Minister of Home Affairs and Another v Elias (29747/20) [2020] ZAGPPHC 481 (2 September 2020)

AHIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1) REPORTABLE: NO.

(2) OF INTEREST TO OTHER JUDGES: NO.

(3) REVISED.

CASE NO: 29747/20

In the matter between:

THE MINISTER OF HOME AFFAIRS

First Applicant

THE DIRECTOR-GENERAL:

DEPARTMENT OF HOME AFFAIRS

Second Applicant

and

EMMANUEL ELIAS

First Respondent

BINCHAMO GEBRE JOBORE

Second Respondent

J U D G M E N T (Leave to appeal)

DAVIS, J

[1] Introduction

1.1 The applicants in the application for leave to appeal were the respondents in an urgent application which came before this court in July of this year. I shall, for clarity’s sake, refer to the first applicant as the “Minister”, being the Minister of Home Affairs and the second applicant as the “ D-G”, being the Director-General of the Department of Home Affairs. The person whose status is in question is the first respondent, a 19 year old Ethiopian, “Elias”. He was, at the time of the urgent application, represented by his brother, the second respondent and their attorney.

1.2 After having received a belated answering affidavit on behalf of the Minister in the urgent application, I ordered on 22 July 2020 the office of the D-G to accept Elias’ application for asylum and submit it to the relevant Refugee Status Determination Office (“RSDO”). I also ordered the immediate release of Elias from the Lindela detention centre and ordered that his application for asylum must be given to the office of the D-G within 30 days.

1.3 After service of the order, Elias was released. On 12 August 2020 the Minister and the D-G delivered an application for leave to appeal which I heard via a virtual hearing on 26 August 2020. I shall deal with the grounds relied on for leave to appeal as they were formulated in the application itself hereunder.

[2] Asylum applications are not submitted by the D-G

2.1 One of the principal grounds on which the applicants seek leave to appeal, is the argument that the relief claimed which compelled the D-G to submit Elias’ application to the RSDO is not provided for in law.

2.2 It is correct that the D-G does not generally accept applications for asylum and neither does the D-G submit such applications to the RSDO. In terms of section 21(1) of the Refugees Act, 130 of 1998 (“the Act”) applications for asylum are accepted by a Refugee Reception Officer (“RRO”). After acceptance of an application as provided for in section

21(2)(a), the RRO then checks it for completeness as provided for in section 21(2)(b) and is entitled to make enquiries as to the contents of the application in terms of section 21(2)(c) of the Act. The RRO must then issue an asylum seeker permit pending the consideration of the application, which is then submitted to the relevant RSDO in terms of section 21(2)(d) of the Act.

2.3 The RSDO then, upon receipt of the asylum application in terms of section 24(1), is entitled (and obliged) to interrogate the contents and merits of the application and may call for further information in respect thereof. The RSDO is then required to take a decision in respect of the application and provide reasons therefor as provided for in section 24(3) of the Act.

2.4 Elias’ tale, as set out in the urgent application, was that until the commencement of the “Covid 19 hard lockdown” in March of this year, he and his brother had attended the Home Affairs Offices where applications for asylum are received in Pretoria on numerous occasions. Congestion, language problems and the “system being down” prevented the application actually being made. As set out in the written judgment delivered in respect of the urgent application, on 23 April 2020 Elias was arrested for being an illegal foreigner. He subsequently appeared in the Sasolburg Magistrates Court where his case was postponed for an interpreter of the Ahmaric language. Eventually he was convicted on 15 May 2020 and sentenced to R 1 000 or 30 days incarceration. Unable to pay the fine, Elias served his sentence, whereafter he eventually ended up being detained in Lindela detention centre.

2.5 At the time of hearing the urgent application, the RRO offices were closed. The application for leave to appeal appears to confirm that this is still the position and the offices will apparently remain closed until an undetermined date in September 2020. It was therefore not possible for Elias to comply with the provisions of the Act. On the other hand, the office of the D-G appeared to be open and the relief claimed against the D-G was not objected to during the urgent application on the basis now done. In urgent court, practicalities often dictate the course of action to be taken and the order granted was deemed the most appropriate manner in which Elias’ rights could in the interim be protected.

2.6 The order was not granted against the D-G himself. His office was simply compelled to accept the application. Insofar as RSDO offices might also be closed, the D-G can direct how those offices function and when and how RSDO’s should operate during Covid 19 restrictions, despite their offices not being formally open. The office of the D-G was therefore the most appropriate functionary exercising the administrative functions of Government under the Act to see to it that Elias’ application reaches the relevant RSDO in the circumstances of this case. No other practical solution has been suggested by the applicants. I therefore find that this contention has no reasonable prospect of success on appeal.

[3] There was no application for asylum

3.1 At the time of the hearing of the urgent application, no application for asylum had yet been made. The applicants now contend that the application should have been dismissed on this basis alone. Apart from the facts alluded to above regarding Elias’ difficulties in having made an application for asylum prior to his arrest, he experienced further difficulties in making contact with family or even his attorney while in Lindela. I have dealt with the vague denials hereof in the judgment in respect of the urgent application. The absence of a formal application has been overcome by the order that such an application be delivered within 30 days of the order (and Elias’ consequential release). I fail to see how this point should justify the granting of leave to appeal.

