THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 831/2013
Reportable
In the matter between:

MINISTER OF HOME AFFAIRS
FIRST APPELLANT

DIRECTOR-GENERAL: DEPARTMENT OF
HOME AFFAIRS
SECOND APPELLANT

CHIEF DIRECTOR ASYLUM SEEKER MANAGEMENT
THIRD APPELLANT

STANDING COMMITTEE FOR REFUGEE AFFAIRS
FOURTH APPELLANT

MINISTER OF PUBLIC WORKS
FIFTH APPELLANT

and

SOMALI ASSOCIATION OF SOUTH AFRICA
EASTERN CAPE (SASA EC)
FIRST RESPONDENT

PROJECT FOR CONFLICT RESOLUTION AND
DEVELOPMENT
SECOND RESPONDENT

Neutral citation:
Minister of Home Affairs & others v Somali Association of South Africa &
another (831/13) [2015] ZASCA 35 (25 March 2015)

Bench:
Ponnan, Shongwe and Majiedt JJA and Schoeman and Meyer AJJA

Heard:
16 February 2015

Delivered:
25 March 2015

Summary:
Refugees Act 130 of 1998 – closure of refugee reception office – decision
challenged for want of consultation with interested parties and rationality – remedy –
authorities ignoring previous court orders.

____________________________________________________________________

ORDER
____________________________________________________________________

On appeal from: Eastern Cape High Court, Port Elizabeth (Eksteen J, sitting as court
of first instance)

Save for setting aside paragraphs (2) and (3) of the order of the court below, and
substituting them with the orders that follow, the appeal is dismissed with costs, to be
paid by the first to third appellants jointly and severally, and to include the costs of two
counsel. Paragraphs (2) and (3) are substituted with the following:
‗(2.1)  The first to third respondents are directed to restore by 1 July 2015 the refugee
reception services to the Port Elizabeth Refugee Reception Centre such that new
applicants for asylum will be able to make applications in terms of s 21 of the
Refugees Act 130 of 1998 and, if they qualify, be issued with permits in terms of s 22
of the said Act.
(2.2)  The second respondent, the Director General of the Department of Home
Affairs, shall report in writing to the applicants not later than 15 April 2015 and,
thereafter, on or before the 15th day of each succeeding month as to what steps have
been taken and what progress has been made to ensure compliance with the
aforesaid order.
(3)
The parties are granted leave to apply upon the same papers, supplemented
insofar as they consider that to be necessary, for further relief.‘

____________________________________________________________________

JUDGMENT
__________________________________________________________________

Ponnan JA (Shongwe, Majiedt JJA and Schoeman and Meyer AJJA concurring):

[1] In his famous ‗I am an African‘ speech then Deputy President Thabo Mbeki paid
tribute to his ancestors along with migrants from Asia, Europe and the rest of Africa
and thanked them for teaching him that ‗we could both be at home and be foreign‘ and
that ‗freedom was the necessary condition for . . . human existence‘. 1 And yet, as the
South African Human Rights Commission observed:2
‗If a society‘s respect for the basic humanity of its people can best be measured by its
treatment of the most vulnerable in its midst, then the treatment of suspected illegal
immigrants . . . offers a disturbing testament to the great distance South Africa must
still travel to build a national culture of human rights.‘

[2] Many migrants, especially refugees and asylum seekers (who represent a small
but significant portion of those who, for whatever reason, are attracted to South Africa)
experience grave difficulty in legalising their stay in this country. The condition of being
a refugee connotes a ‗special vulnerability as refugees by definition are persons in
flight from the threat of serious human rights abuse‘.3 Hannah Arendt states that the
‗fundamental deprivation of human rights is manifested first and above all in the
deprivation of a place in the world (a political space) which makes opinions significant
and actions effective‘.4 That especial vulnerability is recognised in our legislation
governing the status of refugees – the Refugees Act 130 of 1998 (the Act). Its
passage represented a significant break with a past characterised by measures

1 T Mbeki ‗I am an African‘ address to the Constitutional Assembly on the occasion of the adoption of
the new Constitution of the Republic of South Africa on 8 May 1996 at Cape Town.
2 South African Human Rights Commission Report into the arrest and detention of suspected
undocumented migrants (1999) at 5.
3 Union of Refugee Women & others v Director: Private Security Industry Regulatory Authority & others
2007 (4) SA 395 (CC) para 29. See also J Hathaway (ed) Reconceiving International Refugee Law
(1997) at 8; and L B Landau, K Ramjathan-Keogh and G Singh Xenophobia in South Africa and
problems related to it, Forced Migration Working Paper Series 13 (2004) at 34, available at
http://migration.wits.ac.za, accessed on 12 May 2015.
4 H Arendt The origins of totalitarianism at 296.

designed to control the entry and presence of what were described as ‗aliens‘ in this
country and proclaims instead a more progressive commitment to refugee protection
in accordance with international standards. According to s 3 of the Act, which draws
on international instruments such as the 1951 United Nations Convention Relating to
the Status of Refugees and the 1969 Organisation of African Unity Convention
Governing Specific Aspects of Refugee Problems in Africa, a person qualifies as a
refugee if that person –
‗(a)
owing to a well-founded fear of being persecuted by reason of his or her race, tribe,
religion, nationality, political opinion or membership of a particular social group, is outside the
country of his or her nationality and is unable or unwilling to avail himself or herself of the
protection of that country, or, not having a nationality and being outside the country of his or
her former habitual residence is unable or, owing to such fear, unwilling to return to it; or
(b)
owing to external aggression, occupation, foreign domination or events seriously
disturbing or disrupting public order in either a part or the whole of his or her country of origin
or nationality, is compelled to leave his or her place of habitual residence in order to seek
refuge elsewhere; or
(c)
is a dependant of a person contemplated in paragraph (a) or (b).‘
I may add that in addition to the various formal legal obligations, South Africa has also
committed itself to uphold the Declaration adopted at the World Conference against
Racism, Racial Discrimination, Xenophobia and Related Intolerance held in Durban in
2001. The Conference recognised the urgent need to translate the objectives of the
Durban Declaration into a practical and workable plan.5

[3] But not every person who flees his or her home in the circumstances referred to
in s 3 of the Act will obtain asylum in this country. It is thus important to understand
how asylum is sought and comes to be conferred in terms of our law. According to s
21 of the Act, every person who wishes to obtain asylum must apply in person to a
Refugee Reception Officer (the Officer) at any Refugee Reception Office (RRO). To

