---

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)        NOT REPORTABLE

(2)        NOT OF INTEREST TO OTHER JUDGES

(3)        REVISED.

CASE NO: 26477/2017

16/5/2018

 

In the matter between:

 

KHULUMANI NCUBE                                                                                  Applicant

 

and

 

THE MINISTER OF HOME AFFAIRS                                                      First Respondent

 

DIRECTOR GENERAL, DEPARTMENT

OF HOME AFFAIRS                                                                                    Second Respondent

REFUGEE STATUS DETERMINATION

OFFICER                                                                                                       Third Respondent

 

CHAIRPERSON, STANDING COMMITTEE

FOR REFUGEE AFFAIRS                                                                          Fourth Respondent

 

CHIEF IMMIGRATION OFFICER OF THE

DEPARTMENT OF HOME AFFAIRS                                                       Fifth Respondent

JUDGMENT

NEL AJ

[1]        In this application the applicant seeks an order reviewing and setting aside the confirmation by the fourth respondent, of the decision of the third respondent, rejecting the applicant's application for refugee states as being " Manifestly Unfounded'.

[2]        The applicant also seeks an order that the matter be referred back to the fourth respondent for rehearing.

[3]        The applicant did not specifically seek the costs of the application, and merely recorded in prayer 3 that the applicant seeks an order “that the costs of suit”' .

[4]        During the address by applicant's counsel I was advised that the applicant also seeks the costs of an urgent application launched in order to release the applicant from detention and to suspend the implementation of the decision of the third respondent, as confirmed by the fourth respondent, rejecting the application for refugee status, pending the determination of this review.

[5]        It appears from the court file of the urgent application, that the matter came before His Lordship Mr Acting Justice Van der Westhuizen on 23 May 2017, that the urgent relief as sought was granted, and in respect of the issue of costs, that costs were ordered to be costs in the review application.

[6]        The respondents, who filed a notice of intention to oppose the relief sought on 18 May 2017, and who are represented by the State Attorney, did not file an answering affidavit, and there was no appearance on behalf of the respondents when the application was heard on 7 May 2018.

[7]        It appears from the allegations contained in the founding affidavit, which have not been disputed by way of an answering affidavit, that the applicant has been in the Republic of South Africa since 2009, and since such date, he has extended his refugee asylum status on 13 separate occasions. The applicant resides in an immovable property registered in the name of the Ncube Trust, and is self-employed as a tailor.

[8]        On 10 April 2017 the applicant attended at the offices of the Department of Home Affairs in Marabastad, when he was advised that his application for extension of refugee asylum status was rejected, and he was handed a rejection letter, dated 10 April 2017.

[9]        After being handed the letter, the applicant was placed under arrest, as being an illegal immigrant.

[10]     In terms of the letter dated 10 April 2017, it is recorded that the third respondent found the applicant's application to be "manifestly unfounded' in terms of section 24(3)(b) of the Refugees Act, No. 130 of 1998, as amended ("the Refugees Act"). It was also recorded in such letter that the Standing Committee for Refugee Affairs ("the Standing Committee") had reviewed the decision of the third respondent, as required by section 25(1) of the Refugees Act, and had upheld the decision of the third respondent.

[11]     It was recorded in the letter that the applicant's application had "been finally rejected as Manifestly Unfounded' .

[12]     After the detention of the applicant on 10 April 2017, an urgent application was launched, as already referred to above, which was heard on 23 May 2017 for the release of the applicant from detention.

 

THE RELEVANT PROVISIONS OF THE REFUGEES ACT

[13]     In terms of section 24(1) of the Refugees Act, a Refugee Status Determination Officer must consider an application for asylum, and may, request information, consult with a UNHCR representative, and provide information to such UNHCR representative.

[14]     In terms of section 24(2) of the Refugees Act, a Refugee Status Determination Officer must have regard to section 33 of the Constitution, and must ensure that the applicant for asylum fully understands the procedures, his or her rights and responsibilities, and the evidence presented.

[15]      In terms of section 24(3) of the Refugees Act, the Refugee Status Determination Officer must at the conclusion of "the hearing" exercise an option, which could include the granting of asylum, or the rejection of the application as manifestly unfounded, abusive or fraudulent, or unfounded, or refer any question of law to the Standing Committee.

