South Africa: Western Cape High Court, Cape Town

5.3. The Minister, Deputy Minister and the Director-General, the second respondent, prior to the launching of this application, were unaware of the allegations by the applicants and others that an asylum transit permit under section 23 of the Immigration Act was a prerequisite for an asylum application or the issuance of a permit under section 22 of the Refugees Act. In this regard I refer to the affidavits by the Deputy Minister and the Director-General, filed herewith.

5.4. For these reasons it will be argued that the applicants are not entitled to the relief sought."

[5] The Third Respondent also dealt with a meeting, attended by top-ranking officials of the Respondents, which was held on the 2^nd February 2011, where numerous issues were discussed. These issues, according to him, included matters such as an analysis and trends in asylum seekers management statistics, vacancies at various offices, the turnaround time in processing applications and appeals by asylum seekers and the operation of various refugee centres. To meet these challenges a suggestion, nothing more than a mere suggestion, he contended, was made to regulate the processing of applications by "continuing" with the practice of issuing asylum transit permits under Section 23 of the Immigration Act when asylum seekers reported at a border post. I pause here to point out that the alleged practice was to continue to issue Section 23 permits at the border post and not to insist on such a permit when an application for a refugee permit was made.

[6] Third Respondent went on to allege that there appeared to have been a misunderstanding on the part of some managers of refugee centres that the suggestion to continue with the issuing of ATP's at border posts, emanating from the meeting of the 2^nd February 2011, was in fact a directive to require the production of ATP's, as a prerequisite, from Applicants for refugee permits. This misunderstanding, according to him, led to some of the managers seeking clarification from Mr. McKay. Mr. McKay's clarification is said to be contained in his email dated the 24^th February 2011 (Third Respondent erroneously stated the date to be the 23^rd February 2011) which was directed to officials in the First Respondent's department. Since considerable time was spent in argument referring to this e-mail and its interpretation and, as reference will be made to it hereinafter, I deem it appropriate to quote it verbatim. It reads as follows:

"I would like to draw your attention to the reported concerns indicating that asylum seekers reporting to the Refugee Reception Offices without S23 or valid travel documents are not assisted which has also been confirmed by Musina (e-mail message below). At the meeting held in Cape Town on 02 February 2011 with DM a range of option to deal with high volume of applicants for asylum were discussed and one of them

was a suggestion for us to look at implications if we insist or give first preference to those asylum seekers with S23 or valid travel documents. This was a measure that needed to be looked into to encourage asylum seekers entering the Republic to use the designated Ports of Entry and not a decision to be implemented (as yet).

The DDG has further reiterated that all new arrivals at the Refugee Reception Offices must be attended to.

I would also like to indicate that no directive has been issued to refuse those asylum seekers without S23 or valid travel documents. I do not understand therefore how such a change can be implemented without a directive and agreed upon process.

You are therefore directed not to implement suggestions//proposals - these remain possible options - until informed decisions on them are taken and approved."

[7] The denials by the Respondents of the existence of policy, practice and/or conduct invoked a sharp response from the Applicants who stated that "it went beyond rational belief that they, who came from different countries in Africa, would have somehow conspired to waste their and their legal representatives' time by repeatedly engaging in imaginary complaints against the Respondents. To substantiate this assertion that the conduct complained about was still continuing, despite the Respondents' denials, the Applicants filed additional affidavits, one by Kaajal Ramjathan-Keogh who was employed as a Manager by Lawyers for Human Rights in its Refugee and Migrant Rights Program and the other by one Alaina Evelyn Varvaloucas, who was an intern at a non­governmental organization,   People Against   Suffering, Oppression and Poverty ("Passop"), wherein they claimed to have witnessed applicants for Refugee Permits who had no ATP's still being turned away. The Applicants also invited the Respondents, an invitation which was ignored, to respond to these new allegations.