5 The following points of the Declaration are especially relevant to vulnerable migrants and the
eradication of xenophobia: principle 53: ‗We underline the urgency of addressing the root causes of
displacement and of finding durable solutions for refugees and displaced persons, in particular
voluntary return in safety and dignity to the countries and local integration, when and where appropriate
and feasible‘; and, principle 54: ‗We affirm our commitment to respect and implement humanitarian
obligations relating to the protection of refugees, asylum-seekers, returnees and internally displaced
persons, and note in this regard the importance of international solidarity, burden sharing and
international cooperation to share responsibility for the protection of refugees, reaffirming that the 1951
Convention relating to the Status of Refugees and its 1967 Protocol remain the foundation of the
international refugee regime and recognizing the importance of their full application by States parties‘.

that end, the Officer must ensure that the application form is properly completed and
where necessary assist the applicant in that regard. The Officer may conduct such
enquiry as is deemed necessary in order to verify the information furnished by the
applicant and, thereafter submit the application together with such information as may
have been obtained to a Refugee Status Determination Officer (RSDO). Pending the
outcome of that application the Officer must, in terms of s 22 of the Act, issue such
applicant with an asylum seeker permit allowing him or her to sojourn in the Republic
temporarily. Until the issuance of a s 22 permit (also described as an asylum seeker
permit), such person is considered an illegal foreigner and subject to apprehension,
detention and deportation in terms of the Immigration Act 13 of 2002. Importantly, in
terms of the Immigration Act, no person may employ (s 38), or save for humanitarian
assistance and aid, abet, assist, enable or in any manner help an illegal foreigner (s
42). An asylum seeker permit is thus essential to enable an asylum seeker to live,
work and function in South Africa prior to the determination of his or her status.

[4] After having made an application for asylum, an asylum seeker will usually be
obliged to report in person from time to time to an RRO, inter alia, to: (a) review his or
her asylum seeker permit; (b) be interviewed by the RSDO (s 24(1) and (2)); (c) be
informed of the outcome of the application for refugee status (s 24(4)); (d) if
necessary, lodge an appeal against a rejection of the application to the Refugee
Appeal Board (RAB) (s 26(1)); (e) attend a hearing of the RAB (s 26(3)); and (f) collect
the decision of the RAB. Once a person satisfies the relevant authorities that he or she
qualifies for refugee status, asylum will be granted and he or she is deemed a refugee
for the purposes of the Act. Even then, such person‘s refugee status must be renewed
every two years. For that to happen he or she would be obliged to call in person on an
RRO. The asylum application process is invariably a protracted one. Timely access to
an RRO is thus critical not just for asylum seekers to legalise their stay in this country,
but also for the effective protection of their rights. In terms of s 27 of the Act, a refugee
has a range of rights, including full legal protection, the right to remain in the Republic
and the entitlement to: (a) apply for an immigration permit, an identity document and a
travel document; and (b) the same basic health services and primary education which

inhabitants of the Republic receive from time to time. In practice, however, there are
usually significant obstacles in the path of asylum seekers and refugees.6

[5] As at the beginning of 2011 there were six RROs in the country, namely
Johannesburg, Pretoria, Cape Town, Durban, Musina and Port Elizabeth. Since then
three of those six – Johannesburg, Port Elizabeth and Cape Town – have been closed
either completely or to new applications by the Department of Home Affairs (DHA).
Litigation challenging the lawfulness of each of those decisions followed. The
Johannesburg High Court (per Legodi J) declared the decision not to re-establish an
RRO in Johannesburg following upon the closure of the one located at Crown Mines
to be ‗procedurally unfair and invalid‘ and remitted the matter to the Director-General
of the DHA (the DG) for ‗his or her reconsideration on the suitability or otherwise of
establishing such an office in Johannesburg‘.

[6] On 16 February 2012 and at the instance of the Somali Association of South
Africa Eastern Cape and the Project for Conflict Resolution and Development (the
respondents) the Grahamstown High Court (per Pickering J) reviewed and set aside
the decision to close the Port Elizabeth RRO (PE RRO) to new applications ‗without
having in place an alternative RRO within the Nelson Mandela Bay Municipality‘.
Pickering J directed, inter alia, the Minister of Home Affairs (the Minister), the DG and
the Chief Director: Asylum Seeker Management (the Chief Director) (collectively
referred as the relevant authorities) to open and maintain a fully functional RRO ‗to
provide services to asylum seekers and refugees including new applicants for asylum
in the Nelson Mandela Bay Municipality‘. The learned judge found the decision to be
unlawful by reason of the failure on the part of the DG to consult with the Standing

6 A report by the Wits Forced Migration Studies Programme with Lawyers for Human Rights states:
‗Our research into practices at the Johannesburg RRO confirms longstanding accusations of
administrative incapacity, discrimination, exploitation, and violence. Long queues, unprotected from the
weather, [are but the first indignity awaiting asylum seekers] . . . extended stays in unsanitary
conditions, exploitation from private security guards, and extortion by networks involving translators,
guards, and Home Affairs officials. Those who gain access to the RRO—often upon payment—face
administrative delays, staff that are overworked or under-motivated, and further exploitation from
translators and officials. For these reasons, acquiring status as either an asylum seeker or refugee
typically requires stamina, determination, and cash. Those unable to meet these requirements—
including the elderly, infirm, poor, and other vulnerable groups—are effectively denied the protections to
which they are legally entitled.‘ See L B Landau Migration trend, management, & governance
challenges: Testimony prepared for the ad hoc Committee on Democracy & Good Political Governance
(2005) at 9-10. See also Kiliko & others v Minister of Home Affairs & others 2006 (4) SA 114 (C).

Committee for Refugee Affairs (SCRA) established in terms of Section 9 of the Act.
Pickering J accordingly declined to decide the other grounds of review sought to be
advanced by the respondents. On 14 May 2012 the learned judge refused leave to the
relevant authorities to appeal and directed, in terms of rule 49(11) of the Uniform
Rules, that pending the outcome of any further appeal, his order that a fully functional
RRO be opened and maintained, not be suspended. On 28 August 2012 the petition
by the relevant authorities seeking leave to appeal to this court was dismissed. That
notwithstanding and despite the order of Pickering J, the PE RRO has remained
closed to new applicants.

