Scalabrini Centre and Others v Minister of Home Affairs and Others

• Jurisdiction: South Africa
• Judge: Rogers J
• Judgment Date: 19 March 2013
• Citation: 2013 (3) SA 531 (WCC)
• Docket Number: 11681/12
• Hearing Date: 07 February 2013
• Counsel: S Budlender (with N Mayosi) for the applicants. MTK Moerane SC (with LT Sibeko SC and GR Papier) for the respondents.
• Court: Western Cape High Court, Cape Town

Rogers J:

[1] The applicants are the Scalabrini Centre, Cape Town, and its trustees (I shall refer to them collectively as 'Scalabrini'). Scalabrini is a non-profit organisation which exists to assist migrant communities and J

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A displaced people. The first respondent is the Minister of Home Affairs (the Minister). The second respondent is the director-general (the DG) in the Department of Home Affairs (the DHA). The third respondent is an official in the DHA with the title Chief Director, Asylum Seeker Management. The fourth respondent is the Standing Committee for Refugee B Affairs (the SCRA), the body established by s 9(1) of the Refugees Act 130 of 1998 (the Act). The fifth respondent is the Minister of Public Works.

[2] On 19 June 2012 Scalabrini launched an application in which it sought urgent interim interdictory relief (part A of the notice of motion) C and final-review relief (part B of the notice of motion). The requested relief concerned a decision by the DHA to close the Refugee Reception Office (RRO) in Cape Town (the CT RRO). The application was opposed by the first to fourth respondents (the respondents). They filed D answering papers in respect of the part A relief on 27 June 2012. Those answering papers also contained the bulk of their response to the part B relief. Replying papers were filed on 9 July 2012. The part A relief was argued before Davis J on 19 July 2012. On 25 July 2012 he delivered a reasoned judgment pursuant to which he ordered that pending the final determination of the part B relief, the respondents were to ensure that an RRO remained open and fully functional within the Cape Town Metropolitan E Municipality at which new applicants for asylum could make application for asylum and be issued with permits in terms of s 22 of the Act.

[3] On 6 August 2012 the respondents delivered an application for leave to appeal against Davis J's judgment. On 15 August 2012 Scalabrini F applied in terms of rule 49(11) for leave to execute, ie for an order that the interim relief granted by Davis J would operate pending the outcome of the proposed appeal. I was informed from the bar that on 5 September 2012 Davis J refused leave to appeal and granted leave to execute. Presumably leave to execute was granted in anticipation of a further application by the respondents to the Supreme Court of Appeal (the SCA) G for leave to appeal. Such an application to the SCA was thereafter delivered.

[4] Despite the orders made by Davis J, the DHA did not on or after 25 July 2012 maintain an RRO in Cape Town at which new asylum H seekers could make asylum applications and obtain s 22 permits. Indeed, it is common cause that no such RRO has existed in Cape Town since 30 June 2012 (the last day of operations having been 29 June 2012). Scalabrini launched a contempt application. Prior to the hearing of the contempt application, and on 1 November 2012, the SCA directed that the respondents' application for leave for appeal be argued orally, with I the parties to be ready to argue the appeal if called on to do so. I was informed from the bar that when the contempt application came before Davis J he declined to hear it in the light of the SCA's direction.

[5] In regard to the part B relief, the respondents filed the record contemplated in rule 53(1), following which supplementary founding, J answering and replying papers were delivered. The part B relief was

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argued before me on 7 February 2013. Scalabrini was represented by A Mr S Budlender assisted by Ms N Mayosi. The respondents were represented by Mr MTK Moerane SC assisted by Messrs LT Sibeko SC and GR Papier. I reserved judgment. On 25 February 2013 the respondents delivered a further affidavit to which Scalabrini replied on 7 March 2013. I shall explain later the circumstances under which this occurred. B

The grounds of review in summary

[6] There are three grounds of review.

