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REPORTABLE

SOUTH GAUTENG HIGH COURT, JOHANNESBURG

CASE NO: 39302/10

DATE:21/01/2013

In the matter between:

IQBAL, ZAHEER …..........................................................Applicant

And

MINISTER OF HOME AFFAIRS........................................First Respondent

THE DIRECTOR-GENERAL DEPARTMENT

OF HOME AFFAIRS.........................................................Second Respondent

BOSASA (Pty) Ltd

t/a LEADING PROSPECTS TRADING..............................Third Respondent

JUDGMENT

SPILG, J:

THE APPLICATION

1. On 10 October 2012 Mr Iqbal, a Pakistani national, launched an urgent application for hearing on 17 October to secure his release from the Lindela Detention Centre (“Lindela”). The applicant also sought orders to declare his detention unlawful and to direct that the respondents afford him an opportunity to approach the Refugee Reception Office in order to “re-apply for an asylum seekers permit in accordance with section 22 of the Refugees Act (130 of 1998)” pending the finalisation of a claim for asylum both administratively and if necessary through Court review and appeal under the Promotion of Administrative Justice Act 3 of 2000 (“PAJA”).

2. The parties agreed to remove the matter from the roll to enable the filing of further affidavits. After the applicant had delivered his replying affidavit the matter was set down for hearing in the opposed motion court on 13 November 2012.

3. Despite agreement that the case would be heard on that date, on 11 November the applicant was escorted by correctional service officials from Lindela to OR Tambo International airport to be deported on a flight leaving later that day.

4. While at the airport the applicant was able to communicate with his attorney. An urgent application was brought on the same day to stop his deportation. I granted a rule nisi calling on the same respondents who are cited in the present case to show cause why the attempt to deport the applicant should not be immediately stopped pending the outcome of this application and why the attempt to deport him on 11 November while his case was still pending should not be declared unlawful. The rule nisi halting the deportation was effective immediately. The order was served at the airport and the applicant was returned to Lindela. A rule was also issued calling on the respondents and the responsible officials to show cause why they should not be held in constructive contempt. I was concerned that the objective of the attempted deportation might have been to deprive the applicant of his right to a hearing, and if so could amount to an interference with the administration of justice.

5. The matter was returnable later that week. Since the main application was also to be heard during the same week as the return date of both rules nisi, it was removed from the ordinary opposed court roll and placed before me.

THE ISSUES

6. The applicant contends that he is an asylum seeker and therefore is being wrongly detained as an illegal immigrant awaiting deportation. He claims that on arrival in South Africa during 2008 he had applied for asylum and was issued with an asylum seeker permit.

7. There were two grounds upon which he presently claims asylum. The first is that he fled Pakistan because Islamic fundamentalists threatened to kill him as he was opposed to their legal system and that he was also a supporter of the present ruling party in that country. The applicant explained that he is from a rural area where the Jirga legal system is implemented and operates beyond the reach of central government. The second ground is that a tribal assembly had pronounced that the kinsmen of a girl with whom he had a relationship outside Islamic customary law were entitled to kill the applicant on the grounds that his relationship with her was against Purdah custom and had brought them dishonour.

8. Accordingly the applicant’s case is that he was forced to flee Pakistan for local political and religious reasons as well as personal reasons based on a system of justice practiced in the rural area where he had lived. However in the section of his affidavit expressly dealing with his reason for seeking asylum, the applicant confines himself to the second ground only. This is consistent with the sole ground upon which he claimed in his papers that he had applied for asylum; namely, that he arrived in South Africa to avoid a custom sanctioned execution.

9. The applicant claims that he was issued with an asylum seeker permit which he regularly renewed until he obtained an accompanying spouse permit after marrying Ms Bonga, a South African citizen. The applicant avers that he was living with her in the Eastern Cape, where his family had also settled and operated a number of businesses. The applicant remains married to her and contends that they have a child born of their union who bears his surname. A marriage certificate was attached in support. The applicant however concedes that his wife stated under oath to Home Affairs officials that they had entered into a marriage of convenience...

10. On 27 August 2012 and while in Mdantsane attending at Court during a civil dispute against his eldest brother the applicant was detained as an illegal immigrant. The applicant informed the immigration officer that he possessed a valid temporary residence permit and was awaiting receipt of permanent residence status by reason of his South African born child. He was nonetheless detained because of what he describes as “the difference in passport number”. He was taken to King Williams Town and subsequently brought to Lindela. The civil dispute was over rights to a business and the applicant alleges that his eldest brother was instrumental in his detention.

11. If the applicant is an asylum seeker then he enjoys protection from detention and deportation under section 21(4) of the Refugees Act until his status is finally determined. Moreover he may not be detained for a period exceeding thirty days without the sanction of the High Court (section 29 of that Act). In the present case the applicant claims that he applied for asylum and obtained an asylum seeker permit some four years ago which he regularly renewed until he married and then became entitled to and did obtain a temporary residence permit.