[7] On 29 June 2012 the Cape Town RRO (the CT RRO) was closed to new
applicants for asylum. On 25 July 2012 the Cape High Court (per Davis J) granted an
interim order, inter alia, directing the relevant authorities to ensure that a RRO remains
open and fully functional within the Cape Town Metropolitan Municipality at which new
applicants for asylum can make applications and be issued with section 22 permits.
And like Pickering J, he too ordered that, notwithstanding any further application for
leave to appeal and appeal, and pending the outcome of any such appeal, his order
shall not be suspended. In due course the review application succeeded before
Rogers J who declared the decision to close the CT RRO to new applicants for asylum
unlawful, and directed the relevant authorities to ensure that an RRO is open and fully
functional within the Cape Town Metropolitan Municipality. This Court dismissed an
appeal by the relevant authorities against the order reviewing and setting aside the
decision to close the CT RRO. It declined, however, to endorse the conclusion by the
high court compelling them to reopen the CT RRO (Minister of Home Affairs and
others v Scalabrini Centre and others 2013 (6) SA 421 (SCA) paras 73-79).

[8] According to s 8 of the Act, the DG may establish as many RROs in the
Republic as he or she, after consultation with SCRA, regards as necessary for the
purposes of the Act. It thus followed, as was accepted by the relevant authorities
before Pickering J, that the DG would likewise have been under an obligation to
consult with SCRA when deciding to close those offices. Indeed, in seeking leave to
appeal from Pickering J, the relevant authorities did not contest the finding that the
decision to close the PE RRO was unlawful. Rather, it was only the order directing that
a fully functional RRO be opened and maintained that was sought to be assailed.

[9] During June 2012 and following upon the judgment of Pickering J, the
respondents‘ attorneys, Lawyers for Human Rights (LHR), addressed two letters to the
State Attorney regarding the evident failure on the part of the relevant authorities to
comply with the order of the learned judge. The response those letters elicited was ‗we
still await instructions from client in response to your concerns‘. On 31 August 2012
LHR once again wrote to various officials in the DHA, as also the State Attorney:
‗1.
We are attaching the Order of Court handed down by the Supreme Court of Appeal on
Tuesday 28 August 2012 dismissing leave to appeal the judgment of Pickering, J. of the
Eastern Cape High Court regarding the closure of the Port Elizabeth Refugee Reception
Office. A copy of the SCA order of court is attached hereto as Annexure ―A‖. . . .
2.
We trust that the Department of Home Affairs will now take immediate steps to comply
with the order of Pickering J. Kindly inform us of the steps which the Department has taken
and will take to implement the order of the High Court.‘
When that letter failed to elicit a response LHR once again wrote on 6 September
2012:
‗2.
The Department has not responded with what steps it intends to take to comply with
the judgment of Pickering J of the Eastern Cape High Court regarding the Port Elizabeth
Refugee Reception Office (PE RRO).
3.
We require a response from you by no later than the end of business on Friday 7
September 2012 failing which we will have no option but to assume that you have no intention
of complying with the order of court and are therefore in contempt of that order.
4.
Our clients reserve the right to approach the High Court for appropriate relief, including
an appropriate order as to the costs of that application.‘
That letter as well failed to elicit a response. Instead, on 16 September 2012 the
Provincial Manager: Eastern Cape DHA, Mr Mabulu, notified ‗various stakeholders‘ by
e-mail:
‗As you are aware, the failure on our part, as the Department, to consult with the Standing
Committee for Refugees (―SCRA‖), in respect of the compelling circumstances to close the PE
RRO, inadvertently, invited an adverse Court ruling against our irrevocable decision.
For this reason, the Director-General, Mr. Mkhuseli Apleni, then, undertook to meet with
SCRA, on 30 May 2012, at which the various challenges, relating to the nuisance caused to
the surrounding Business community, and leading to the Eviction Orders, and the refusal of
the Landlord to renew the Lease Agreement were discussed. All of this was discussed, it must
be noted, within the context of the many Court challenges against further operations of the PE
RRO in the area, under question.

SCRA, having satisfied oneself with the casual factors of the compelling closure, then,
consented. For this reason, kindly, be informed that the PE RRO is closed, and, all, the
arrangements that were made to assist Asylum Seekers, and recognised Refugees shall
remain in place, until the finalization of, all, outstanding adjudications.‘

[10] LHR sought, in the light of that email, to press the relevant authorities to comply
with the order of Pickering J and accordingly wrote on 17 September 2012:
‗2.
It appears clear from the e-mail that the Department is intent on persisting with its
refusal to reopen the Port Elizabeth Refugee Reception Office to new applicants, despite this
being required by the order of the Eastern Cape High Court. It therefore appears that the
Minister, the Director-General, and the Chief Director: Asylum Management are in contempt of
court.‘
Finally, on 21 September 2012 the DG, Mr Mkuseli Apleni, responded:
‗I am responding on behalf of all the departmental addressees.
As you know, the judgment of the Court in this matter was based on the fact that the
provisions of section 8(1) of the Refugees Act 130 of 1998 were not complied with when the
decision to close the Port Elizabeth Refugee Reception Office (―PERRO‖) was taken.
That error has now been rectified. I have, inter alia, consulted with the Standing Committee for
Refugee Affairs in terms of the said section 8(1) and taken a new decision to close the
PERRO.
In the circumstances, the court order of 16 February 2012 has been overtaken by events. As
you know, outstanding applications for asylum are still being attended to.
The Minister, the Department, officials of the Department and I are therefore not in contempt
of court.
Trusting that the above explanation deals with your enquiry and concerns.‘

[11] The disclosure that a new decision had been taken, prompted the respondents,
to once again approach the Eastern Cape High Court. Their application succeeded
before Eksteen J, who, on 20 June 2013, issued the following order:
‗1.
The second respondent‘s decision, taken on 30 May 2012, to close the Port Elizabeth
Refugee Reception Office to new applicants for asylum is declared unlawful and is set aside.
2.
The first to third respondents are directed to ensure that by 1 October 2013 a Refugee
Reception Office is open and fully functional within the Nelson Mandela Metropolitan
Municipality at which new applicants for asylum can make applications for asylum in terms of
section 21 of the Refugees Act 130 of 1998 and be issued with permits in terms of section 22
of the said Act.