[8] At the time this matter was heard all the Applicants were already issued with their Asylum Permits, prompting the Respondents to argue that the matter was moot as between the parties. The Applicants, however, persisted with the application for a declaratory order on the grounds that the outcome was of importance, not only to them, but to other refugees who may find themselves in similar circumstances as they were as a result of the conduct of the Respondents. The Applicants accordingly sought a declaratory order to the effect that the Respondents' conduct was inconsistent with the Constitution of the Republic of South Africa and the provisions of Sections 21 and 22 of the Refugees Act and therefore unlawful and illegal. The Applicants did not state in their papers which provisions of the Constitution were violated by the conduct of the Respondents. I am however satisfied that this is not fatal to their course as one can assume, which assumption is also in line with the Rule 16A notice which was filed, that the alleged violation was, inter alia, of their constitutional rights to equality (Section 9); human dignity (Section 10); freedom and security of person (Section 12) and just administrative action (Section 33).

[9] Mr. Atkins, who appeared for the Applicants, argued that, although the Respondents have denied that there was a policy or practice by the Respondents with which the Applicants could take issues, failed to deny that the "conduct" of the First Respondent's officials, which was also a source of the complaint by the Applicants, was not in accordance with the policy of the First Respondent's department. For this reason alone, he argued, the Applicants were entitled to the relief prayed for in the notice of motion. He also argued that the Respondents were economic with the truth when they alleged that there was a misunderstanding regarding the decision taken at the meeting of the 2^nd February 2011, which was to continue with issuing permits in terms of Section 23 of the Immigration Act, because this was clearly transformed into conduct by certain officials. According to him the only inference to be drawn from the e-mail of Mr. McKay, wherein he sought to clarify the decision taken on Section 23 permits, was that this had in fact been formulated into a policy, practice, directive or conduct which was to be implemented once informed decisions on them had been taken; that, notwithstanding the various emails exchanged by various of the First Respondent's officials trying to clarify the matter amongst themselves, on the one hand, and other interested parties, such as representatives of the United Nations Commission for Refugees (UNHCR), on the other, the founding affidavits of the Applicants revealed various incidents after the 15^th  February 2011 where an ATP was still demanded when applying for a Refugee Permit.   He, however, conceded that as from the 28^th February 2011 (four days after the launch of this application), after Respondents' officials had made an undertaking to that effect, applications were accepted without requiring the production of an ATP from an applicant. He also made reference to the affidavit of Ms. Varvaloucas as proof that the conduct complained of was still continuing, the launching of this application and the alleged directives  clarifying the issue having been unsuccessful in regulating the unlawful conduct of the Respondent's officials. This according to him justified the grant of a declaratory order against the Respondents, in the terms prayed for, and that there could be no prejudice to the Respondents since such orders would merely confirm the existing law.

[10] Mr. Moerane on behalf of the Respondents commenced his address by submitting that the affidavits of Keogh and Varvaloucas, filed out of time as they were, should be struck out, alternatively, ignored by the Court. His contention was that the Applicants were supposed to have made out their case in the founding and not in their replying papers. According to him the introduction of these new facts at this late stage deprived the Respondents of the opportunity to respond thereto. Furthermore, he submitted that the affidavit of Varvaloucas contained hearsay evidence, did not refer to any of the Applicants nor a specific person or persons and, overall, did not advance the Applicant's course any further for lack of details. His main argument, however, remained the submission made in the heads of argument that the matter was moot and that the declaratory order sought by the Applicants will serve no purpose as it will be a mere statement of the law as contained in the statute in question.

[11] The papers as well as the arguments presented by Counsels make the following issues pertinent for resolution:

11.1. whether there are any real dispute of facts and if so, whether they are capable of resolution on the papers;

11.2. whether the affidavits of Keogh and Varvaloucas should be struck out or ignored;

11.3. whether the matter is moot as between the parties and, if so;

11.4. whether the Applicants are still entitled to a declaratory order due to the alleged importance of the matter.

[12] I deal first with the question of the dispute of facts. Mr. Moerane argued that there was a real dispute of facts on the papers, which the Applicants should have foreseen. He proposed that this Court should follow the general rule, formulated by Corbett JA in Plascon Evans Paints Ltd  v Van Riebeeck Paints (Pty) Ltd [1984] ZASCA 51; 1984 (3) SA 623 (A), and followed in subsequent judgments and recently by Harms DP in National Director of Public Prosecutions v Zuma [2009] ZASCA 1; 2009 (2) SA 277 (SCA) a case to which Mr. Atkins also referred, that when there is a dispute of facts a final order should only be granted in motion proceedings if the facts as stated by the Respondents, together with the admitted facts in the Applicant's affidavits justify such an order. He also produced a schedule of what, according to the Respondents, were real dispute of facts. I found this schedule a useful guide to the areas which the Court should focus when dealing with this aspect but, by no means conclusive. On the other hand, and in the eyes of the Applicants, the denials by the Respondents, which are said to create real dispute of facts, were nothing but disingenuous. To Mr. Atkins the denials by Third Respondent did not go far enough as the existence of a conduct by the Respondents' officials was not denied, and that there was no real dispute of facts which were incapable of resolution on the papers.

