalana) for the appellants. DJ Vetten for the respondent.
• Court: Supreme Court of Appeal

Maya P (Wallis JA, Mbha JA, Schippers JA and Mothle AJA concurring): I

Introduction

[1] This is an appeal against the judgment of the Gauteng Division, J Pretoria (Maluleke AJ). The court a quo reviewed and set aside the

Maya P (Wallis JA, Mbha JA, Schippers JA and Mothle AJA concurring)

decision of the first appellant, the Refugee Appeal Board of South Africa A (the RAB). The RAB declined to entertain an appeal lodged by the respondent, Mr Paul Joseph Mutombo Mukungubila, an asylum seeker [1] from the Democratic Republic of Congo (the DRC). The court a quo then replaced the RAB's decision with one granting Mr Mukungubila asylum [2] in the Republic of South Africa and related declaratory relief. The appeal is with leave of the court a quo. B

Facts

[2] According to the founding and supplementary affidavits, Mr Mukungubila is a citizen of the DRC who seeks asylum in South Africa in terms C of s 21 of the Refugees Act 130 of 1998 (the Refugees Act). [3] He describes himself as a politician and a prophetic religious leader. His organisation, the Ministry for the Restoration from Black Africa, is based in the DRC and had over a thousand members. He has also worked for a human rights organisation known as CIFDH. He alleged that he left the DRC out of fear that he would be persecuted and murdered by the DRC D military and police forces. This had happened to some of his followers, who were savagely attacked and killed by the DRC security forces whilst unarmed and engaged in peaceful demonstration in an attempt to voice legitimate political protest. The attacks arose from his opposition to and public criticism of the DRC President, Mr Joseph Kabila, against whom he had previously contested presidential elections in the DRC. He alleged E that he had on a number of previous occasions been a victim of Mr Kabila's militia.

[3] Mr Mukungubila entered South Africa on 6 January 2014. He applied for asylum and was issued with an asylum seeker permit (the F permit) on 27 January 2014 in terms of s 22 of the Refugees Act, pending the outcome of his asylum application. The permit, which was valid for a period of 30 days at a time, was extended a few times up to 30 June 2014. On that date his asylum application was rejected by the Refugee Status Determination Officer (the RSDO), on the basis of the exclusions set out in s 4(1)(a) and (b) of the Refugees Act. Mr Mukungubila G did not accept this decision and intended to exercise his right of appeal to the RAB under s 26 of the Refugees Act. [4]

Maya P (Wallis JA, Mbha JA, Schippers JA and Mothle AJA concurring)

[4] A In preparation therefor, on 17 July 2014 he launched urgent proceedings against the second appellant, the Director-General of the Department of Home Affairs (the DG), and the third appellant, the Minister of the Department of Home Affairs (the Minister), in the Gauteng Division, Johannesburg. He sought to interdict the Department of Home Affairs from detaining him and instituting any proceedings B against him on the basis of his immigration status and presence in South Africa until he had exhausted the internal remedies and, if necessary, judicial review and appeal processes available to him under the law. He also sought an extension of the permit pending his appeal to the RAB. He undertook to lodge the latter proceedings within 10 days, and C thereafter launch judicial review proceedings against the RAB's decision within 30 days of its making, if the need arose. The urgent application was successful and on 25 July 2014 he was granted an order as prayed. [5]

[5] The success, however, did not extend to his appeal to the RAB, which he lodged on 24 July 2014. The RAB dismissed it on the basis that he D lacked the locus standi to bring the appeal and that in terms of s 24(3)(c) and s 26(1) of the Refugees Act, read with the Refugee Appeal Board Rules, the RAB lacked the jurisdiction to entertain an appeal brought against the RSDO's rejection of an asylum application under s 4(1)(a) and (b) of the Refugees Act.

[6] E As these processes were playing out, other proceedings, which ended up in the magistrates' court, were being pursued against Mr Mukungubila. Between February and May 2014, the Director of Public Prosecutions (the DPP) and the Minister of Justice and Constitutional Development (the Minister of Justice) were informed by Interpol and the DRC Attorney-General of an application by the DRC government for F Mr Mukungubila's extradition. [6] On 5 May 2014 the Minister of Justice

Maya P (Wallis JA, Mbha JA, Schippers JA and Mothle AJA concurring)

issued a notice in terms of s 5(1)(a) of the Extradition Act 67 of 1962. [7] A The notice confirmed receipt of a request for the surrender of Mr Mukungubila from South Africa to the DRC to stand trial on various criminal charges — a charge of murder contrary to articles 43 and 44 of the Criminal Code of the DRC; a charge of intentional aggravated assault contrary to article 43 of the Criminal Code of the DRC; a charge of B malicious destruction contrary to articles 110 and 112 of the Criminal Code of the DRC; and a charge of arbitrary and illegal detention contrary to article 67 of the Criminal Code of the DRC.

