Ncube v Minister of Home Affairs and Others (26477/2017) [2018] ZAGPPHC 402 (16 May 2018)

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.

[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.

[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;

[60.6] 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