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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GRAHAMSTOWN)

                                                                              CASE NO: 2811/2019

                                                                                   Date heard:  04/10/2019

                                                                                        Date delivered: 04/10/2019

                                                                                  Reasons available: 08/10/2019

In the matter between:

LEFAMO MATEWOS MEGABO                                           Applicant

and

MINISTER OF HOME AFFAIRS                                          First Respondent

DIRECTOR GENERAL: DEPARTMENT OF                      Second Respondent

HOME AFFAIRS

DIRECTOR OF PUBLIC PROSECUTIONS                       Third Respondent  

 REASONS FOR ORDER

ROBERSON J:

[1]          It is not disputed that on 13 August 2019 the applicant, an Ethiopian national, was arrested by an immigration officer for allegedly contravening s 49 of the Immigration Act 13 of 2002, thereafter appeared in the Magistrate’s Court Mdantsane, and has been remanded in custody from time to time at Westbank prison.  A bail application was set to be heard on 7 October 2019. 

[2]          The precise subsection of s 49 of the Immigration Act was not mentioned in the founding affidavit.  Section 49 provides for a number of offences, but I assume it was s 49 (1) (b) which provides that any illegal foreigner who fails to depart when ordered to do so by the Director-General is guilty of an offence.  The precise offence is not really relevant for the purposes of this judgment.  What is relevant is that the applicant was arrested and detained for allegedly committing an offence in terms of the Immigration Act.  It is not in dispute that presently he is not in possession of an asylum seeker permit issued in terms of s 22 of the Refugees Act 130 of 1998.

[3]          On 27 September 2019 the applicant launched this application as a matter of urgency.  Following my directive, it was to be heard on 30 September 2019 at 14h15.  The matter could not be heard then because the notice of motion served on the first and second respondents was defective.  I was also of the view that the third respondent should be given notice.  The third respondent was eventually joined and served and the matter was heard on 4 October 2019.  In his notice of motion the applicant sought an order declaring his continued detention, pending a judicial review of his asylum application, to be unlawful; an order that he be released from detention in order to pursue his review remedies; an order that the second respondent discontinue any proceedings against the applicant; and an order that the second respondent issue the applicant with an asylum seeker temporary permit pending the applicant’s judicial review application issued under case number 2132/2016 in the Port Elizabeth High Court.  It is common cause that that application was issued and served on the respondents in that application.

[4]          On 4 October 2019 I dismissed the application with costs, indicating that my reasons for doing so would follow.  My reasons are set out below.

[5]          In this application the applicant relied essentially on s 21 (4) (a) of the Refugees Act which provides:

“(4) Notwithstanding any law to the contrary, no proceedings may be instituted or continued against any person in respect of his or her unlawful entry into or presence within the Republic if-

   (a)   such person has applied for asylum in terms of subsection (1), until a decision has been made on the application and, where applicable, such person has had an opportunity to exhaust his or her rights of review or appeal in terms of Chapter 4;”

[6]          The founding and replying affidavits were deposed to by the applicant’s attorney, Mr N L Goqa.  Annexed to the founding affidavit was a power of attorney signed by the applicant at Mdantsane on 18 September 2019.

[7]          According to Mr Goqa the applicant was unable to depose to the founding affidavit because he is in custody in East London.  The applicant arrived in South Africa during 2013 and lodged an asylum application at the Durban Refugee Reception Office.  He was issued with an asylum seeker temporary permit which was renewed on several occasions.  During 2016 his asylum application was rejected by the Refugee Status Determination Officer (the RSDO).  This decision was sent on automatic review to the Standing Committee for Refugee Affairs.  The rejection was upheld and the applicant was ordered to leave the country.  The applicant then instructed JCM Attorneys, Port Elizabeth, to launch the review application in the Port Elizabeth High Court.  After the application was launched, the applicant’s asylum seeker temporary permit was extended on several occasions by the Durban office.  Thereafter a practice was established whereby persons were given notice to appear each month before an immigration officer to report on the status of their review application.