12. The applicant alleges that his temporary residence permit has been invalidated as a result of his wife’s allegations regarding their marriage being bogus. He contends that it is also his desire to have the marriage annulled, despite the fact that he claims to have a child with her. The applicant expressly disavows relying on the existence of a currently valid temporary residence permit or spousal permit as the basis for seeking his release from detention or for preventing his deportation. Whether the applicant possesses a valid temporary residence permit is not an issue before me or one which the respondents were required to address. It does not form part of the lis before me.

13. The applicant also seeks an order; “Directing the Respondent to afford the Applicant an opportunity to approach the Refugee Reception Office in order to re-apply as (sic) asylum seeker permit in accordance with Section 22 of the Refugee Act pending the finalisation of his claim ....” .

14. In seeking this part of the relief the applicant again does not intend to engage the respondents on the question of the regularity and validity of his temporary residence permit. This is not surprising as he would have great difficulty in motion proceedings to overcome his wife’s allegations of a bogus marriage. It is also evident that in formulating the relief in this fashion the applicant believes that he is protected against deportation and detention by reason of the decision in Bula and Others v Minister of Home Affairs and Others 2012 (4) SA 560 (SCA), a situation that would not arise if the case was formulated around the existence of a temporary residence permit. Mr Seti who represented the applicant has relied heavily on Bula. It will therefore be necessary to apply that judgment and determine whether its ratio covers the present case.

15. The facts are essentially those emanating from the applicant’s own affidavits or documents admittedly completed by him. Mr Leboko on behalf of the respondents contended that the applicant is neither bona fide in seeking to reapply for asylum nor would he qualify for asylum. The respondents also argue that the applicant waived his right to apply for asylum. Mr Seti contends that the respondents cannot question the applicant’s bona fides or otherwise embark on examining the merits since the issue is concerned with the applicant’s legal right to pursue an application for asylum and the failure to allow him to do so involves an a priori determination of whether the doctrine of legality has been infringed; if correct then Bula applies and this court cannot have regard to any fact other than whether or not the applicant is pursuing an application for asylum. The applicant also disputes that he has waived any right to seek asylum.

16. The SCA held in Bula that where a foreigner demonstrates a desire to apply for asylum then he or she must be afforded an opportunity to make the necessary application, must be released from detention and is entitled to an asylum seeker permit pending the outcome of the application (at paras 74 and 80).

17. If Bula applies, then the court is precluded from enquiring into applicant’s bona fides or any other consideration but must characterise the issue as one subject to the doctrine of legality. See Bula at paras 75, 76 and 80. At para 80 the SCA concluded that;

“ It follows ineluctably that once an intention to apply for asylum is evinced the protective provisions of the Act and the associated regulations come into play and the asylum seeker is entitled as of right to be set free subject to the provisions of the Act”

18. It will be convenient to continue with the narrative which naturally includes the basis on which the applicant contends that he is eligible for, what is termed in the notice of motion, the “re-issue” of an asylum seeker permit. Consideration will then be given to which facts can be properly taken into account on an application of Bula.

APPLICANT’S HISTORY

19. In 2005 and while still residing in Pakistan the applicant was charged with the rape of a young girl from the same village. In his founding papers the applicant claims to have been immediately detained and held in custody for a year until the case was dismissed. The respondents however contend that the applicant was convicted of rape and rely on an affidavit deposed to in August this year by the applicant’s eldest brother. It had been filed in the Mdantsane Magistrates Court during the course of civil proceedings between them over the ownership of a family business. The affidavit had been introduced into the present proceedings by the applicant as an attachment to his founding papers.

20. Earlier, mention was made of the applicant’s claim that the girl’s family threatened to kill him. Although the eldest brother states that after being released from prison the applicant was required to and did pay damages to her family he mentions that one brother of the girl threatened to kill him. On this version the threat to kill was therefore not based on a communal or tribal decision as alleged by the applicant but rather a personal vendetta. However the applicant’s brother also states that this threat prompted the family to bring the applicant to South Africa. The applicant’s two elder brothers had entered the country before him and had set up a family business in the Eastern Cape. In reply the applicant denied that he raped the girl, rather that they had a relationship outside the Islamic code.

21. There are a number of discrepancies in the chronology of events. The applicant claims that he was released a year after his arrest, which would then have been in 2006 although in the replying affidavit he gives the year as 2007. Nonetheless he alleges arriving in South Africa in 2008 despite the communal decision taken at the time of release from custody that the girl’s family had the right to kill him. The brother’s affidavit adds to these inconsistencies by claiming that the family brought the applicant here only in 2009. It is however evident that on the applicant’s own version he continued to live in his home village, where his parents continue to reside, for at least a full year while the alleged communal sanctioned killing hung over his head. In this context, the eldest brother recounts how subsequent to the applicant being brought to South Africa by the family their father arrived from Pakistan to settle a dispute between the brothers and advised the applicant to return with him to Pakistan. The eldest brother is also subject to enquiry by Home Affairs regarding the genuiness of his marriage to a South African. She is the same person with whom the applicant had a relationship, if either are to be believed, which was one of the reasons for the alleged friction between the brothers.

22. Irrespective of why or when the applicant came to the country, he claims that on arrival he presented himself to the authorities, declared that he was an asylum seeker and obtained an asylum seeker permit. He also avers that the permit was renewed regularly until he obtained an accompanying spouse permit.

