ConCourt rules closing PE refugee office unlawful
Source: Sarah Evans – Mail & Guardian, 07/08/2015
The refugee reception office in Port Elizabeth will have to be
reopened, following a court judgment this week.
On Wednesday, the Constitutional court dismissed an application by the
department of home affairs to appeal a Supreme Court of Appeal (SCA)
judgment that declared its decision to close the Port Elizabeth
refugee office unlawful.
This means that the SCA judgment stands.
Asylum seekers and people wishing to be granted refugee status have to
apply for in person at a refugee office, such as the one in PE. While
their application is being processed, they are given an asylum seeker
permit. Without this permit, they are considered to be illegal
foreigners, and they can be arrested and deported at any time.
From there on, any other matters related to the person`s legal status
in the country requires that person to visit the refugee office in
person. At the beginning of 2011, there were six such offices:
Johannesburg, Pretoria, Cape Town, Durban, Musina and Port Elizabeth.
Three of these – Johannesburg, Cape Town and Port Elizabeth were
closed. The decision by home affairs not to reopen the office in
Johannesburg was previously declared by the high court to be
"procedurally unfair and invalid".
In 2012, the Somali Association of South Africa and the Project for
Conflict Resolution and Development took the department to court. This
time, the decision was to close the PE office. Ostensibly, the office
was closed to due an expired lease agreement. The high court set
aside the decision to close the PE refugee office to new asylum
applications without opening an alternative office in that municipality.
The decision to close the office was unlawful, the court said, because
by law, the director general of home affairs must consult with
Parliament`s standing committee on refugee affairs, and this was not
done. Leave to appeal that decision was dismissed. Despite this
order, the refugee office has not been reopened, Ponnan explained in
his judgment. In June 2012, the Cape Town refugee office was closed.
That decision was also declared unlawful in court.
Around the same time, Lawyers for Human Rights, representing the
Somali Association and the Project for Conflict Resolution, wrote a
series of letters to the State Attorneys in an effort to make home
affairs comply with the judgment that said it had to reopen the PE
In September, the director general of home affairs, Mkusseli Apleni,
responded saying that home affairs had now consulted with the standing
committee, and had taken a new decision to close the office. "The
error has now been rectified …" he said. Lawyers for Human Rights
returned to court.
The high court in Grahamstown again declared the department`s decision
unlawful and ordered it to reopen the centre, but this time, the
department was granted leave to appeal. Apleni said this decision was
taken because the refugee centres had to be opened at strategic ports
of entry into the country, and PE was not one of these centres.
Apleni said that the new decision to close the PE office was taken on
May 30 2012, months before he told LHR that this was so. He further
told the SCA, in the appeal proceedings, that once the standing
committee had been consulted, the department had consulted with the
public and affected parties at the end of June, 2012. "But that
meeting, even if it could pass as a `consultation` in the true sense
of that word, hardly assists the relevant authorities because it
occurred after 30 May 2012," Ponnan said.
While a stakeholders meeting was held in June 2011, it emerged in
court, Ponnan said this meeting was "a charade and positively
misleading as to the intentions of the relevant authorities".
Those in attendance were led to believe that the office would not be
closed. But the department announced, in October 2011, that it would
be closed. Ponnan pointed out that it was "well established", that in
order for a decision to be considered legal, it must be rational. As
previously established by the SCA in a prior judgment by Robert
Nugent, "Rationality entails that the decision is founded upon reason
– in contradistinction to one that is arbitrary – which is different
to whether it was reasonably made."
Home affairs told the court that it would close the PE office, and
open a new office at the Lebombo border post, on the border between
Mozambique and South Africa, in Mpumalanga. But the court was
presented with new evidence: in a reply to a Parliamentary question in
April 2014, the minister of home affairs at the time, Naledi Pandor,
said that the department did not intend to open a new office at the
Lebombo border. Apleni said that Pandor had understood the question
to mean whether the centre would beopen during that financial year.
Ponnon`s response to this was scathing: "That such a response is
adduced by a senior official - under oath no less - beggars belief.
How the question asked of the Minister in Parliament could have been
construed as Mr Apleni does, is logically incomprehensible."
In court, Apleni said the department now hoped the Lebombo office
would be open in February 2016.
Ponnan said: "Implicit in that must be an acceptance that Apleni
believed that theestablishment of the Lebombo RRO, which was
inextricably linked to the closure of the PE RRO, would satisfy our
obligations to asylum seekers as required by the Act and Constitution.
That being so, it can hardly be imagined that thedecision to close the
PE RRO would have been taken by Mr Apleni when he did had he known
then that Lebombo would only be operational at the earliest in
February 2016. It must follow that the DG`s decision to close the PE
RRO had been made in ignorance of the true facts material to that
Ponnan further noted that the department`s assumption, that asylum
seekers could use one of the other refugee offices that remained open,
would mean that these vulnerable people would regularly have to travel
great distances over many months or years. "Travelling and
accommodation costs are likely to be substantial – for many, resources
that they simply do not have. Throw into the mix the elderly or infirm
and parents of small children (who would probably have to make
alternative child-care arrangements), for whom undertaking an extended
journey to a refugee officesituated far away from the support
structures of their communities and families may prove well-nigh
impossible. Repeated visits to a distant refugee officealso have the
potential to jeopardise the employment and job security of anasylum
seeker. And given the admitted backlogs and failing systems at the
remaining refugee office, even those asylum seekers who manage to
attend are at risk of not obtaining the assistance and protection that
Ponnan said it was obvious that the department did nothing for six
months after the first court order that compelled it to reopen the PE
office. And it began closing case files at that office despite the order.
"It is a most dangerous thing for a litigant, particularly a State
department and senior officials in its employ, to willfully ignore an
order of court. After all there is an unqualified obligation on every
person against, or in respect of, whom an order is made by a court of
competent jurisdiction to obey it unless and until that order
isdischarged. It cannot be left to the litigants to themselves judge
whether or not an order of court should be obeyed. There is a
constitutional requirement for complying with court orders and
judgments of the courts cannot be any clearer on that score. No
democracy can survive if court orders can be shunned and trampled on
as happened here," Ponnan said.
Ponnan ordered that the office be reopened. David Cote, head of LHR`s
strategic litigation programme, said: "The result of the
Constitutional Court`s decision to dismiss the appeal is that asylum
seekers and refugees in and around Port Elizabeth will no longer have
to travel long distances for refugee services. This will go a long way
in ensuring protection under international law."