[8]          These monthly appointments proved too costly for the applicant because he lost his employment after constantly taking leave.  He stopped going to the Durban office to renew his temporary permit and also failed to instruct JCM Attorneys to finalise the review application.

[9]          The magistrate at Mdantsane was shown a copy of the review application but insisted that a formal bail application should be made.  It was set to be heard on 25 September 2019 but owing to the absence of an interpreter was postponed to 7 October 2019.  In the meanwhile Mr Goqa contacted the State Attorney’s office in relation to the review application and was informed that their file had been closed because the application had not been pursued.  In his interaction with the immigration officer, Mr Goqa was informed that the applicant would not be released and that the applicant could approach a court.

[10]      Mr Goqa alleged that on his arrest and thereafter the applicant was not informed of his rights in terms of s 34 of the Immigration Act or in terms of Article 36 (1) (b) of the Vienna Convention on Consular Relations 1963 or in terms of s 35 of the Constitution.  It was further alleged in the founding affidavit that the applicant’s detention became unlawful the minute he told the officials of the Department of Home Affairs that he has a pending judicial review.

[11]       In the founding affidavit Mr Goqa said he would not set out the details of the applicant’s asylum application for reasons of confidentiality as provided for in s 21 (5) of the Refugees Act.  However an incomplete copy of the applicant’s review application in the High Court was annexed to the founding affidavit.  The respondents in that application are the Minister of Home Affairs, the Refugee Appeal Board, Maemo Chipu who is/was the Appeal Board’s Chairperson, and the RSDO.  The applicant seeks an order reviewing and setting aside the Appeal Board’s decision rejecting his application for refugee status, and other relief.  In the founding affidavit in that application the applicant stated the following, under the heading “Background” (all sic):

“20.  I was born on 17 June 1989, in Ethiopia.

21.  I arrived in the Republic of South Africa during, having gained entry into the Republic of South Africa through the Zimbabwe Boarder post.

22.  Immediately after gaining entry into the Republic, I made my way to the Durban Refugee Reception Office to apply for asylum.  I chose this office because I was informed by fellow countrymen whom I met once inside the Republic that this was the best office from which I could apply for asylum.

23.  I am a supporter of the SEPDC in my country of origin as will be apparent form the record which will be furnished in these proceedings.

24.  Prior to leaving Ethiopia, the police came to my House looking for supporters of the SEPDC, before they could get into my home I managed to escape.  I was a well-known supporter of the SEPDC amongst my peers at school and I knew it would be easy for the officers to get to me.  I was also well known for distributing the SEPDC pamphlets within my community.

25.  My uncle informed was assaulted and arrested for about six months by members of the ruling Ethiopian people’s Revolutionary Democratic Front (hereinafter referred to as EPRDP) forcing him to inform them of my whereabouts.  The said officers informed my uncle that if he did not disclose my whereabouts they would kill him.

26.  They further informed my uncle that once they found me they would kill me and return my corpse to him for burial.

27.  For the safety of my family and myself, my uncle advised me to flee Ethiopia immediately.

28.  I then immediately left Ethiopia for Kenya, whilst In Kenya I was informed by other refugees from my country that the best place to seek asylum was South Africa.

29.  After having hitched hiked over four countries namely, Kenya; Tanzania; Malawi and Mozambique I arrived in South Africa, and as applied for asylum at the Port Elizabeth Refugee Reception Office shortly after my arrival in the Republic.  Upon my application for asylum I was immediately issued with a section 22 permit which allowed me to sojourn the Republic whilst my application for asylum was being  determined.

30.  About a few months I was given an appointment with the RSDO whom spoke to me in English.  I cannot communicate in English but only in Amharic.  Even though an Amharic interpreter was provided, I was told not to trust him by other asylum applicant whom I had met outside the Refugee Reception Centre.  It was said that the said interpreter is an agent of the Ethiopian government in South Africa and therefore did not relating the truth to the RSDO when interpreting on behalf of OLF supporters.

31.  The RSDO took a decision rejecting my application for asylum; I am not in possession of the said decision at this stage.

32.  I lodged an appeal against the decision of the RSDO with the Refugee Appeal Board (RAB).  I am not in possession of the said decision.