[16]      If an application is rejected in terms of section 24(4), written reasons for the rejection must be provided to the applicant, and a record of the proceedings, and a copy of the written reasons must be submitted to the Standing Committee.

[17]      In terms of section 25(1) of the Refugees Act, the Standing Committee must review any decision taken by a Refugee Status Determination Officer in terms of section 24(3)(b).

 

AMENDMENTS TO THE REFUGEES ACT

[18]      As there were certain differences between the provisions of the Refugees Act quoted in the founding affidavit (and the applicant's heads of argument), and the copy of the Refugees Act that I was considering, I became concerned that the Refugees Act had been amended.

[19]      In order to ensure that the copy of the Refugees Act that I was considering, was the most current and correct version of the Refugees Act, I investigated the recent amendments to the Refugees Act.

[20]      The Refugees Amendment Act, No. 33 of 2008, which would substantially amend the Refugees Act, including dissolving the Standing Committee and the Appeal Board, was assented to on 21 November 2008, but has not been proclaimed, and has accordingly not come into effect.

[21]      The Refugees Amendment Act, No. 12 of 2011, which would also substantially amend the Refugees Act, including setting out how applications rejected as being manifestly unfounded must be dealt with, was assented to on 21 August 2011, but has not been proclaimed, and has accordingly not come into effect.

[22]      The Refugees Amendment Act, No. 10 of 2015, was proclaimed, and came into effect, on 27 September 2015. The amendments only relate to section 21, and are not relevant to this application.

[23]      The Refugees Amendment Act, No. 11 of 2017, which would also substantially amend the Refugees Act, was assented to on 14 December 2017, but has not yet been proclaimed, and has accordingly not yet come into effect.

[24]      In the circumstances, I established that the version of the Refugees Act that was considered by me, and set out in Butterworths Statutes of South Africa, 2017, Volume 2, was the correct and current Refugees Act.

 

THE APPLICANT'S CONTENTIONS

[25]     The applicant alleged that the decision of the third respondent, to the effect that the applicant's application for asylum was manifestly unfounded, was procedurally unfair in that the third respondent did not follow the provisions of section 24(1) of the Refugees Act, that the third respondent did not comply with the mandatory procedure prescribed by section 24(2) of the Refugee Act, that the third respondent did not grant the applicant a hearing, that the third respondent did not comply with the provisions of section 24(4) of the Refugees Act, and did not have regard to the effect upon the applicant if the applicant was forced to return to Zimbabwe.

[26]     The applicant also contended that the decision of the Standing Committee was procedurally unfair in that the Standing Committee did not grant the applicant a hearing as required by section 26(2) of the Refugees Act, that the Standing Committee failed to follow the procedure set out in section 26(3) of the Refugees Act, that the Standing Committee failed to advise the applicant of the date of 'the hearing as required, and did not provide the applicant with notice to submit heads of argument as required by rule 7(2) of the Rules of the Refugee Appeal Board.

[27]      The applicant also alleged that the decisions of the second respondent and the fifth respondent were procedurally unfair and unconstitutional for a number of reasons.

[28]      The applicant also contended that he had been unable to exhaust his internal remedies, since he was not informed of any internal remedies.

[29]      As set out above, the respondents did not file any answering affidavits, and the allegations set out in the founding affidavit remain unchallenged.

 

THE CONTENTIONS RELATING TO THE THIRD RESPONDENT

[30]      The allegation that the conduct of the third respondent was unfair on the basis that the third respondent did not exercise a discretion to follow the provisions of section 24(1) of the Refugees Act does not have any merit, as the provisions of section 24(1) of the Refugees Act are not peremptory.

[31]      There are no allegations made in order to justify a conclusion that the decision of the third respondent not to follow the procedure was unfair or incorrect.

[32]      As regards the allegation that the third respondent did not comply with a mandatory provision as prescribed by section 24(2) of the Refugees Act, which requires the third respondent to ensure that the applicant fully understand the procedures, rights and responsibilities and the evidence presented, there is nothing to gainsay the allegations of the applicant in such regard.

[33]      As regards the allegation that the third respondent did not grant the applicant a " hearing" , there is, in the absence of an answering affidavit, no reason not to accept that no hearing was provided to the applicant. Regulation 10 of the Refugee Regulations promulgated in terms of section 38 of the Refugees Act requires a Refugee Status Determination Officer to hold a " non-adversarial hearing" , at which an applicant may be legally represented .