23. The applicant obtained the spousal permit after participating in what he admits was an arranged marriage. The first objectively ascertainable date in the chronology provided in the founding affidavit is the date of marriage. The attached marriage certificate records it as 13 February 2009. It was not a traditionally arranged marriage as commonly understood since Ms Bonga was of a different faith and ethnic background. The applicant avers that a child was born to them pursuant to their marriage and that he also attempted to secure residence through the birth of the child. However in the letter of demand of 19 September 2012 addressed by his attorneys demanding the applicant’s release it was alleged that when he met Ms Bonga she was pregnant with another man’s child and in “... the spirit of family building the couple agreed that the child for all intents and purposes be treated and taken as our client’s child”.

24. Ms Bonga’s affidavit to Home Affairs is plain enough if it is to be accepted; she claims that she was paid R300 per month to give her name to a fake marriage, that they never lived together , he had never been to her residence and she did not know where he stayed. She claimed that at the time of the bogus marriage she was bearing another man’s child. She reported the applicant to the authorities when he stopped making the agreed monthly payments and requested that the record be “expunged” and that her son’s name reverts to her maiden name. In reply the applicant states that they shared a bed and that the child was born in May 2010, making it inconceivable that she would have been pregnant at the time of their marriage. That however does not inevitably make him the father and his failure to address the earlier cited extract from his attorney’s letter together with not pursuing an entitlement of residence through the alleged son leaves the question of paternity open.

25. . The respondents also rely on a course of conduct by the applicant’s family alleging that one of the applicant’s brothers is being held in Lindela after his marriage was revealed to be fake. The applicant in reply admits that his brother has a fake permit and was awaiting deportation from Lindela. It is unnecessary to consider the weight to be given to this evidence since the applicant’s own version is riddled with glaring improbabilities. The following extracts suffice:

“The marriage was arranged by my brother Muhammed Jahangir ...in line with the customary practice in our country, and it was motivated by my family’s desire for me to forget about the Pakistani woman” (Muhammed is the eldest brother)

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“I was not aware of the details surrounding the marriage even though I was initially uncomfortable with the marriage arrangement, my family convinced me to accept this marriage with the understanding that I would get to love this woman in due course”

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“I later realised that, there was a problem with this marriage, as my wife would constantly demand money from me... I confronted my brother who told me that he used to pay (my wife) R300 per month to stay in as part of the marriage so that I can remain in the country.

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“I got extremely devastated and depressed by this state of affairs; I explained to him that this was not necessary as I was entitled to be here as an asylum seeker and I did not need the temporary resident permit.

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“Disgusted with the way my brother was treating his wife and other women around him, I found myself emotionally attached to ...., who is my brother’s wife. As a result of this closeness a relationship developed and the relationship resulted in a child being born who is now three years old ... now she is pregnant with our second child”

26. It is incredulous that the eldest brother was unaware of the asylum application before arranging the fake marriage or that the applicant would not have indicated that he had been issued with an asylum seeker permit thereby obviating the need to engage in the subterfuge.

27. According to the applicant after marrying and settling in South Africa he had an affair with the wife of his eldest brother. She too is a South African citizen. It is alleged that she had been married to the eldest brother for eleven years and that they have two children. The affair between the applicant and his brother’s wife blossomed and the applicant claims that they had a child three years ago and that in November 2012 she was expecting the applicant’s second child. However according to the applicant his brother only disclosed knowledge of his wife’s infidelity three months earlier and used it to force the applicant to leave South Africa with her and that if he did not do so the brother threatened to kill the applicant “ as part of the Islamic tradition as I had brought a disgrace to the family” . The applicant claimed that he did not take this threat seriously since they were now living in South Africa.

28. Subsequently their father arrived from Pakistan, confronted the applicant who pleaded forgiveness and was told by the father to return to Pakistan. The applicant agreed. The applicant however later demanded R800 000 before he was prepared to leave. After this event the applicant claims that the brothers caused his abduction during the course of which he was stabbed, was threatened with death and had false charges of armed robbery laid against him. In the ensuing period the applicant claims that his brothers managed to take his business by force. As a consequence he brought an application in the Mdantsane Magistrates’ Court. Upon leaving court on 27 August 2012 as the successful party the applicant was arrested.

29. The applicant was given a notice of the decision adversely affecting him and written notification of his right to request a review, all of which he signed. On 11 September 2012 his detention was confirmed by a Magistrate. The detention order was subsequently extended for the purpose of processing his deportation. .At no stage prior to his legal representative’s letter of 19 September did he seek to exercise his rights of review or allege that he had originally sought asylum and was possessed of an asylum seeker permit which had not been renewed consequent on his marriage. Moreover the applicant does not claim any difficulty in understanding or communicating in English.

