Ruyobeza and Another v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Judge: Thring J and Desai J
• Judgment Date: 06 May 2003
• Citation: 2003 (5) SA 51 (C)
• Docket Number: 10152/02
• Hearing Date: 26 March 2003
• Counsel: Anton Katz for the applicants. K K Kekana for the respondents.
• Court: Cape Provincial Division

Thring J:

The first applicant says that he is a national of Burundi, by which I assume that he means that he is a citizen of that country and is not, at the same time, a South African citizen. He thus falls within the definition of an 'alien' for the purposes of the Aliens Control Act 96 of 1991. He is an electrical engineer, having qualified as such in 2001 at the Cape Technikon. He I is 30 years of age. In 1997 he fled from Burundi so as to escape from the escalating ethnic conflict there. His father was subsequently killed, and his mother is a refugee in Nairobi, Kenya. In August 1997 he was recognised as a refugee by the South African authorities and granted asylum in the Republic of South Africa. He is in J

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possession of a certificate dated 13 February 2001 affording him formal A recognition of his refugee status and granting him asylum in this country. The certificate was issued to him by the second respondent in terms of s 24(3)(a) of the Refugees Act 130 of 1998. The validity of this certificate, we are told, has been extended until October 2003. Having been continuously resident in the Republic of South Africa for more than five years, he is now desirous of applying in terms of s 25 of the Aliens Control Act for an immigration permit, B with a view to taking up permanent residence here.

Section 27 of the Refugees Act provides, in its relevant parts, as follows:

'A refugee - C

(a)

. . .;

(b)

. . .;

(c)

is entitled to apply for an immigration permit in terms of the Aliens Control Act, 1991, after five years' continuous residence in the Republic from the date on which he or she was granted asylum, if the Standing Committee certifies that he or she will remain a refugee indefinitely;' D

The Standing Committee referred to is that established by s 9 of the Act. Its full nomenclature is the Standing Committee for Refugee Affairs. For the sake of brevity and convenience I shall refer to it herein as 'the committee'. E

On 20 September 2002 the first applicant's attorneys wrote a letter to the committee requesting, on his behalf, that he be granted a certificate under s 27(c) of the Refugees Act to the effect that he will remain a refugee indefinitely. The request was motivated in the letter, and extracts of recent reports were enclosed as substantiation of the high level of violence still prevalent in Burundi. There was no response whatsoever from the committee to this F letter. Nor did a written reminder dated 15 October 2002 elicit any answer. As at 23 December 2002, when the first applicant deposed to his founding affidavit in this matter, there had still been no response. In his opposing affidavit deposed to on 13 February 2003 on behalf of first respondent, the Minister of Home Affairs, one M D Tlhomelang, who is apparently a director of the Department of G Home Affairs, complains that the first applicant is 'expecting the impossible'. Why it should have been impossible for the committee to respond in any way to the first applicant's request for more than three months, and why, instead, it ignored him completely, he does not satisfactorily explain. I would have thought that, if nothing else, a simple acknowledgment of receipt of the request coupled, perhaps, with H an indication of the time which would probably be required to process the request would not have been beyond the call of common courtesy, and would certainly have been within the bounds of possibility for an organ of State. However, be that as it may: nothing turns on this discourtesy save that it reflects the attitude of the department and its servants to the first applicant and his legal representative, which attitude I will become relevant later in this judgment.

Having been unsuccessful in eliciting any response from the committee, the first applicant launched the present application as a matter of urgency on 24 December 2002. He says the urgency lies in two areas. J

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First, his personal and professional life is being compromised by the A delay: thus, as a refugee, he is unable to obtain a loan from a bank so as to enable him to acquire a motor vehicle, which he needs for his work.

Secondly, the application attacks the legitimacy of members of the committee and seeks the setting aside of their appointment as such. This is a situation, the first applicant says, which must be remedied as soon as possible, because the respondents themselves require to B know whether their acts are lawful for the proper administration of the Refugees Act. Thus the matter is probably more urgent for the respondents than it is for him, the first applicant says.