[13] In the Zuma matter supra Harms DP stated the rule in the Plascon Evans matter as follows:

"[26] Motion proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities. It is well established under the Plascon-Evans rule that where in motion proceedings disputes of fact arise on the affidavits, a final order can be granted only if the facts averred in the applicant's (Mr Zuma's) affidavits, which have been admitted by the respondent (the NDPP), together with the facts alleged by the latter, justify such order. It may be different if the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact, is palpably implausible, far-fetched or so clearly untenable that the court is justified in rejecting them merely on the papers ".

[14] The facts which were common cause between the parties were the following: the Applicants who are foreign nationals applied for asylum seekers permits at various times, but mainly during February 2011 at the Maitland Refugee Centre. After initially being turned back for want of ATP they were eventually granted Asylum Permits. This was after the launch of the present application. It is also common cause that in terms of Section 21 of the Refugees Act the only requirement which an Applicant must comply with is that he or she must make the application in person according to the prescribed procedure and that he or she must have his or her fingerprints taken (and, if older than sixteen years, furnish two recent photographs of himself or herself). That on receipt of an application complying with the requirements of Section 21 the Respondent were obliged, in terms of Section 22 of the Refugees Act, to issue Asylum Seekers' Permits to the Applicants therefore; that during the month of February 2011, more particularly as from the 7^th, the Respondents' officials started demanding ATP's as a prerequisite for accepting applications for ASP's; that this practice or conduct had stopped by the time the application was heard, and the Applicants had been issued with their permits. What is in dispute was whether this demand for ATP's was as a result of a policy, practice, directive or conduct by the Respondent's which would be in violation of Section 21 of the Refugees Act and the Constitution as alleged by the Applicants or merely a misunderstanding as contended by the Respondents.

[15] In argument before Court, Mr. Atkins eventually conceded that there was no proof of a policy, directive or practice pointing to the requirement of ATP's as a prerequisite for an application in terms of Section 21 of the Refugees Act, but maintained that there was indeed such a conduct. He found support for his contention in the alleged failure by the Respondents to deny its existence in their opposing papers. According to him paragraphs 4 and 5 of Third Respondents’ opposing affidavit did not go far enough as to deny the existence of this conduct. Nor did all the other affidavits filed by the Respondents. Consequently, he argued that the Respondents' officials had elevated a suggestion emanating from the meeting of the 2^nd February 2011 to conduct and would soon have been translated into policy, once informed decisions had been taken.

[16] I respectfully do not agree with these submissions. It is obvious from the other e-mails that were attached to the Applicants' founding affidavits that the Respondent officials were trying to seek clarification regarding the minutes of the 2^nd February 2011. For example, when Lindile Kgasi was confronted by the contents of Sergio Calle Nosena's e-mail of the 14^th February 2011 she immediately on the 15^th February 2011 sought clarification from her colleagues. Similarly, Mfundo Ngozwana merely expressed his interpretation of the notes from the said meeting which were forwarded to him. Mr. Jackson McKay ultimately set the record straight on the 24^th February 2011 in his e-mail quoted above. The language used is straight forward and there is no ambiguity as to the message conveyed. One is left in no doubt that he was clarifying any misconceptions regarding what was discussed and agreed upon in the meeting of the 2^nd February 2011.

[17] There is therefore in my view no dispute or facts which cannot be resolved on the papers before court. I agree with Mr Moerane that the only finding that can be made on the papers in respect of this issue is that the Respondents never adopted any policy, directive or practice in terms of which Section 23 ATP was a prerequisite for an asylum application or the issuance of a permit under Section 22 of the Refugees Act.>