30. The respondents averred in the answering affidavit that previously the applicant had only relied on his marriage as the basis for being entitled to reside in South Africa. They alleged that he never attended upon a Refugee Reception Office to request asylum. Accordingly the respondents argued that no asylum seekers permit could be re-issued as none was ever obtained. As a corollary the respondents deny that the applicant was fleeing persecution, deny that he was in opposition to any legal system and deny that he had previously indicated that he was seeking asylum in South Africa. It was also contended that the applicant displayed a propensity to abuse both South Africa’s marriage and immigration laws by obtaining a spousal permit pursuant to a bogus marriage and that he persists in abusing the law by seeking asylum for the first time in the lawyers’ letter despite being in the country for three years. Finally it was contended that our law and the various international covenants which we have undertaken to apply never contemplated or intended that a person can attempt to settle in a country by relying on a bogus marriage and once exposed seek asylum for the first time. For reasons set out later I do not believe that the issue is that straight forward.

31. The applicant only provided details of his asylum application in reply. The document is a letter addressed by Home Affairs dated 5 November 2012. It confirms that the applicant had applied for asylum at the Port Elizabeth Refugee Reception Office and that the asylum seeker permit was valid until February 2010 but had not been renewed beyond that date. The applicant repeated the point that he had applied for asylum in 2008 and only married in February 2009. The applicant sought a special order for costs in view of the respondents’ denial that he had ever applied for asylum.

32. The respondents then sought leave to file a supplementary affidavit which contained the applicant’s asylum application. It could not be objected to since it was signed by the applicant and was located only through the asylum seeker permit number revealed by the applicant for the first time in the letter sent by his attorneys to the State Attorney on 6 November 2012 . This was after the answering affidavit had been filed. The contents of this document which include the notes of the Refugee Status Determination Officer (“RSDO”) refute the most material allegations contained in the founding and replying affidavits and which were set out earlier. In particular;

1. In response to a direct question as to why he was seeking asylum the applicant replied in the asylum application form that “I left my country for business”. This is consistent with his answers to three other questions; namely that he never belonged to an organisation, that he wished to return to Pakistan and that in response to the measures he had taken to solve the problem that led to him seeking asylum responded by stating that he had “Nothing to say”;

2. He had arrived in South Africa after spending some 12 days in Dubai, a day in Kenya, two in Malawi and four in Mozambique but never sought asylum in those countries because he wanted to come to South Africa;

3. He only applied for asylum in March 2009 which was a month after his purported marriage;

4. Moreover the date on the application form for asylum and when he obtained an asylum seeker permit for the first time refutes his allegation that he entered the country in January 2008 and had promptly applied for asylum at that time.

33. Most significantly the RSDO had already interviewed the applicant on 18 March 2009 and recorded that the applicant advised that he had come to South Africa for business opportunities. There is a note of the same date entered by the RSDO which records that he had rejected the application as “manifestly unfounded” It is also apparent that the applicant was informed of the rejection of his application for asylum and was aware that the Standing Committee on Refugee Affairs had been referred the application because of the RSDO’s decision. It is also evident from the other documentation contained in the answering affidavit that the applicant had abandoned pursuing his application for asylum.

34. The applicant elected not to file a further affidavit after delivery of the respondents’ supplementary affidavit with the asylum application and the record of section 22 permit extensions attached. Mr Seti did not contend that the applicant wished to belatedly exercise his rights of review or appeal, by applying for condonation at this stage (as occurred in Fikre v The Minister of Home Affairs and Others 2012 (4) SA 348 (GSJ)), or otherwise claim that he still desires to exhaust his rights pursuant to his application for asylum.

35. By way of a general observation, the issues are effectively limited by the applicant expressly disavowing reliance on the spousal permit which he claims has become invalid. Moreover he relies exclusively on the existence of a pending application for asylum in order to secure his release under section 21(4) (a) of the Refugees Act having claimed that it has not yet been decided upon. While this allegation is not borne out by the endorsement on the application the applicant has not sought to challenge the decision whether by way of a late review or appeal. Section 21(4)(a) reads;

“Notwithstanding any law to the contrary, no proceedings may be instituted or continued against any person in respect of his or her unlawful entry into or presence within the Republic if-

1. such person has applied for asylum in terms of subsection (1), until a decision has been made on the application and, where applicable, such person has had an opportunity to exhaust his or her rights of review or appeal in terms of Chapter 4; ....“

36. The applicant argues that as an asylum seeker he furthermore enjoys the protection afforded by section 29 of the Refugees Act. The section would restrict his detention to a period of not longer than 30 days unless reviewed by a judge. The applicant claims an entitlement to be released because the 30 days have expired and there has been no judicial review of his detention. Once again the argument is dependent on whether the applicant is an asylum seeker; the outcome of which it is contended was answered in his favour by Bula. It is therefore necessary to consider the application of Bula to the present facts.

CONTEXTUALISING THE BULA AND ERUSMO CASES

37. The application of Bula arises in two respects. Firstly in relation to whether the applicant can claim similar protection where he has already applied for asylum but did not pursue it and where the RSDO has rejected the application as manifestly unfounded under section 24(3) (b) of the Refugees Act. If he however overcomes these hurdles and he falls within the category of persons contemplated by Bula then the question arises whether the reach of Bula precludes a court from considering whether the applicant is bona fide in seeking to renew an application for asylum; an issue linked with identifying the prima facie right that is allegedly infringed.