33.  During the appeal I had repeated what I had informed the RSDO’s at my initial interview.  I cannot go back to my country as I face a real risk of persecution if I am returned.

34.  I now seek to be granted a hearing in terms of Rule 53 so that a judge of this Honourable Court can determine my claim in terms of the Act.”

[12]       The chief resistance to the application was based on a judgment of Goosen J in this division, in the matter of Tekalign v Minister of Home Affairs and Others and two similar cases [2018] 3 All SA 291 (ECP).  At paragraph 3 of the judgment Goosen J stated:

“On 8 May 2018, I presided in motion court. There were several matters before me in which relief, in one form or another, was sought against the first respondent and the Department. When preparing the roll I discovered that in the three matters which form the subject of this judgment (to be referred to herein as the Tekalign, Makese, and Mbuku matters), the fact specific averments made to establish the applicants’ entitlement to refugee status were identical. Indeed the founding affidavit contained not only the identical narrative, it repeated precisely the same grammatical and other errors. Given that the applicants were represented by two firms of attorneys and had apparently fled from different countries at different times, I considered that the founding affidavits could not possibly reflect the true experiences of the applicants. It struck me that the persons responsible for the drafting of the affidavits must have known that this was so and that they were, accordingly, party to an attempt to mislead the court.”

(The footnote to this paragraph indicated that Tekalign was from Ethiopia and the other two applicants were from the Democratic Republic of Congo.)

[13]       Goosen J went on to relate that he had requested the Registrar to draw files in all matters against the Department which had been on the court roll in the preceding two months and in which the same two firms of attorneys were involved.  On receiving 25 files, he discovered that five of the cases involving JCM Attorneys had used identical founding affidavits.

[14]       Goosen J reproduced a portion of the applicant Tekalign’s founding affidavit, also under the heading “Background”.  It is almost word for word identical to the applicant’s founding affidavit in his review application, with the same paragraph numbering.  There are even the same grammatical and spelling errors.  They differ in that Tekalign said that he entered South Africa through the Mozambique “boarder” post and it was his father who was assaulted by the ruling party’s members.  Tekalign also stuck to his membership of the SEPDC throughout, whereas the applicant, in paragraph 30 of his affidavit, referred to OLF supporters.  In the other two matters before Goosen J the affidavits differed in respect of the country of origin, the acronyms of the political parties or organisations, and the countries traversed in order to reach South Africa.

[15]       At paragraph 11 of the judgment Goosen J went on to say the following:

“The probability that three persons each seeking to be granted asylum status on the basis of political persecution in their home country would experience precisely the same incidence of persecution is so remote that it can be discounted entirely. The circumstances in which a person is compelled to flee his or her home country and seek asylum in another country is a fact-specific aspect of applications of this nature. This is not to say that there is not scope for patterns of political persecution and for individual asylum seekers to share similar experiences. But the state of events which trigger the flight to exile is unlikely to be precisely the same or to follow the same sequence and to be based on precisely the same conditions. This is particularly so when the asylum seekers hail from different countries separated geographically by huge distances and by different periods in time. Yet in each of the cases before me the applicants swore under oath that the content of the affidavit, and therefore the narrative described, was true and correct.”

[16]       Goosen J also discovered that there were another 54 applications founded on identical affidavits.  He considered the pending applications in general and at paragraph 35 said:

“I turn now to considering the pending cases in general. The first striking feature is that the identical averments are deposed to by applicants who hail from 8 different countries, namely Ethiopia, Bangladesh, Nigeria, Kenya, Tanzania, Cameroon, Ghana and the Democratic Republic of the Congo. I have already remarked on the improbability that each of these applicants will have experienced precisely the same sequence of events. The fact that the identical averments are made destroys the veracity of the allegations made under oath by each of the applicants concerned.”