[4] RRO and RSDO offices closed

As a separate ground for leave to appeal, the applicants contend that the order granted is impossible to comply with. Their notice states that, not only are the RRO offices closed as reported by Elias in the urgent application, but the offices of the RSDO are at present also closed “until further notice which makes it impossible for applications to be submitted to the RSDO”. It is clear that the alleged impossibility is firstly temporary and secondly the office of the D-G is the best suited to attend to this hurdle. In similar circumstances as in paragraph 2.6 above, I also find no prospects of success on appeal on this point.

[5] The job-seeker issue

5.1 The applicants in their answering affidavit relied heavily on the forms completed by the relevant officials wherein it was indicated that Elias was a job-seeker, as opposed to being an asylum-seeker as contended in the urgent application.

5.2 I have in the written judgment delivered in the urgent application extensively referred to the contents of the different forms. Their contents provide limited clarification of this issue. No interpreter had been used as it had been done in the Magistrates Court. This, according to the applicants’ version, Elias had indicated was not necessary. This contention however relied on the indications by way of a “tick-box” type of completion of the forms used and I attached little weight to it. I have dealt with the incongruity of the forms’ contents themselves where it was suggested that Elias had previously entered the Republic as a thirteen –year old via O R Tambo airport without valid travel documents, but as a job-seeker. The argument on behalf of the applicants in trying to explain this improbability was that the information came from Elias himself. This only serves to confirm that the information on which the applicants seek to rely was extracted by the most superficial methods and collated with no investigation as to the contradictory nature thereof. No attempt at even the most basic verification via its own records or via the contacts disclosed by Elias was attempted.

5.3 Any further enquiry on this issue can be explored by the RSDO and his discretion is not limited in any way by the order granted. In that sense, the order was temporary in nature. I was, and remain satisfied that Elias had established a prima facie right, even if open “to some doubt” to make an application to qualify as an asylum seeker. I find no reasonable prospect of success on appeal on this aspect.

[6] Material disputes of fact

6.1 Motion procedure and, in particular, urgent applications, are not designed to finally determine disputes of fact. They are designed to facilitate the most expeditious way to prevent a possible irreparable infringement of a person’s rights or the occurrence of harm. In the present instance, no final determination of facts regarding Elias’ circumstances, alleged persecution or intentions had to be made in order to facilitate a mechanism whereby Elias’ asylum-seeker status could be determined.

6.2 Insofar as the applicants contend that, in assessing the above, the Plascon Evans-principle should find application in their favour, the extent of contradictions and inherent improbabilities arising from the documents and versions on which they seek to rely, are such that this is a proper case where, despite opposition, the right to temporary relief has been established. See in this regard; Webster v Mitchell 1948 (1) SA 1186 (W) at 1189-1190. I therefore also find insufficient prospects of success on this ground.

[7] Hearsay evidence

7.1 Elias’ urgent application was moved with reliance of the founding affidavit deposed to by his brother. The brother was the one who took Elias to the Home Affairs Offices to apply for asylum. He therefore has own direct knowledge of those facts. He also appears to have own direct knowledge of the situation in Ethiopia and the persecution of the Sidama ethnic group to which the brothers belong.

7.2 Insofar as other parts of his affidavit contain hearsay evidence regarding Elias’ circumstances, I was prepared to accept that evidence in the exercise of a court’s general discretion in urgent applications and specifically due to the limited contact anyone had with Elias as detainee in Lindela during the Covid 19 lockdown regulations. I find no reasonable prospect of success on appeal on this aspect.

[8] Allegations not supported by evidence, absence of a replying affidavit and probabilities:

These aspects have been dealt with above. I reiterate: no final determinations of fact have been made, the contradictions raised in the answering affidavit were of such a nature that neither an attack thereon in reply nor the absence of a replying affidavit would have taken the determination much further. Pertaining the arguments in respect of the probabilities, these have already been dealt with above. It would be wrong, at this stage, to determine on the basis of the contents of the forms relied on by the applicants, that the probabilities are that Elias was a job-seeker, where there are sufficient indications to the contrary to establish a prima facie right to have his application for asylum considered by a RSDO.

[9] Principal concern

The applicants’ principal concern, as verbalized during oral argument, was that the judgment might set a precedent that applicants for asylum may circumvent the provisions of the Act, in particular the requirements referred to in paragraphs 2.2 and 2.3 above. They are allegedly also concerned that the D-G might now be flooded with asylum seeker applications directed to him directly. Let me make it clear: the order is case-specific and was granted in the circumstances as set out in the judgment in the urgent application and in paragraphs 2.4, 2.5 and 2.6 above. The applicants’ concerns are therefore no cause to grant leave to appeal.

[10] Accordingly, the application should fail. I find no reason why costs should not follow the event.

[11] Order

The application for leave to appeal is refused with costs.

N DAVIS

Judge of the High Court

Gauteng Division, Pretoria

Date of Hearing: 26 August 2020

Judgment delivered: 2 September 2020 (electronically)

APPEARANCES:

For the Applicants:

Adv L J Madiba

Attorney for Applicant:

The State Attorney, Pretoria

For Respondents:

No appearance

Attorney for Respondents: Mflatela Inc., Pretoria