38. Bula is concerned fundamentally with a foreigner’s entitlement not to be deprived of the right to apply for asylum. The issue was squarely identified by the SCA as being confined to an application of the principles of legality (at para 2) and that the appellants had correctly identified the issue as relating solely to whether or not Home Affairs’ officials had accorded them the right to apply for asylum, at least once they had made their intention known in their lawyers’ letter shortly before launching their application for release from detention and a declaratory order against deportation (at paras 21and 72 and compare para 79). Accordingly the case was not determined on the basis of an express refusal on the part of Home Affairs’ officials after being approached to entertain an application for asylum but rather that the appellants should have been accorded an opportunity to apply and at least, from the moment they expressed a desire to apply for asylum, were entitled to obtain an asylum seeker permit under section 22 of the Refugees Act. As stated earlier the effect of obtaining an asylum seeker permit would be to protect them from detention and they may not be deported until their application is determined.

39. The doctrine of legality requires that organs of State and their officials must comply with the law, including the Constitution and they can only exercise the powers and functions authorised by law. The SCA referred to the passage in Fedsure Life Assurance Ltd and Others v Greater Johannesburg Transitional Metropolitan Council and Others 1999 (1) SA 374 (CC) at para 58 where the principle was identified as a fundamental concept of the constitutional order . In Affordable Medicines Trust v Minister of Health of RSA 2005 6 BCLR 529 (CC) at para 49 Chaskalson P referring to Fedsure at para 58 said that the doctrine “... entails that both the Legislature and the executive ‘are constrained by the principle that they may exercise no power and perform no function beyond that conferred upon them by law’ ”. See also section 6(2) of PAJA.

40. In applying the doctrine of legality the SCA held that Home Affairs’ officials were obliged to comply with the requirements of section 21(2) of the Refugees Act and Regulation 2(2) of the Regulations promulgated under section 38 of that Act. In particular;

1. The Regulation provides that an illegal immigrant who is found within our borders must be issued with a temporary residence permit valid for fourteen days provided the individual “indicates an intention to apply for asylum”. The Regulation reads ;

“2(2) Any person who entered the Republic and is encountered in violation of the Aliens Control Act, who has not submitted an application pursuant to subregulation 2(1), but indicates an intention to apply for asylum shall be issued with an appropriate permit valid for 14 days within which they must approach a Refugee Reception Office to complete an asylum application.”

2. Section 21(2) of the Refugees Act which is an enabling provision requires the Refugee Reception Officer (“RRO”), being the person to whom an application for asylum must be made in person, to accept the application, to assist in its completion if so requested and to submit it to an RSDO who is the person with the power to decide on the merits of the application. In other words the RRO is purely a functionary with no apparent discretion to accept or reject an application. The applicable sub-sections are (a), (b) and( d) which provide;

“21(2) The Refugee Reception Officer concerned—

(a) must accept the application form from the applicant;

(b) must see to it that the application form is properly completed, and, where necessary, must assist the applicant in this regard;

(c) ……

(d) must submit any application received by him or her, together with any information relating to the applicant which he or she may have obtained, to a Refugee Status Determination Officer, to deal with it in terms of section 24.

41. The SCA held that the demand made in the letter written on behalf of the appellants over a month after their arrest satisfied the requirement of section 21(2) as it amounted to an intention to apply for asylum (at paras 78 and 80). Accordingly, to the extent that intention was identified as a requirement in the Regulation it was an intention to make the application for asylum not the intention to seek asylum. The physical act suffices while the intention or purpose which motivated it is not relevant.

42. The doctrine of legality applies to state action. It is evident that an RRO cannot decide on the bona fides of the applicant as this is outside the scope of the officer’s powers and authority. The respondents in Bula sought to rely on a passage in Abdi v Minister of Home Affairs 2011 (3) SA 37 (SCA) at para 22 which mentions an asylum applicant’s state of mind. The passage reads;

“The words of the Act mirror those of the UN Convention and the OAU Convention of 1969. They patently prohibit the prevention of access to the Republic of any person who has been forced to flee the country of her or his birth because of any of the circumstances identified in s 2 of the Act. Refugees entitled to be recognised as such may more often than not arrive at a port of entry without the necessary documentation and be placed in an inadmissible facility. Such persons have a right to apply for refugee status, and it is unlawful to refuse them entry if they are bona fide in seeking refuge. The Department’s officials have a duty to ensure that intending applicants for refugee status are given every reasonable opportunity to file an application with the relevant Refugee Reception Office – unless the intending applicant is excluded in terms of s 4 of the Act.” (emphasis added)

43. The section 4 exclusions referred to in that passage did not apply to the appellants and the SCA held that the last cited sentence demonstrated that the Abdi decision did not determine that bona fides was a consideration. Unfortunately there is no indication as to what was intended by the highlighted words in the Abdi extract. It is however clear that the RRO does not have the power to consider bona fides (only the RSDO does under section 24(3) - para 74) and in the context of the Bula decision this is made clear from the concluding portion of para 77 which reads;

“It does not follow that in the passage referred to this court intended to convey what is presently submitted on behalf of the Minister. On the contrary, the concluding sentence in para 22 of Abdi makes it clear that the Department’s officials are obliged to ensure that once there is an indication of an intention to apply for asylum they assist the person concerned to lodge such an application at a Refugee Reception Office.”