In their opposing affidavits it was contended on behalf of the respondents that the matter lacked urgency, and that the application should be dismissed on that ground alone. I disagree, for C the reasons mentioned by the first applicant in his founding affidavit. Mr Kekana, who appears for the respondents, did not persist with this contention in argument, and I think wisely. I find that the matter is sufficiently urgent to warrant its being dealt with without further delay. D

The first applicant is joined in these proceedings by the Cape Town Refugee Centre as the second applicant. The latter has an interest in the decisions of the committee inasmuch as one of its objectives is to espouse the rights of refugees and asylum-seekers in this country.

The first and second respondents are, respectively, the Minister and the Director-General of the Department of Home Affairs. The first E respondent is responsible for the administration of the Refugees Act. The third, fourth and fifth respondents are all members of the committee. The sixth respondent is its chairperson. She is probably the same person as the fourth respondent. All the respondents oppose the application. F

The principal relief sought by the applicants is formulated as follows in their notice of motion:

'An order:

. . . G

2.

Declaring the decision by the first respondent to appoint, in terms of s 10(2) of the Refugees Act 130 of 1998 (the Refugees Act), the members of the Standing Committee for Refugee Affairs, established in terms of s 9(1) of the Refugees Act, to be unlawful, as being ultra vires and inconsistent with the Constitution of the Republic of South Africa Act 108 of 1996 and invalid ("the H appointment").

3.

Reviewing and setting aside the appointment.

4.1

Declaring that first applicant is entitled to apply for an immigration permit in terms of the Aliens Control Act 96 of 1991 alternatively the Immigration Act 13 of 2000 (sic: 2002). I

4.2

Ordering second respondent to accept and process any application for permanent residence made by first applicant.

5.

Directing that the costs of this application be borne by the first respondent and any other respondent who opposes the relief sought in prayers 2, 3 and 4 above.' J

Thring J

During the course of his argument Mr Katz, who appears for the applicants, handed in a draft order in terms of which the A relief prayed in paras 2, 3 and 4.1 of the notice of motion was slightly amended. Prayer 4.2 is not being proceeded with.

The relief sought in prayers 2 and 3 above is based on ss 9 and 10 of the Refugees Act. These sections read: B

'9. Standing Committee for Refugee Affairs

(1)

There is hereby established a Standing Committee for Refugee Affairs.

(2)

The Standing Committee must function without any bias and must be independent.

(3)

The headquarters of the Standing Committee must be determined by the Minister. C

10. Composition of Standing Committee

(1)

The Standing Committee must consist of -

(a)

a chairperson; and

(b)

such number of other members as the Minister may determine, having regard to the likely volume of work to be performed by the Committee. D

(2)

The chairperson and other members of the Standing Committee must be appointed by the Minister with due regard to their experience, qualifications and expertise, as well as their ability to perform the functions of their office properly.

(3)

A person may not be appointed as a member of the Standing Committee if he or she - E

(a)

is not a South African citizen;

(b)

has been sentenced to imprisonment without the option of a fine during the preceding four years.

(4)

At least one of the members of the Standing Committee must be legally qualified.'

In s 11 the powers and duties of the committee are set out. Inter alia, it - F

'(d)

must advise the Minister or Director-General on any matter referred to it by the Minister or Director-General;

(e)

must review decisions by Refugee Status Determination Officers in respect of manifestly unfounded applications;

(f)

must decide any matter of law referred to it by a Refugee Status Determination Officer; G

(g)

must monitor the decisions of the Refugee Status Determination Officers;'

In terms of s 25(1) of the Refugees Act the committee is obliged to review any decision taken by a Refugee Status Determination Officer to reject an application for asylum as manifestly unfounded, abusive or H fraudulent, and is also obliged to decide a question of law referred to it by such an officer. It is significant that, in terms of s 8(2)(a) of the Act, Refugee Status Determination Officers are required to be 'officers', and, presumably, consequently employees, of the Department of Home Affairs. I

Now, it is alleged by the first applicant, and not denied by the respondents, that the third, fourth, fifth and sixth respondents are all employees of the Department of Home Affairs. Whether or not they are the sole members of the committee is not clear on the papers. For the purposes of this case, it does not matter. However, it would appear that the third respondent is the Deputy Director of Refugee Affairs in the J

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