[34]      As regards the allegation that the third respondent did not comply with the provisions of section 24(4) of the Refugees Act, and by implication did not provide the applicant with written reasons fo'r the decision, and did not provide a record of " proceedings" , and a copy of the written reasons to the Standing Committee such allegation is unchallenged.

[35]      As regards the allegation that the third respondent did not apply his mind to the conditions in Zimbabwe, and the potential consequences of the applicant being returned to Zimbabwe, there is no evidence that the third respondent did, or did not, apply his mind to such factors. The allegations made in such regard in the founding affidavit by the applicant are extremely scant, and devoid of the necessary detail and particularity required to support the allegation made.

[36]      In respect of the various allegations made against the third respondent, it certainly appears (in the absence of any response) that the third respondent did not comply with the requirements set out in sections 24(2) and 24(4) of the Refugees Act, and with the requirement to hold a hearing as governed by Regulation 10.

 

THE CONTENTIONS RELATING TO THE STANDING COMMITTEE

[37]      As regards the allegation that the Standing Committee did not grant the applicant a hearing as required by section 26(2) of the Refugees Act, section 26(2) of the Refugees Act refers to a hearing before an appeal board, in respect of a decision taken by a Refugee Status Determination Officer in terms of section 24(3)(c) of the Refugees Act.

[38]      The applicant stated that the decision of the third respondent was made in terms of section 24(3)(b) of the Refugees Act, which is borne out by the letter attached to the founding affidavit as annexure "A". In the circumstances, an appeal arising from a decision made in terms of section 24(3)(c) is not applicable to the applicant.

[39]      In addition, it should be pointed out that section 26 refers to hearings by the Appeal Board, and not the Standing Committee as alleged in paragraph 17 of the founding affidavit.

[40]     The applicant did not lodge an appeal to the Appeal Board, and it is therefore irrelevant whether an appeal can only be lodged against a rejection in terms of section 24(3)(c) or against a rejection in terms of section 24(3) in its entirety.

[41]     The applicant did however contend that he was not advised of any internal remedies. Having regard to the provisions of the Refugees Act, there were in any event no further- internal remedies available to the applicant.

[42]     Insofar as it is alleged that the decision of the Standing Committee was procedurally unfair, in that the Appeal Board failed to follow the procedures set out in section 26(3) of the Refugees Act, such contention is without merit, as the conduct of the Appeal Board cannot in any way impinge on a decision taken by the Standing Committee, which is not obliged to follow the procedure set out in section 26(3). There is in any event no evidence or allegations that the Appeal Board became involved at any stage.

[43]     The allegation that the Standing Committee failed to notify the applicant of the date of a hearing by the Appeal Board, and failed to notify the applicant of the requirement to file heads of argument before the Appeal Board, such allegations similarly do not have any merit, as there is no obligation on the Standing Committee to provide the applicant with the date of a hearing, particularly in circumstances where any hearing would only follow after an appeal to the Appeal Board, which in this instance did not take place.

[44]     In respect of the various allegations made against the Standing Committee, there is no merit in any of the allegations, for the reasons set out above.

[45]     The allegation that the third respondent and the Standing Committee did not apply their minds to the applicant's application for asylum, on the basis that the third respondent made his determination, and the Standing Committee reviewed such determination on the same day, appears to be based on the content of the letter dated 1O April 2017, wherein it is recorded that the third respondent found the applicant's application to be " manifestly unfounded' , and that the Standing Committee reviewed the decision of the third respondent and upheld the decision. There is however no indication that both the decision and the review decision were taken on the same day.

 

CONTENTIONS RELATING TO THE SECOND AND FIFTH RESPONDENTS

[46]     As regards the allegations that the decisions of the second respondent and the fifth respondent were, inter alia, procedurally unfair, there is no evidence of any decisions having been taken by the second and fifth respondents.

[47]      The only suggestion of a decision being made by the second and fifth respondents is the allegation that the second and fifth respondents "decided" to detain the applicant without offering him an opportunity to exercise his rights of review and appeal in terms of the Promotion of Administrative Justice Act.

[48]      There is however no evidence relating to the exercise of the decision allegedly taken by the second and fifth respondents, or that any decision at all was taken by the second and fifth respondents.