[17]       Goosen J further referred to subtle changes in the affidavits, namely in some affidavits it was the applicant’s father to whom the threat to the applicant’s life was made, whereas in others it was the applicant’s uncle.  In this regard at paragraph 37 he said:

“This subtle change does not signify a ‘different’ fact-specific experience. Instead it speaks to the role of the drafter of the affidavit. It indicates that the drafter, in addition to making the changes required for a particular applicant, has altered a pre-existing narrative as recorded in the template of the affidavit. That a template is being used is to be discerned from the repetition of identical grammatical errors. The ‘altering’ of the narrative, of course, can only occur consciously. The drafter, knowing that he or she is using a pre-existing narrative introduces a change of character by referring to an ‘uncle’. Far from lending any credibility to the altered narrative, it indicates a deliberate and conscious introduction of a ‘fact’ which cannot possibly be true in every instance. This, in my view, points to a calculated attempt to mislead a court.”

[18]       Goosen J further considered the commissioning of the affidavits, with which I shall not deal in this affidavit, as well as the conduct of the legal practitioners involved in the applications.  At paragraph 47 he said:

“How does the existence of these 54 other cases, each founded upon identical allegations, impact upon the three matters presently before me? In my view the impact is to render the applications fatally defective. A court does not lightly disbelieve averments made under oath where there is no challenge to the allegations in opposing affidavits. Yet in this matter, as in the Sibiya matter referred to above, the extent of the use of the affidavit; the conscious ‘alteration’ of the narrative and its extensive use; the deficiencies in the commissioning of the affidavits; and the substantive deficiencies in the formulation of the applicants’ entitlement to the relief sought, suggest that the affidavits cannot be regarded as trustworthy.”

[19]       The three applications were dismissed.

[20]       The deponent to the answering affidavit in the present application, besides referring to the Tekalign judgment, pointed out that the applicant of his own accord abandoned the necessary appearances before the immigration officer for the purposes of reporting on the progress of the review application. 

[21]       It was submitted on behalf of the respondents that s 21 (4) (a) of the Refugees Act does not include a right of review by way of application to court.  Chapter 4 of the Refugees Act provides for review by the Standing Committee and an appeal to the Appeal Board.  I preferred to assume that the subsection contemplates an opportunity to apply to a court to review and set aside an internal decision.  Support for that was to be found in Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC) where Cameron J said with regard to s 21 (4) (a) at paragraph 33:

“In explicit terms, the provision affords express protection only to one who already “has applied” for asylum.  Nevertheless section 2 demands that its overriding and prevailing principle be considered.  This is that, apart from those officially recognised as refugees and afforded refugee status, no applicant for asylum may be expelled, extradited or returned to any other country or be subjected to any similar measure.”

[22]       Section 2 of the Refugees Act provides:

“General prohibition of refusal of entry, expulsion, extradition or return to other country in certain circumstances

Notwithstanding any provision of this Act or any other law to the contrary, no person may be refused entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is compelled to return to or remain in a country where-

   (a)   he or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group; or

   (b)   his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in either part or the whole of that country.”

[23]       I was of the view that this principle would apply to a person whose application had been rejected but who wished to pursue judicial review proceedings.

[24]       I was also of the view that the “proceedings” contemplated in s 21 (4) (a) include criminal proceedings for the sort of offence with which I assumed the applicant had been charged, namely an offence in terms of the Immigration Act.  The offence relates to the applicant’s application for asylum and I saw no reason why he should not be entitled to the protection of the Refugees Act in such criminal proceedings.    Again I was of the view that support was found in Ruta where Cameron J said at paragraph 46 (footnotes omitted):

“The two statutes can, as already indicated, be read in harmony: the Immigration Act affords an immigration officer a discretion whether to arrest and detain an illegal foreigner.  That discretion must, in the case of one seeking to claim asylum, be exercised in deference to the express provisions of the Refugees Act that permit an application for refugee status to be determined.”