44. The SCA effectively held that if the RRO could not determine the merits of an asylum application, much less could there be a “prior interrogation by the court” (at para 77). This is a reference to the hearing of vive voce evidence during the course of the motion proceedings where there were enquiries regarding the route and time taken by the appellants to reach South Africa from Ethiopia.

45. . Accordingly in terms of Bula;

1. since the genuiness of the application is not a matter which the RRO is authorised to consider , a High Court is similarly precluded from doing so because that is not a section 4 consideration;

2. the only official expressly empowered to make a decision on an application is the RSDO. This is by reason of section 24(3)(b)

46. It appears to follow that the ratio in Bula precludes a court from deciding on the bona fides of an application until such time as it has been considered by the RSDO and consequently, at least until then, an applicant cannot be detained under section 21(4) (a) of the Refugees Act, (unless the words “where applicable” are to be stretched). It also would appear that the decision would be the same if the applicant’s bona fides in bringing the application was not the issue but whether he or she had been truthful about the attempts made to obtain refugee status after arriving in South Africa. In Bula the appellants were detained before they had an opportunity to exercise their right to apply. See also Ersumo v The Minister of Home Affairs and Others 2012 (4) SA 581 (SCA) at para 13.

47. In Ersumo the SCA held that a delay in applying for asylum was itself not a bar by reason of the wording of section 24(3) (which does not refer to delay as a ground for rejecting an application) and regulation 2(2). It also held that there would be difficulty in imposing a limitation on “undue delay” as this would require a subjective judgment on the part of the RRO. At para 16 the following was stated;

“Regulation 2(2) is consistent with this in that it foreshadows that, when the foreigner is encountered by the immigration officer, they will be in South Africa in violation of the Immigration Act. In other words they will be an illegal foreigner under that Act. No distinction is drawn between one type of illegal presence and another. In other words it makes no difference whether the individual entered the country and never sought an asylum transit permit, or whether they obtained such a permit and allowed it to lapse by not reporting to a Refugees Reception Office. Nor is there any reference to the duration of the illegal presence, or to any mitigating factors, such as poverty, ignorance of these legal requirements, inability to understand any of South Africa’s official languages and the like. There is also no reference to aggravating factors, for example, that their illegal entry was deliberate and that they have deliberately sought to avoid the attentions of the authorities. Regulation 2(2) applies to any foreigner encountered in South Africa, whose presence in this country is illegal. It says, as this Court held in Bula, that any such person who then indicates an intention to apply for asylum must be issued with an asylum transit permit, valid for 14 days, and permitted to apply for asylum.”

48. The full passage has been cited in order to contextualise the highlighted portion which is of particular relevance in the present case. The highlighted portion confirms that Regulation 2(2) draws no distinction between the obligations and duties of an RRO in a case covered by Bula (ie; where an illegal foreigner never sought an asylum transit permit or illegally entered the country) and a foreigner who did apply and obtained a temporary asylum seeker permit but allowed it to lapse, provided his application for asylum has not yet been determined under the Refugees Act.

49. The SCA in Ersumo qualified the reach of its two judgments with the following clarification in para 19:

“Before leaving the topic of regulation 2(2), however, it is important that I record an important qualification to what I have said about the effect of that regulation. Everything I have said is on the footing that we are dealing with a first encounter by an immigration officer with an illegal foreigner who has not made an application for asylum. Nothing in this judgment addresses the situation where an asylum transit permit has been issued under regulation 2(2), where no application for asylum is made and that permit lapses. It would be odd were the regulation to mean that, if an immigration officer thereafter encountered the same foreigner and the foreigner again indicated a desire to apply for asylum, an obligation to issue a fresh asylum transit permit would arise. However, it is unnecessary to express any final view on this, as those are not the facts before us.”(emphasis added)

50. It therefore appears that notwithstanding the highlighted contents of the extract from para 16 of Ersumo the operative pronouncement of the SCA is that neither Bula nor Ersumo purports to decide whether a foreigner who does not apply for asylum but has been issued with an asylum transit permit will be protected by the doctrine of legality in cases where regulation 2(2) applies.

51. There are with respect possibly two aspects of application that might arise. First; the ratio in Bula holds that motive or intention is irrelevant whereas the question of a failure to pursue an application once an asylum transit permit has been obtained would logically consist of an enquiry into the motive for initially abandoning the application and then for reapplying. An illustration is the present applicant’s allegation that he was able to obtain a temporary residence permit through marriage to a citizen and therefore at face value had no reason to pursue the application for asylum. Fikre is illustrative of a case where the individual’s failure to pursue an appeal against the rejection of the asylum application might still be genuine and only an enquiry into his bona fides in pursuing the appeal can determine the outcome. This will be expanded upon later.

