Watchenuka and Another v Minister of Home Affairs

• Jurisdiction: South Africa
• Judge: H J Erasmus J
• Judgment Date: 15 November 2002
• Counsel: Anton Katz for the applicants. D Jacobs for the respondents.
• Docket Number: 1486/2002
• Court: Cape Provincial Division

H J Erasmus J:

On 28 February 2002 the applicants brought an urgent application in which they sought an order in the following terms:

(i)

Condoning the applicants' non-compliance with the Rules of Court and granting leave for this application to be heard as a matter of urgency. H

(ii)

Declaring that the prohibition on work and study contained in annexure 3 read with reg 7(1) of the regulations made by first respondent in terms of s 38 of the Refugees Act 130 of 1998 is unconstitutional.

(iii)

Directing the respondents: I

(a)

to permit first applicant to be employed pending the finalisation of her application for asylum made on 7 February 2002 in terms of s 21 of the Refugees Act 130 of 1998;

(b)

to permit first applicant's son, Sipho Ezekiel Mlagisi, to pursue his studies pending the finalisation of first applicant's (and his) application for asylum made on 7 February 2002; J

H J Erasmus J

(c)

granting the applicants further or alternative relief; A

(d)

ordering any respondent who opposes this application to pay the costs thereof.

The matter was by agreement between the parties postponed to 4 June 2002 and thereafter to 14 August 2002. The matter was argued before me on 14 and 15 August 2002. Mr Katz appeared for the applicants and Mr Jacobs for the B respondents. I am indebted to counsel for their comprehensive and helpful arguments.

Parties and locus standi

The first applicant is Muriel Millie Watchenuka, a Zimbabwean C national. The second applicant is the Cape Town Refugee Centre, a voluntary association which provides assistance to asylum seekers in need.

The first respondent is the Minister of the Department of Home Affairs (the Minister) who is the Minister responsible for the administration of the Refugees Act 130 of 1998. The second respondent is the Director General of the Department of Home D Affairs, and the third respondent is the chairperson of the Standing Committee for Refugee Affairs, a committee established in terms of s 9 of the Refugees Act 130 of 1998.

In their papers the respondents asserted that the applicants do not have the capacity to launch the application and that they are E accordingly not entitled to the relief sought. At the hearing, the respondents did not persist with the objection to the applicants' locus standi.

The Refugees Act 130 of 1998

Introduction F

Prior to the Refugees Act 130 of 1998 coming into force, foreign nationals who made application for asylum and refugee status in South Africa were dealt with in terms of the provisions of the Aliens Control Act 96 of 1991. G

The Refugees Act 130 of 1998 (the Act) was, according to its long title and preamble, promulgated to give effect to international legal instruments, principles and standards relating to refugees and to provide for the reception into South Africa of asylum seekers. In 1995 South Africa became party to the 1951 United Nations Convention Relating to the Status of Refugees, the 1967 Protocol Relating to the H Status of Refugees and the 1969 Organisation of African Unity Convention Concerning the Specific Aspects of Refugee Problems in Africa.

The Act was assented to on 20 November 1998 and was put into effect as from 1 April 2000 (Proc 22 of 2000, Government Gazette 21075 of 6 April 2000). I

Definitions

Section 1 of the Act contains a number of definitions which are important within the present context. 'Asylum' means refugee status recognised in terms of the Act.

H J Erasmus J

The Act draws a clear distinction between those who are applying for A asylum and those who have been granted asylum and affords different rights to each of them. An 'asylum seeker' is defined as 'a person who is seeking recognition as a refugee in the Republic', and a 'refugee' 'means any person who has been granted asylum in terms of the Act'.

Refugee status B

Refugee status is provided for in s 3 of the Act. The section provides as follows:

'Subject to chap 3, a person qualifies for refugee status for the purposes of this Act if that person - C

(a)

owing to a well-founded fear of being persecuted by reason of his or 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; D 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 compelled to leave his or her place of habitual residence in order too seek refuge elsewhere; or E

(c)

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

Application for asylum

Chapter 3 (ss 21 - 24) of the Act deals with applications for asylum. Section 21(1) provides that an application for asylum must be made in person in accordance with prescribed procedures to a Refugee Reception F Officer at any Refugee Reception Office. Pending the outcome of the application, the Refugee Reception Officer issues the applicant with an asylum seeker permit in terms of the provisions of s 22 of the Act. Subsections (1) and (3) of s 22 provide as follows:

'(1) The Refugee Reception Officer must, pending the outcome of an application in terms of s 21(1), issue to the applicant an asylum G seeker permit in the prescribed form allowing the applicant to sojourn in the Republic temporarily, subject to any conditions, determined by the Standing Committee, which are not in conflict with the Constitution or international law and are endorsed by the Refugee Reception Officer on the permit. H

. . .

(3) A Refugee Reception Officer may from time to time extend the period for which a permit has been issued in terms of subsection (1), or amend the conditions subject to which a permit has been so issued.'

The decision regarding the application for asylum is taken by the Refugee Status Determination Officer. Chapter 4 (ss 25 - 26) makes I provision for reviews and appeals concerning that decision.

A person who is successful in his asylum seeker application and is granted asylum, is entitled to seek employment and is entitled to the same basic health services and primary education which the inhabitants of South...