3.
During the week commencing Monday 24 June 2013, and again during the week
commencing Monday 22 July 2013, the second respondent or his duly appointed
representative shall furnish a written report to the applicants‘ attorneys summarising the steps
taken by the Department of Home Affairs up to the date of the report to give effect to para (2)
of this order; giving the second respondent‘s assessment as to whether he expects there to be
compliance with the said para (2) by 1 October 2013; and, if the second respondent‘s
assessment is that there will not be compliance by that date, giving the second respondent‘s
best estimate of the date by which there will be compliance.‘
Eksteen J granted leave to the relevant authorities to appeal to this Court against his
judgment and order. SCRA and the Minister of Public Works were also cited as the
fourth and fifth respondents respectively but no relief was sought against them. They
accordingly took no part in the proceedings either in the court below or in this Court.

[12] According to the DG, Mr Mkhuseli Apleni:
‗4.3
In the Department‘s view, the most operationally strategic and convenient places to
locate RROs are points of entry utilised by those entering the country. Port Elizabeth is not
such a point of entry. The records held at the PERRO clearly indicate that those applying for
asylum in Port Elizabeth hail from China, Pakistan, Bangladesh, Somalia, Ethiopia, and so
forth. None of these applicants use Port Elizabeth as a port of entry.
. . .
97.6
This strategy underlies the decision to establish RROs as close as possible to ports of
entry, whilst still giving applicants for asylum unrestricted rights of travel and residence in any
part of the country. We came to the conclusion that establishing RROs nearer ports of entry
would go a long way to achieving these objectives.‘
Mr Apleni added:
‗96.3
I admit that the exercise of the power afforded in section 8(1) of the Refugees Act is
constrained by the principle of legality. I have submitted in various parts of this affidavit that
consequent on the court order of 16 February 2012, I remedied the failure to act in
accordance with the terms of section 8(1) of the Refugees Act. I have now taken a new,
rational and lawful decision as required in law, to close the PERRO.‘
Significantly, although there are several similar references in the rather detailed
affidavit deposed to by him, nowhere does he state precisely when the new decision
was taken.

[13] In a confirmatory affidavit, Mr Karl Sloth-Nielsen, the chairperson of SCRA,
stated:
‗18.
Having discussed these matters and related matters as is apparent from the Minutes of
that meeting, we agreed with the Director-General‘s reasoning. We advised that we would not
take issue with the decision he sought to take in that regard. It was only once our discussions
were concluded that the Director-General took a fresh decision to close the PE RRO. I left that
meeting knowing what the new decision was . . .‘
And yet, somewhat surprisingly given the earlier correspondence from LHR urging
compliance with the order of Pickering J, the first intimation that a new decision had in
fact been taken was when Mr Apleni wrote to LHR some four months later on 21
September 2012. In an affidavit filed with this court in support of the application for
leave to appeal against the judgment of Pickering J, Mr Apleni stated:
‗For completeness‘ sake and in the interests of openness, I wish to disclose that I have since
consulted with the Standing Committee, who have approved of the closure of, inter alia, the
Port Elizabeth Refugee Reception Office.‘
Mr Apleni deposed to that affidavit on 4 June 2012. If indeed, as Mr Sloth-Nielsen
suggests, a new decision had been taken at the meeting with SCRA on 30 May 2012,
Mr Apleni‘s pointed failure to disclose that to this Court was the very antithesis of his
professed assertions of ‗completeness‘ and ‗openness‘. For, that a new decision had
been taken would, in my view, have rendered academic the application for leave to
appeal to this Court. That could hardly have been lost on Mr Apleni. In my view he was
obliged to disclose to this Court that he had already taken a new decision and
disingenuously failed to do so. We were however urged by counsel for the relevant
authorities to approach the matter on the basis that the new decision, the subject of
this appeal, was taken on 30 May 2012.

[14] The respondents accepted that in the light of this Court‘s judgment in Scalabrini
we would be bound to find that the DG‘s decision constitutes executive action. And it
also came to be accepted on behalf of the relevant authorities that the assessment of
the number and location of RROs for the purposes of processing applications by
asylum seekers and refugees is constrained by the principle of legality. The broad
thrust of the respondents‘ case is that the decision of the DG fell short of constitutional
legality for want of: (a) consultation with interested parties; and, (b) rationality. Each of
those contentions will be considered in turn.

[15] If Mr Apleni‘s new decision was indeed taken on 30 May 2012, as urged upon
us, then there was (as counsel for the relevant authorities accepted) no consultation
with interested parties prior to that decision being taken. The closest that one comes
to any reference to a consultation is the following in Mr Apleni‘s affidavit:
‗99.4
Similarly, once the consultation with the SCRA had taken place, the Department
thought it appropriate to convene a meeting with interested parties and explain how
applications for asylum would be dealt with in the future. This meeting was held on 26 July
2012 as a courtesy to those members of the public who wished to receive an update on
matters affecting the PERRO. . .‘
But that meeting, even if it could pass as a ‗consultation‘7 in the true sense of that
word, hardly assists the relevant authorities because it occurred after 30 May 2012.
There was, however, a further string to counsel‘s bow. It was this: fresh consultations
were unnecessary inasmuch as Mr Apleni had already consulted with interested
parties prior to him taking his first decision to close the PE RRO. On the assumption
that such a proposition is a tenable one (the correctness of which appears to me to be
doubtful but which I need not here decide) I do not believe that it is supported by the
facts.  Mr Michael Collin Bendle, a director of the second respondent, the Project for
Conflict Resolution and Development, stated:
‘72.
In June 2011, a meeting of stakeholders was called by employees of the second
respondent working at the PE RRO, which meeting I attended. We were informed that the
lease of the PE RRO premises was set to expire on 30 November 2011 and that the
Department was in the process of finding alternative office space. The attendees at the
meeting were advised of three potential sites to which the PE RRO may be moved. We were
invited to visit the sites and see if they were suitable for a refugee reception office.
73.
No mention was made at the time that there would be a permanent closure of refugee
services in Port Elizabeth. In addition, no mention was made of the Department‘s intention to
cease services for new applicants for asylum at the new office.
74.
We were invited to a meeting on 17 October 2011 but the meeting was cancelled by a
Mr. Baxter who works at the refugee reception office. We were not told what the meeting
would be about, but only that it would be rescheduled for another day.
75.
There was no further communication from the respondents until 20 October 2011 when
a notice was posted on the gate outside the PE RRO which stated that services for new