52. Such an enquiry is however not envisaged by Bula in the weaker case where a foreigner does not apply for asylum at all until apprehended a year or even many years after illegally entering the country by reason of the application of the doctrine of legality. However Ersumo postulates that it might be competent to do so in the case of a person who enters through a border crossing, obtains an asylum transit permit but then does not proceed to an RRO in order to pursue his application. The distinction may raise possible constitutional issues of arbitrariness and inequality of treatment where there may not be a discernable distinction between the two situations. In Mateku v Minister of Home Affairs [2012] ZAGPJHC 241 my brother Makume J held at para 14 that Bula was distinguishable on the basis that the SCA had found that “at all times the applicants had demonstrated a desire to apply for asylum. Mr Mateku has failed to demonstrate why he did not apply for asylum and refugee status on his arrival instead what this court knows is that he then became involved in criminal activities. He clearly had no intention to seek asylum in South Africa”. Leaving aside the basis for the distinction, what appeared to weigh with the court were two factors that it considered were sufficient to deviate from Bula. The first was that the applicant had ample opportunity to apply for asylum (a factor held to be inappropriate in Ersumo). Secondly the applicant had been found guilty of housebreaking with intent to steal and of theft for which he was sentenced in November 2009 for a period of five years imprisonment and was released at the end of April 2012 under a special sentence remission (at paras 4 and 5).

53. The highlighted statement in Ersumo (para 16 of the judgment reproduced above) confirms that Regulation 2(2) draws no distinction between a person who enters the country illegally and never sought an asylum transit permit and one who obtained such a permit and did not proceed to an RRO. This is in conformity with Arse where the SCA confirmed that section 23(2) of the Immigration Act 13 of 2002 does not override the provisions of the Refugees Act. Section 23(2) of the Immigration Act provides that if a foreigner fails to apply for asylum to an RRO before the asylum transit permit expires then: “Despite anything contained in any other law .... the holder of the permit shall become an illegal foreigner and be dealt with in accordance with this Act”. See Arse v Minister of Home Affairs and Others 2010 (7) BCLR 640 (SCA).

54. In Arse the applicant did not disappear into the general population. He claimed to have approached a Refugee Reception Office in Port Elizabeth but the queues were too long which resulted in his asylum transit permit expiring before he attended an RRO to apply for asylum. This may be the distinguishing feature touched on in Ersumo which may require the application of a test of bona fides to qualify the case of a foreigner who receives an asylum transit permit on entering the country but does not even attempt to proceed to an RRO and apply for asylum. If so then there would appear to be a further need to reconcile the Immigration Act and the Refugees Act See Arse at para 19.

55. It is unclear whether Ersumo intended to go further than just limiting the application of Bula to an Arse type situation where the foreigner did present himself to an immigration officer when entering the country and obtained an asylum transit permit. The underlined portion of the extract from para 19 in Ersumo (see above) may suggest that the SCA used the example of the holder of an asylum transit permit failing to apply for asylum after entering South Africa as an illustration of the type of case still left open by the ratio in Bula. This might be inferred from the preceding sentence which appears to be the more general statement, namely that Bula is to be understood as confined to the situation of “ ... a first encounter by an immigration officer with an illegal foreigner who has not made an application for asylum”. Ersumo may therefore also have left open the question of whether the SCA will or will not extend Bula to a situation where an individual has already obtained an asylum seeker permit which by its nature presupposes that his application for asylum has been completed and is awaiting a decision under section 24(3) of the Refugees Act.

THE ENABLING LEGISLATION AND ASYLUM SEEKERS

56. Our courts have ensured that the international treaties and conventions enumerated in section 6 of the Refugees Act are given their full weight when interpreting and implementing the legislation (See the Preamble to the Refugees Act and Arse at para 19). The question of whether the international instruments preclude the detention of a person who has illegally entered a country after he has expressed an intention to apply for asylum until the outcome of his asylum application appears to be answered in the negative by the European Court of Human Rights.

57. In Conka v Belgium [2002] ECHR 14; (2002) 34 E.H.R.R. 54 at 1298 the Strasbourg Court accepted that the national laws of Belgium may entitle detention “in view of the risk that they might seek to elude deportation” (at paras 42 and 51) as they fell within the provisions of Article 5(1)(f) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the “Convention”). The Article reads;

5.1 Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

1. …..

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. (emphasis added)

58. The point of departure in Conka was that the court found that the Belgian authorities had rendered the entitlement to appeal illusory and had acted arbitrarily thereby depriving the applicants of a realistic opportunity to use the remedy of appeal and it was this factor that resulted in a violation of Articles 5(1) (at paras 38, 45 and 46). It is of particular interest that the test the court adopted regarding the accessibility of a remedy being made available to a person seeking asylum or wishing to pursue an appeal or review of a decision rejecting the application for asylum was couched as follows at para 46:

“ The Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective. As regards the accessibility of a remedy invoked under Article 35(1)of the Convention, this implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy” (emphasis added)

59. In R (on the application of Saadi and others) v Secretary of State for the Home Department [2002] UKHL 41; [2002] 4 AllER 785 the House of Lords considered whether British legislation concerning the confinement in reception centres pending the outcome of a foreigner’s application for asylum offended Article 5(1) of the European Convention (which was adopted into national law). The government relied on the Article 5(f) exemption (cited earlier) and its domestic legislation that allowed for detention to prevent an unauthorised entry. The court held that the detention at reception centres of asylum seekers whose claims could be speedily resolved fell within the exemption and that the government was entitled to detain the person until the application had been considered and the entry into the country ‘authorised” without having to demonstrate that the applicant was seeking to enter by evading immigration control. Accordingly detention for the purpose of enquiring whether an individual was entitled to asylum was permitted provided the person was held for a short period and in reasonable physical conditions even though it involved compulsory detention. In reaching its conclusion the House of Lords adopted the tests of proportionality and reasonableness having regard to the large number of asylum seekers entering the country (see generally paras 29, 35 to 37, 45 and 47).