[7] The first is that the decision to close the CT RRO was made without C consultation with the SCRA, in alleged violation of s 8(1) of the Act. Important questions in this regard are whether by 30 May 2012 (when the consultation alleged by the respondents occurred) the DHA had already made the closure decision; and whether in any event what occurred on 30 May 2012, on its own or in conjunction with other circumstances, constituted 'consultation'. Since this ground of review D concerns alleged non-compliance with a statutory requirement for making a valid closure decision, it is unaffected by whether or not the decision was 'administrative action' as defined in the Promotion of Justice Act 3 of 2000 (PAJA).

[8] The second ground is that there was no proper consultation or E opportunity for representations by persons affected by the closure decision. Here the characterisation of the decision as 'administrative' action is relevant, though Scalabrini argues that even if PAJA does not apply, it can succeed on the principle of legality. Further questions relevant to this ground of review concern the determination of the date by which the closure decision was taken, and whether any interaction F which took place between the DHA and stakeholders prior to the decision date satisfied the alleged requirement that the DHA consult with affected persons and give them an opportunity to make representations.

[9] The third ground is that the closure decision was irrational and G unreasonable and based on irrelevant considerations and on a failure to take into account relevant considerations. Scalabrini argues that it can maintain this ground of review even if PAJA is inapplicable. A consideration of this ground will, as preliminary matter, require a consideration of the content and import (both factually and legally) of the closure decision. H

The legal framework

[10] In terms of s 8(1) of the Act the DG may establish as many RROs in the Republic as he or she, 'after consultation with' the SCRA, 'regards as necessary for the purposes of this Act'. Section 8(2) states that an RRO I must consist of at least one Refugee Reception Officer (RR Officer) and one Refugee Status Determination Officer (Determination Officer). Although the express terms of s 8(1) deal only with the establishment of an RRO, it has been held, and was common cause before me, that s 8(1) by necessary implication empowers the DG to disestablish an RRO, and requires consultation with the SCRA in regard to such disestablishment J

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A (see Somali Association for South Africa and Another v Minister of Home Affairs and Others 2012 (5) SA 634 (ECP) at 639F – I).

[11] Section 9(1) of the Act establishes the SCRA. Section 9(2) stipulates that the SCRA must function without bias and must be independent. The B composition of the SCRA is dealt with in s 10. It must consist of a chairperson and such number of other members as the Minister may determine, having regard to the likely volume of work to be performed by the SCRA. Section 10(2) lays down that the chairperson and other members must be appointed by the Minister, 'with due regard to their experience, qualifications and expertise, as well as their ability to C perform the functions of their office properly'.

[12] Chapter 3 of the Act (ss 21 – 24) deals with applications for asylum. The term 'asylum' is defined in s 1 as meaning 'refugee status' recognised in terms of the Act, while 'asylum seeker' means a person who is seeking recognition as a refugee in the Republic. The word 'refugee' is D defined as 'any person who has been granted asylum in terms of this Act'. Section 3 sets out the qualifications for asylum status. A person so qualifies if that person —

'(a)

owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership E 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 formal residence is unable or, owing to such fear, unwilling to return to it; or

(b)

F owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or a whole in his or her country of origin or nationality, is 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).'

G [13] In terms of s 21(1) an application for asylum must be made 'in person' in accordance with the prescribed procedures to an RR Officer 'at any' RRO. In terms of s 21(2)(d) the RR Officer must (after complying with his or her other duties under that section) refer the application to a Determination Officer who then determines the application in accordance H with s 24.

[14] The process of adjudicating an asylum application in terms of s 24 may take some time. Section 22 thus makes provision for the asylum seeker to be issued with an asylum-seeker permit. Section 22(1) states that the RR Officer must issue such a permit pending the outcome of the I asylum application. A s 22 permit entitles the asylum seeker to sojourn in the Republic temporarily, subject to any conditions determined by the SCRA. It is common cause that the permit entitles the holder to live, work and study in South Africa and to receive public healthcare.

[15] The s 22 permit is issued for a specified period. This period J apparently varies from case to case. I was informed from the bar that the

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period is usually two to six months. In terms of s 22(3) an RRO may from A time to time extend the period of the permit or amend its conditions.

[16] Because the adjudication of asylum applications often takes a long time (I was...