7 In R v Secretary of State for Social Services, Ex Parte Association of Metropolitan Authorities 1986 1
WLR (QB) at 4F-H it was put thus: ‗But in any context the essence of consultation is the communication
of a genuine invitation to give advice and a genuine receipt of that advice. . . .‘

applicants would cease the following day on 21 October 2011. A copy of this notice is
attached hereto as Annexure MB26.‘
The response from Mr Apleni was:
‗100.1 When the meeting referred to in the paragraphs under reply was called, no decision
had at that stage been taken to close the PERRO in respect of the lodgement of new
applications for asylum.
100.2 The steps that were taken were at the initiative of the officials at the PERRO.
100.3 It is correct that what was communicated to the officials of the PERRO was the
impression that I was labouring under, that is that the continuance of services to applicants for
asylum whose applications had already been lodged did not constitute a dis-establishment of
the PERRO. This Court took a different view of the decision and I have accepted its
interpretation that the effect of the decision was to discontinue a material portion of the
services rendered by the PERRO, thereby effectively dis-establishing the office.
100.4 The meeting that was cancelled by Mr. Baxter was reconvened on 20 October 2011.
101.
The allegations made in the paragraph under reply are admitted.

[16] Mr Bendle further stated:
‗77.
In an attempt to resolve the immediate situation, a meeting was arranged on 20
October 2011 with Ms Sonto Lusu, the acting provincial manager for the Department of Home
Affairs in the Eastern Cape with a number of stakeholders, including the applicants. At this
meeting, Ms Lusu informed us for the first time that the PE RRO was scheduled to close
permanently on 30 November 2011, and that no new asylum applications would be processed
with effect from 21 October 2011.
78.
We were also provided with a copy of the directive from the second respondent, the
Director-General of Home Affairs Mr Mkuseli Apleni, dated 7 October 2011, confirming the
permanent closure of the PE RRO. A copy of this letter is attached hereto as Annexure MB27.
79.
In the meeting we raised our concerns about the closure of the office, particularly
under such notice, and sought an extension of the closure dates in order to engage with the
Department about the decision.
80.
Ms Lusu was adamant that the dates would stand but nevertheless undertook to
discuss it with the Director-General whom she indicated she was scheduled to meet in Cape
Town the following day. She also gave an undertaking to revert to stakeholders by 12h00 the
following day.
81.
On 21 October 2011, attorneys at the Nelson Mandela Metropolitan University
(―NMMU‖) Refugee Rights Centre received telephonic confirmation from Ms Lusu that the
decision as contained in the letter from the Director-General was ―cast in stone‖ and that the

Department would not change the decision. Later that day, a letter of demand was sent by our
attorneys, Lawyers for Human Rights (―LHR‖), to the respondents in which our concerns were
clearly described and the unlawful nature of the closure was put to the respondents. A copy of
that letter is attached as Annexure MB28.
82.
LHR received two requests for indulgences from the head of legal services, Mr S
Mogotsi, to allow the first and second respondents time to respond to the letter of demand,
which requests were granted. However, no such response was ever received.
83.
We continued to try to engage with the Department but to no avail. On 9 November
2011, when it became clear that the first and second respondents had no intention of
responding to the letter of demand, a further letter was sent to them by LHR confirming our
intentions to approach a court to adjudicate this matter. This letter is attached hereto as
Annexure MB29.
84.
On 16 November 2011, the NMMU Refugee Rights Centre attended a stakeholders
meeting in Grahamstown where Mr Lucas, the Centre Manager, informed the attendees that
the PE RRO was closing permanently.‘
Mr Apleni‘s response was:
‗103.
I admit the allegations made in the paragraphs under reply.‘
He added:
‗97.14 With regard to the first decision to close the PERRO, I ensured that the Department
consulted with stakeholders at the meeting of 20 October 2011. After considering the inputs
made, I weighed those against the factors that I have explained underpinned the rationale for
the decision to close. I elected to go ahead with the closure of the PERRO.
That appears to be the high water mark of the relevant authorities‘ case.  But by that
stage the decision to close had already been taken. That is confirmed by the directive
issued by Mr Apleni on 7 October 2011 headed ‗Closure of the Port Elizabeth Refugee
Reception Office‘, which reads:
‗You are hereby officially notified that the Port Elizabeth Refugee Reception Office will be
permanently closed as from 30 November 2011.‘
It must follow that here as well to the extent that Mr Apleni can point at all to any
consultation, such consultation occurred after the decision had already been taken.

[17] In the event, counsel for the relevant authorities was driven to contend that the
DG (Mr Apleni) was not obliged to consult with interested parties. In that regard, not
entirely consistent with what had elsewhere been stated by him, Mr Apleni asserted:
‗99.1
I deny that there was a legal obligation to consult with affected parties or their known
representatives prior to taking the decision to close the PERRO to new applicants for asylum.

. . .
102.1 I have stated earlier in this affidavit that there was no obligation arising from section
8(1) of the Refugees Act for me to consult interested parties about the decision that I had
taken.
102.2 I also pointed out that in any event those who had submitted applications for asylum
before the decision was taken had no cause to complain as the decision taken did not affect
those applications.
102.3 . . . I could hardly be expected to consult with unknown future new applicants regarding
their access to the PERRO.‘
I accept, as Nugent JA did (Scalabrini para 72), that a duty to consult will arise only in
circumstances where it would be irrational to take a decision without such
consultation, because of the special knowledge of the person or organisation to be
consulted. The relevant authorities were aware that the respondents had close links to
refugee communities and experience and expertise in dealing, not just with asylum
seekers in Port Elizabeth, but also with the challenges that confronted them. That was
acknowledged, implicitly at least, when they were invited to a stakeholders meeting
during June 2011. But that meeting was a charade and positively misleading as to the
intentions of the relevant authorities. What is worse, is that after having lulled the
respondents into a false sense of security as to the continued operation of the PE
RRO, it was suddenly sprung on them on 20 October 2011 that a decision had already
been taken by Mr Apleni on 9 October 2011 to close the PE RRO to new applications
with effect from 21 October 2011. That was, to borrow from Nugent JA (Scalabrini
para 70), ‗inconsistent with the responsiveness, participation and transparency that
must govern public administration‘. In Scalabrini (para 71), Nugent JA endorsed what
Rogers J had to say, namely:
‗In assessing the rationality of the process followed by the DG, it is important to remind oneself
that consultation with the NGOs would not have been a new or alien process for the DG. He
recognised them as stakeholders and apparently did in general consult with them on important
developments. At the meeting of 7 May 2012 the [DHA] said that there would be further
consultation with stakeholders if efforts to remain at the Maitland premises failed. This renders
all the more inexplicable the DG‘s failure to do so.‘
It must follow that Mr Apleni‘s failure to consult with the respondents when deciding
whether to close the PE RRO was not founded on reason and was arbitrary and thus
unlawful.