[25]       What principally concerned me in this application was the aspect of bona fides.  The applicant wants to be released so that he can pursue his review application.  Even though the judgment of Goosen J, as he himself said, did not dispose of pending applications, I believed I was entitled to consider whether or not the applicant’s review application is bona fide.  I am in respectful agreement with Goosen J that the identically worded affidavits in so many matters suggest that they are not trustworthy and that there has been a calculated attempt to mislead a court.  While the affidavits were not drafted by the applicants themselves it is unlikely they did not know what was being presented to the court on their behalf.  They were the ones wanting to stay in South Africa and not to be returned to their home countries.  If they had factual support for their applications for asylum other than that given in the identical affidavits, one would have imagined their founding affidavits would have been drawn differently. 

[26]       The applicant in this matter has now been confronted squarely by the answering affidavit and Goosen J’s judgment, but has not explained why his affidavit was drafted in the way it was.  He has not for example said that his attorney got it wrong and told us what his true story is, or said that his story is true and was then copied by all the other applicants.  He has not explained why in his affidavit he said that he applied at two refugee offices after his arrival in South Africa, or why initially he said he is a member of the SEPDC but the government agent interpreter dishonestly interprets for OLF supporters.  One is then left with an affidavit which is untrustworthy and calculated to mislead the court.  I was of the view that I was entitled to take this aspect into account in this application, even though the review application is pending and is not before me.  It is however the foundation of the applicant’s alleged right to be released and his alleged unlawful detention.  Mr Goqa stated in the founding affidavit that the annexures to the founding affidavit, one of which was the review application, should be read as if specifically incorporated in the founding affidavit.  If the affidavit is untrustworthy, that feature of the review application must contaminate the bona fides of this application.  The applicant did not take the court into his confidence.  I was not persuaded that he was unable to depose to a founding affidavit.  He has been in contact with his attorney who also represents him in the criminal case.  He also signed a power of attorney. 

[27]       I considered very carefully the applicant’s right to pursue a judicial review and the fact that it was still pending.  I was mindful of the principles which emerged from several Supreme Court of Appeal decisions, referred to by Cameron J in Ruta at paragraph 16 as follows (footnotes omitted):

“Closely consonant, these four decisions established a body of doctrine that thrummed with consistency, principle and power.  The quartet of cases decided that asylum applicants held in an “inadmissible facility” at a port of entry into the Republic enjoy the protection of the Refugees Act and of the courts (Abdi); ordered the release from detention of an asylum seeker whose asylum transit permit had expired, and whose application for asylum had been rejected by the Refugee Status Determination Officer but whose appeal before the Refugee Appeal Board was pending (Arse); affirmed that if a detained person evinces an intention to apply for asylum, he or she is entitled to be freed and to be issued with an asylum seeker permit valid for 14 days (Bula); and conclusively determined that false stories, delay and adverse immigration status nowise preclude access to the asylum application process, since it is in that process, and there only, that the truth or falsity of an applicant’s story is to be determined (Ersumo).”

[28]       However I was of the view that this application is distinguishable because there has been a pronouncement on the veracity of and the motives behind the identical affidavits.  I was of the view that I was obliged to have regard to such pronouncement.

[29]       According to Goosen J’s judgment in Tekalign it was argued that the fact specific portions of his affidavit could be ignored because there was a basis to grant the relief, namely that the composition of the Appeal Board was deficient.  Goosen J said that “[t]o adopt this approach would be to ignore what is at face value, an abuse of the process and to countenance a deliberate attempt to mislead this court”.

[30]       Similarly in the present matter, the applicant stated in the founding affidavit in his review application that the decision of the Appeal Board was ultra vires and null and void because the Appeal Board was not properly constituted when it heard the applicant’s appeal.  I respectfully share Goosen J’s view expressed in the preceding paragraph.

[31]       It was further submitted on behalf of the applicant that he should not be detained at a correctional centre, because s 34 of the Immigration Act provides that a person arrested under this section shall be detained at a place determined by the Director-General.  However the applicant, on his version, was not arrested in terms of s 34.  He was arrested for allegedly contravening s 49 of the Immigration Act.  He is thus an accused person who is subject to the Criminal Procedure Act 51 of 1977.  This is borne out by his appearances in the magistrate’s court and his application for bail.

[32]       For these reasons I dismissed the application with costs.

____________________

 J M ROBERSON

JUDGE OF THE HIGH COURT

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