[7] Mr Mukungubila was subsequently arrested at the instance of Interpol on 15 May 2014 on the authority of a warrant for arrest issued pursuant to the provisions of s 5(1)(a) of the Extradition Act. But he was C released on bail on the same day pending the outcome of an extradition enquiry in terms of s 10 of the Extradition Act. [8] Thereafter he sought to have the extradition enquiry stayed pending the finalisation of his asylum application. He also launched review proceedings to challenge the RAB's D

Maya P (Wallis JA, Mbha JA, Schippers JA and Mothle AJA concurring)

decision A when it would not respond to his questions seeking clarity on the process it employed in making its determination. The DPP initially opposed the interim relief sought in the review proceedings, but subsequently agreed to a stay of the extradition enquiry pending finalisation thereof. The extradition process therefore remains suspended until this litigation runs its course.

Proceedings in the court a quo B

[8] Mr Mukungubila sought relief under two headings in the review proceedings. In Part A of his Notice of Motion he sought interim relief, C namely a stay of the extradition proceedings 'pending the outcome of the relief sought in Part B (including any subsequent appeal)'. It is in Part B that he sought the substantive review relief, inter alia, (a) the review and setting aside of the RAB's decision that it had no jurisdiction to entertain his appeal; (b) declarators that (i) a RSDO can determine whether or not asylum should be granted to an applicant notwithstanding the existence D of an application for the extradition of such applicant; (ii) the RAB has jurisdiction to determine appeals in such matters from the RSDO; (iii) pending the outcome of an asylum seeker's application for asylum, and appeal therefrom, if prosecuted, no extradition of such applicant can take place; (iv) the decision to grant refugee status to an applicant is to be made independently of the fact of the existence of extradition E proceedings; and (v) upon a finding of an applicant's qualification for refugee status in terms of the Refugees Act, no extradition of the successful applicant can occur; and (c) an order granting him asylum.

[9] The appellants and their erstwhile co-respondents opposed the F application. But they filed no answering affidavit in respect of part A of the notice of motion and it was consequently set down for hearing on the unopposed roll. On 14 November 2014 Makhubele AJ, in the Gauteng Division, Pretoria, granted an order 'pending the outcome of the relief sought in Part B (including any subsequent appeal) interdicting the [Additional Magistrate, Johannesburg and the Director of Public Prosecutions, Gauteng Local Division] G from commencing with and conducting an enquiry in terms of s 10 of the Extradition Act, in respect of Mr Mukungubila'.

[10] Part B was thereafter set down for adjudication before the court a quo. Mr Mukungubila challenged the RAB's decision on the grounds that H it was procedurally unfair, materially influenced by mistakes of law, was taken on the basis of irrelevant considerations and disregarded relevant considerations, was taken under the wrongful dictates of an extraneous urgency, and was ultra vires the powers which the Refugees Act vested in the RAB and obliged the RAB to entertain the appeal.

[11] I The court a quo was persuaded by Mr Mukungubila's contentions. It dealt with the matter on the erroneous basis that the appellants had

Maya P (Wallis JA, Mbha JA, Schippers JA and Mothle AJA concurring)

not filed an answering affidavit, which they had done, although they did A not respond to the factual allegations made in the founding and supplementary affidavits. (Nothing turns on this misdirection as the facts and the court's findings thereon were not disputed.) In the court's view, the RAB's decision that Mr Mukungubila had no locus standi to launch the appeal was unlawful as it was made solely on the strength of B Interpol's untested allegations against him, without affording him a hearing. The court found that the RAB's refusal to entertain the appeal was 'ultra vires its powers' because s 14(1)(a) of the Refugees Act obliges the RAB to hear and determine any question of law referred to it or any appeal lodged in terms of the provisions of the Refugees Act. C

[12] The court a quo held that Mr Mukungubila posed no danger to South Africa, entertained a well-founded fear of persecution and that the appellants had deliberately and unlawfully hampered his efforts to exhaust the internal remedies afforded by the Refugees Act. In the court's view, these reasons and its finding that...