[18] That conclusion ought, ordinarily at any rate, to dispose of the matter. But it
may nonetheless be desirable, particularly when regard is had to the remedy sought
by the respondents in this matter (to which I turn in due course), for a view to be
expressed on their other challenge (S v Jordaan 2002 (6) SA 642 (CC) para 21). It is
well established that an incident of legality is rational decision-making. It is a
requirement of the rule of law that the exercise of public power should not be arbitrary.
It follows that decisions must be rationally related to the purpose for which the power
was given. (See Pharmaceutical Manufacturers Association of SA: In re Ex parte
President of the Republic of South Africa 2002 (2) SA 674 (CC) para 85.) But, as
Nugent JA pointed out (Scalabrini para 65): ‗rationality can be a slippery path that
might easily take one inadvertently into assessing whether the decision was one the
court considers to be reasonable. . . . [R]ationality entails that the decision is founded
upon reason – in contradistinction to one that is arbitrary – which is different to
whether it was reasonably made.‘

[19] According to Mr Apleni the DHA had decided to embark upon a new strategic
direction namely to ‗close some relatively marginal (in comparative terms) urban
based RROs‘ such as the PE RRO and to establish ‗a new refugee reception office at
the Lebombo border post to replace the closed PE RRO‘, which would be ‗used by
refugees from all over South Africa that would apply for asylum at [that] Port of Entry‘.
The evidence thus reveals that: the PE RRO was considered to be closed and defunct
by the DHA; the DHA proposed to have the new Lebombo RRO operational from 1
April 2012;8  funds for the relocation to Lebombo would be obtained from the savings
from the lease agreement for the PE office; the budget for the Lebombo RRO would
be in line with the PE budget; the staff required for the Lebombo RRO ‗would be
aligned to the non-operational Port Elizabeth RRO‘; and, the ‗capital budget for the

8 In an urgent internal memo dated 16 January 2012 the Chief Director: Asylum Seeker Management is
recorded as having tasked the Chief Director: Property and Infrastructure Management with performing
an urgent assessment of accommodation for the envisaged Lebombo RRO. The minutes of an Exco
Meeting of the DHA held on 10 February 2012 record that the new ‗[RRO] in the Mpumalanga Province
should be operational as from 1 April 2012. On 24 May 2012, the Chief Director: Property and Facility
Management of the DHA, Mr Vukani Nxasana, emailed the Chief Architect of the Department of Public
Works working on the Lebomba project, Ms Sushma Patel. The email reads:
‗the main concern [of the Director-General of the DHA] is that Home Affairs has to demonstrate to the
courts (PE and Cape Town) that reception centres will be opened soon. To that end, it would be
appreciated if you could provide a high-level analysis of the two options . . . We will then have to
present these to the DG and move forward.‘

project would be secured from the R110 million special allocation for the 2012/2013
financial year‘.

[20] By way of two separate applications, the respondents sought leave to place
new evidence before this Court. In neither instance were the facts disputed or the
applications opposed by the relevant authorities. I am satisfied that they are material
and sufficiently weighty and that in respect of each, the threshold set for admission at
this stage of the proceedings has been met (Rail Commuters Action Group & others v
Transnet Ltd t/a Metrorail & others 2005 (2) SA 359 (CC) paras 40-43).

[21] In an affidavit in support of the first application, Mr Bendle stated:
‗3.
. . . The respondents seek to place before this Court evidence of the recent disclosure
by the first appellant, the Minister of Home Affairs (―the Minister‖) in Parliament that there will
not be a new Refugee Reception Office (―RRO‖) established at the border-post in Lebombo,
Mpumalanga.
4.
The disclosure was made by the Minister in April 2014, in reply to an internal
Parliamentary question. The question and reply were published online by the Parliamentary
Monitoring Group, and came to the respondents‘ attention on 25 April 2014. . . It indicates that
the following questions and reply were exchanged between Mr De Freitas of the Democratic
Alliance and the Minister:
―Mr M S DE Freitas (DA) to ask the Minister of Home Affairs:
Whether her department will be establishing a refugee reception office at Lebombo in
Mpumalanga; if so, (a) what is the cost for the (i) establishment and (ii) running of this office,
(b) in each case, (i) what consultations have taken place and (ii) with whom, (c) what progress
has been made to date and (d) when will the specified office (i) open and (ii) be functional?
. . .
Reply:
No.‖
9.
The evidence of the fact that an RRO will not be established at Lebombo is
fundamental to the merits of the review that is the subject of this appeal. The review concerns
the decision of the second appellant, the Director-General of the Department of Home Affairs
(―the Director-General‖), to close the PE Refugee Reception Office (―PE RRO‖). One of the
principal justifications given by the Director-General for his decision to close the PE RRO was
the establishment of a replacement RRO in Lebombo.

11.
In light of the new evidence, the respondents contend that the Director-General‘s
decision to close the PE RRO is reviewable and falls to be set aside for material mistake of
fact and irrationality under the doctrine of legality.‘
Mr Apleni‘s response was:
‗11.
I have been advised and verily believe, that Respondents‘ interpretation and use of the
evidence sought to be introduced, is misconceived. As explained below, the parliamentary
questions and answers thereto, must be understood within the context of parliamentary
custom, protocol and language. Applying parliamentary custom, protocol and language and
bearing in mind the time the question was posed, it was understood by the Minister, the
Department and me, as meaning whether or not it was anticipated that the RRO in Lebombo
would be opened during the forthcoming financial year.
12.
Since it was not anticipated that the Lebombo RRO would be opened within the
forthcoming financial year, the Minister correctly answered the question in the negative.
13.
As set out below, this does not, however, mean that the Minister and the Department
are not proceeding with their plans to establish an RRO at Lebombo at all. On the contrary,
those plans are still progressing. Indeed, an appropriate site has now been identified and a
tender for the provision of temporary structures at Lebombo, has already been awarded.
14.
Consequently, the Respondents‘ contention that a new RRO will not be established in
Lebombo soon or at all, is not correct.
. . .
16.
The opening of an RRO in Lebombo was consequently, a relevant consideration when
I decided not to re-open the PE RRO and it was therefore not an error on my part to take this
factor into consideration.
. . .
17.
The parliamentary questions were posed to the Minister in the National Assembly on
14 March 2014, for a written reply.
18.
Before the Minister gave her reply, the questions were circulated amongst the relevant
functionaries in the Department for their consideration, including myself.
19.
I considered the questions and provided my input in relation to a draft response. I
approved the response. . .
20.
In determining the appropriate response, the Minister and relevant functionaries,
including myself, took into account the fact that the questions were a parliamentary questions.
In this regard, the relevant functionaries, having regard to parliamentary protocol and custom
and the specific manner in which questions are asked and answered in the National
Assembly, interpreted the primary question to be whether an RRO would be opening in
Lebombo during the forthcoming financial year.

