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 refugee office.
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 decision.”
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 they require.”
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.”