60. These aspects are raised because of the applicant’s contention that despite having applied for asylum and not pursuing it, he remains entitled to re-apply for an asylum seeker permit and that the issue remains one of applying the doctrine of legality to enable him to pursue his asylum application till final determination on the basis that he has expressed a desire to do so, thereby entitling him to rely on the ratio in Bula which, it is urged, will also preclude an enquiry either into whether he is bona fide in making the application or whether there is an arguable case that he should be entitled to re-apply for an asylum seeker permit on the basis of not yet exhausting his remedies under the Refugees Act.

61. In Fikre the applicant had been refused asylum early during 2009, did not attempt to renew his permit nor did he appeal the decision but melted back into the general population until he was again apprehended without papers. He was subsequently released in order to return to Ethiopia but then brought a new application for asylum under an assumed identity which resulted in a new asylum seeker permit being issued. The fact that he claimed not to have any identification documents or passport from his country of origin afforded him the opportunity to adopt names. When immigration officials caught up with him in September 2010 and detained him again, he abandoned reliance on the permit bearing his false details and at the beginning of March 2011 just prior to launching his application for release from detention he sought to resurrect the appeal against the rejection some three years earlier of his asylum seeker application.

62. Although the consequence of a case falling outside the two SCA judgments was left open it is apparent that in a case such as Fikre the only possibility is that the limited characterisation of the issue as properly involving only the doctrine of legality would yield to an enquiry as to whether the intention to apply for asylum was genuine or whether it was raised for an ulterior purpose, an ulterior purpose being neither contemplated nor intended by the legislature, to borrow the phrase from the principles applied to interpreting whether a provision in legislation (original or delegated) covered the action complained of. Although not stated in the Fikre judgment a concern was that an armchair approach would be inappropriate since the misery of individuals and those with families fleeing the ravages of war , persecution or genocide and the fear of being forced to return can readily explain the steps they may take to stay remain illegally in a foreign country despite having a genuine and bona fide ground for seeking and obtaining asylum. It appears that Regulation 2(2) envisaged such a situation. Conka also alluded to the legitimate fear on the part vulnerable refugees to the steps that may be taken by immigration and other authorities.

PRIMA FACIE RIGHT

63. It is necessary to identify the right contended for. The applicant contends that he has exercised he intends reapplying for an asylum seeker permit and therefore should fall within Regulation 2(2) and that the doctrine of legality has been infringed by the continued attempt by the Respondents to detain and deport him despite at the least his lawyers letter indicating his intention to reapply.

64. I am satisfied for the reason given earlier that on an application of Ersumo to Bula and Arse that the applicant did avail himself of his rights to apply for asylum and that his application was rejected after which he did not pursue them further. In my view the extract cited earlier from Conke is of application; the applicant was afforded every realistic opportunity to exercise the remedies available to him. As a fact he did not. The applicant exercised his rights under the enabling legislation, being section 21(4)(a) of the Refugees Act by applying for asylum and has not suggested that he was deprived of “..an opportunity to exhaust his ...rights of review or appeal in terms of Chapter 4”

65. I am also satisfied that as this case does not fall within the Bula type situation as explained in Ersumo at para 19, because the court is not dealing with “a first encounter by an immigration officer with an illegal foreigner who has not made application for asylum” it is entitled to have regard to the facts. For the reasons that appear above the applicant has not made out an arguable case for the interim relief sought and has not demonstrated a clear right for the final declaratory orders sought. He also has not sought a referral to evidence. In short no case is made out since his application for asylum does not purport to place him within the category of persons entitled to seek asylum and that is only the decision taken by the RSDO pursuant to that application which can be the subject of review or appeal. The applicant therefore reverts to the status of an illegal immigrant subject to the provisions of the Immigration Act (see Fikre at paras 76 to 78) unless he resurrects his claim to temporary residence either through his purported marriage or through his alleged son. Suffice it that on the issues before the court the applicant has not set out facts entitling him to fall under the provisions of the Refugees Act.

66. It is therefore unnecessary to consider any of the other requirements for either the interim relief or other orders sought.

ORDER

67. In the result the application falls to be dismissed with costs.

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HEARING DATES: 15 and 24 November 2012 and 3 December 2012

JUDGMENT AND ORDER: 21 January 2013

FOR APPLICANT: Adv SETI

O.A. MOLOI ATTORNEYS INC

FOR RESPONDENTS: Adv LEBOKO

STATE ATTORNEY

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