21.
Consistent with the answer given by the Minister, the Lebombo RRO will not as a
matter of fact be opening in the forthcoming financial year, since the Department has not been
allocated the necessary funding from Treasury to construct the RRO.
22.
The Department‘s targets are required to comply with the ―SMART‖ principles
advanced by the Auditor General: they must be Specific, Measurable, Attainable, Realistic and
Time-bound. At the time the parliamentary question was asked, the establishment of the
Lebombo RRO did not satisfy these requirements, particularly, in relation to the anticipated
time-frame for the construction of the RRO.
23.
Taking these factors into account, the Department and Minister determined that the
Minister was not in a position to answer the primary question in the affirmative.
24.
Indeed, a positive answer to the primary question would have implied that the
Department would finalise matters such as the costing and timelines for the establishment of
the Lebombo RRO, within the forthcoming financial year. Since these matters were not,
however, finalised, the Minister was not therefore, in a position to provide these subsidiary
answers.
25.
The Minister consequently correctly answered in the negative. I appreciate that the
negative answer is capable of being interpreted that the Department does not intend to open
an RRO in Lebombo and that this option was off the table so to speak. This was, however, not
the intention of the response. As set out above, the Minister intended to convey the position
that the Lebombo RRO would not be opening during the forthcoming financial year.

[22] 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. Syntactically, the primary
question seeks to ascertain whether the DHA will be establishing an RRO at
Lebombo. It is an enquiry directed at a future state of affairs. It, as well, in the
subsidiary questions, seeks clarity as to consultations and progress that has already
taken place namely, a past state of affairs. It is thus difficult to appreciate how the
question could have been construed as meaning whether Lebombo ‗would be opening
during the forthcoming financial year‘. The question plainly did not seek to ascertain
whether the Lebombo RRO would be opening during the course of that financial year.
How it could have been understood as such is thus lost on me. That those were
parliamentary questions could hardly have altered the meaning of the question. If
anything, it seems to me, that our constitutional model sets fairly exacting standards
for Cabinet Ministers particularly in their interaction with Parliament. According to s 1

of the Constitution, the Republic of South Africa is ‗one, sovereign, democratic state‘
founded, inter alia, on ‗a multi-party system of democratic government, to ensure
accountability, responsiveness and openness‘. In Coetzee v Government of the
Republic of South Africa, Matiso and Others v Commanding Officer Port Elizabeth
Prison and Others 1995 (4) SA 631 (CC) at 637D, albeit with reference to the Interim
Constitution, Sachs J observed:
‗The values that must suffuse the whole process are derived from the concept of an
open and democratic society based on freedom and equality . . . The notion of an
open and democratic society is thus not merely aspirational or decorative, it is
normative, furnishing the matrix of ideals within which we work, the source from which
. . . [we derive] the principles and rules . . . [we apply], and the final measure . . . [we
use] for testing the legitimacy of impugned norms and conduct.‘

[23] Questions addressed by opposition parties to the Executive and Organs of
State (see s 239 of the Constitution) serve as an important mechanism at the disposal
of Parliament for exercising oversight and holding the executive and organs of state to
account (s 55 of the Constitution).  And, in terms of s 92(2) of the Constitution, Cabinet
Members are collectively, individually and directly accountable to Parliament for the
exercise of their powers and the performance of their functions. Moreover, s 13 of the
Powers, Privileges and Immunities of Parliament and Provincial Legislatures Act 4 of
2004 makes a member, which by definition includes a Minister or Deputy Minister (s
1), guilty of contempt of Parliament if such member, inter alia, commits an act
mentioned in section 17(1)(e). Section 17(1)(e), in turn, provides that ‗[a] person . . .
[who] wilfully furnishes a House or committee with information, or makes a statement
before it, which is false or misleading, commits an offence and is liable to a fine or to
imprisonment for a period not exceeding two years or to both the fine and
imprisonment.‘ Further, consistent with the National Assembly‘s constitutional
responsibility to ‗provide for mechanisms to ensure that all executive organs of State in
the national sphere of government are accountable to it‘, the Rules of the National
Assembly includes specific procedures for the questioning of Ministers, the Deputy
President and the President (rules 109-111). There is, as well, the Executive Ethics

Code,9 which not just re-affirms our commitment to the ‗promotion of an open,
democratic and accountable government‘ (s 2.2), but also provides that Members of
the Executive may not ‗wilfully mislead the legislature to which they are accountable‘
(s 2.3(a)). Tellingly, in England, Ministers who knowingly mislead Parliament are
expected to offer their resignation to the Prime Minister10 and such an offence might
also be proceeded against as a contempt.

[24] As De Vos and Freedman explain: 11
‗Accountability is the hallmark of modern democratic governance and implies that members of
the executive have to explain their actions to Parliament and its committees so that Parliament
can play a role in checking the exercise of power by members of the executive.‘
They add:
. . . accountability requires the establishment of institutional arrangements to effect democratic
control over the executive as members of the executive, unlike the MPs, are not directly
democratically elected.‘
(See also Democratic Alliance and Another v Masondo NO and Another 2003 (2) SA
413 (CC) paras 42 and 43.) Against that backdrop it is difficult to understand why the
fact that the questions were parliamentary questions somehow gave them a different
hue. Nor can I fathom what ‗parliamentary protocol and custom‘ Mr Apleni has in mind,
or how parliamentary language could possibly have caused the response to change
from the affirmative (as it ought to have been) to its exact opposite. That
notwithstanding, I am willing to approach the matter, as Mr Apleni would have us, on
the basis that the relevant authorities have every intention of proceeding with the
establishment of the Lebombo RRO.  For, it seems to me, that even approached thus,
the decision to close the PE RRO still suffers a want of rationality.