[49]      In the founding affidavit the applicant refers to annexure "B" to the founding affidavit in support of the alleged "decision" to arrest and detain the applicant. Annexure "B" is a Notice in terms of Section 35 of the Constitution, issued by the South African Police Services, advising the applicant of his rights. There is no indication that such document emanates from the second or fifth respondents, or any of the other respondents.

[50]      It is noteworthy that in the heads of argument there are no submissions relating to a "decision" to arrest and detail the applicant. It was however submitted in the heads of argument filed on behalf of the applicant that the fifth respondent's alleged decision to deport the applicant did not comply with the mandatory procedures or conditions prescribed by section 8 of the Immigration Act No. 13 of 2002, as amended. There are however no allegations or evidence in the founding affidavit, relating to an alleged decision by the fifth respondent to deport the applicant.

[51]      There are no submissions at all in the heads of argument relating to the second respondent. During his address on 7 May 2018, the applicant's attorney did not make any submissions relating to the second or fifth respondents.

 

RELIEF SOUGHT

[52]      In the Notice of Motion, the only relief that is sought is the review and setting aside of the proceedings before the fourth respondent.

[53]      Whilst the allegations made by the applicant in support of the application to review and set aside the proceedings of the Standing Committee are vague and insubstantial, this may however be as a result of the conduct of the third respondent in not providing the applicant with the information referred to in section 24(4) of the Refugees Act.

[54]      It does however appear from the founding affidavit that the third respondent failed to comply with the requirements set out in section 24(3) and section 24(4) of the Refugees Act, and Regulation 10 of the Refugee Regulations, thereby stifling the applicant's entitlement to take such further steps as may be available to him.

[55]      In the absence of any affidavit filed on behalf of any of the respondents, and particularly the absence of any reasons for the decision taken by the third respondent, and the review thereof by the Standing Committee, I am satisfied that there are sufficient grounds to review and set aside the decisions taken by the third respondent, and the decision taken by the Standing Committee in reviewing the third respondent's decision.

[56]      The applicant only sought an order that the proceedings before the fourth respondent, being the review of the decision of the third respondent, be set aside. There would however be no purpose in simply making such order, as the applicant would still be deprived of his rights as set out in section 24(2) and section 24(4) of the Refugees Act. The applicant specifically raised the non-compliance with such sections by the third respondent as a ground for the review.

[57]       The application of the application for asylum must be considered in accordance with all of the relevant provisions of the Refugees Act, including, but not limited to, a review by the Standing Committee, if applicable, and an appeal before the Refugee Appeal Board, if applicable, as well as the Refugee Regulations, including, but not limited to the holding of a hearing as envisaged by Regulation 10.

 

COSTS

[58]      I pointed out to applicant's attorney that prayer 3 of the Notice of Motion was vague as to the issue of costs of this application. Applicant's attorney submitted that the prayer for costs was styled in the manner in which such relief is normally sought in a summons. Applicant's attorney submitted that the Notice of Motion should be interpreted as indicating that costs were being sought from the respondents.

[59]      As set out above, applicant's attorney advised me that the costs of the urgent application were to be costs in this review.

[60]      In the circumstances, the following order is made:

 

[60.1]  The decision taken by the third respondent to the effect that the applicant's application is manifestly unfounded is set aside;

[60.2]  The decision taken by the Standing Committee, presided over by the fourth respondent, confirming the third respondent's decision is set aside;

[60.3]  The application for asylum by the applicant is referred back to the third respondent for determination;

[60.4]   The determination of the applicant's application for asylum is to be dealt with in accordance with the relevant legislative procedures as set out in the Refugees Act;

[60.5]   The first, third and fourth respondents, jointly and severally, are to pay the costs of this review application on the unopposed scale;

[60.6]   The first, third and fourth respondents, jointly and severally, are to pay the costs of the urgent application heard on 23 May 2017.

 

 

 

 

G NEL

[Acting Judge of the High Court,

Gauteng Division,

Pretoria]

 

 

 

Date of Hearing:                       7 May 2018

Date of Judgment:                     16 May 2018

APPEARANCES

For the Applicant:                    Mr Masenya

Instructed by:                           Masekela Masenya Attorneys

012 771 5832

 

For the Respondents:               No appearance

---