[25] When the decision to close the PE RRO was taken, it was in the belief that the
Lebombo RRO would be operational in April 2012. In that, the relevant authorities
were overly optimistic. Mr Apleni now states (in his answering affidavit in response to
the respondents application to adduce new evidence):

9 Regulation 6853 of 2000, which came into effect on 28 July 2000 in terms of s 2 of the Executive
Members‘ Ethics Act 82 of 1998.
10 Halsbury’s Laws of England vol 78 (2010) para 1084; Profumo's Case (1963) 218 Commons Journals
246.
11 P de Vos and W Freedman (eds) South African Constitutional Law in Context (2014) at 144.

‗34.
The Department hopes to have the temporary structures in place and operational by
February 2016. The erection of the temporary facilities will commence once the Department
receives the necessary authorisation from Treasury and the relevant zoning procedures have
been complied with. As set out in my letter to the Department of Home Affairs of 13 June 2014
(annexure MH3), I have requested the DPW to confirm the current zoning of the site as well as
how soon can the Department take occupation. Once all of the aforesaid matters have been
addressed, the erection of the temporary facilities will take approximately one month.‘
If the Lebombo RRO is set up by February next year (and of that, given the history of
the matter, there is at this stage no certainty) it would mean that Mr Apleni‘s initial
estimation was off by approximately four years. As the following excerpts from Mr
Apleni‘s affidavit reveal, the decision to close the PE RRO was ostensibly taken to
assist asylum seekers:
‗97.5
The larger strategic issue for the Department was finding strategies for dealing with
corruption within its own ranks, the safety of asylum seekers as they travelled inland from
ports of entry, and the preservation of their dignity and sense of security in ensuring that they
were able to renew their permits without having to fork out one cent in extortion money.
97.11 The inadequacy of staff in the busier RROs, the long queues that result in applications
not being attended to on the day that an applicant presents him or herself at an RRO, the high
number of files that the SCRA returns to the RSDO due to the incompleteness of the file or
interview with the RSDO – all these are matters that have been regular items of discussion
between the Deputy Minister, the members of SCRA and me.‘
Implicit in that must be an acceptance that Mr Apleni believed that the establishment
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 the decision 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 (see Pepcor Retirement Fund & another v Financial
Services Board & another 2003 (6) SA 38 (SCA) paras 47 and 48; Dumani v Nair &
another 2013 (2) SA 274 (SCA) para 32).

[26] That conclusion brings into sharp focus the question of remedy. As it was put in
Tswelopele Non-Profit Organisation and Others v City of Tshwane Metropolitan
Municipality & others 2007 (6) SA 511 (SCA) para 17:

‗. . . though the Constitution speaks through its norms and principles, it acts through the relief
granted under it. And if the Constitution is to be more than merely rhetoric, cases such as this
demand an effective remedy, since (in the oft-cited words of Ackermann J in Fose v Minister
of Safety and Security) ―without effective remedies for breach, the values underlying and the
right entrenched in the Constitution cannot properly be upheld or enhanced‖:‘ (Footnotes
omitted.)
Courts, as Harms JA observed, should not be overawed by practical problems.12 He
added:
‗[t]hey should ―attempt to synchronise the real world with the ideal construct of a constitutional
world‖ and they have a duty to mould an order that will provide effective relief to those affected
by a constitutional breach. Fose v Minister of Safety and Security held that -
―(a)ppropriate relief will in essence be relief that is required to protect and enforce the
Constitution. Depending on the circumstances of each particular case the relief may be a
declaration of rights, an interdict, a mandamus or such other relief as may be required to
ensure that the rights enshrined in the Constitution are protected and enforced. If it is
necessary to do so, the courts may even have to fashion new remedies to secure the
protection and enforcement of these all-important rights.
. . .
I have no doubt that this Court has a particular duty to ensure that, within the bounds of the
Constitution, effective relief be granted for the infringement of any of the rights entrenched in
it. In our context an appropriate remedy must mean an effective remedy, for without effective
remedies for breach, the values underlying and the right entrenched in the Constitution cannot
properly be upheld or enhanced. Particularly in a country where so few have the means to
enforce their rights through the courts, it is essential that on those occasions when the legal
process does establish that an infringement of an entrenched right has occurred, it be
effectively vindicated. The courts have a particular responsibility in this regard and are obliged
to ‗forge new tools‘ and shape innovative remedies, if needs be, to achieve this goal.‖‘
(Footnotes omitted.)
Harms JA added ‗what ―effective relief‖ entails will obviously differ from case to case.‘

[27] To be sure, courts proceed on the assumption that other arms of State will take
prompt and competent steps to comply with its orders and that further judicial
supervision will not be necessary. Moreover, there may be a myriad options available

12 Modderfontein Squatters, Greater Benoni City Council v Modderklip Boerdery (Pty) Ltd (Agri SA and
Legal Resources Centre, Amici Curiae); President of the Republic of South Africa & others v Modderklip
Boerdery (Pty) Ltd (Agri SA and Legal Resources Centre, Amici Curiae) 2004 (6) SA 40 (SCA) para 42.

to government and it is usually given the flexibility and discretion in selecting the
means by which its obligations can best be met. Roach and Budlender13 point out that:
‗complex remedial issues raise difficult questions implicating the separation of powers and the
appropriate roles of the judiciary, the executive and the legislature. Relief that requires the
state to take positive actions . . . raises polycentric issues that affect multiple parties and
budgetary priorities. Yet . . . it is significant that both South African and Canadian courts have
decided that on-going structural relief is appropriate in some instances, a conclusion that has
also been reached by other courts, most notably India and the United States‘. (Footnote
omitted.)
In Minister of Health v Treatment Action Campaign (No 2) 2002 (5) SA 721 (CC) (TAC
No 2) para 98, the Constitutional Court made clear that whilst there are no bright lines
separating judicial, executive and legislative functions from each other, there are
certain matters that fall pre-eminently within the domain of one or other of the arms of
government. And whilst all arms of government should be sensitive to and respect this
separation of powers, this did not mean that courts cannot or should not make orders
that have an impact on policy. In short, therefore, the approach by a court needs to be
flexible and responsive to the needs of a given case.

[28] The relevant authorities attempt to downplay the significance of the decision to
close the PE RRO, contending its closure, coupled with the closure of the two other
RROs gives rise to what it describes as ‗inconvenience‘ for asylum-seekers. But that
may well be to trivialise the vulnerability and desperate circumstances of many asylum
seekers in the country. It does not appear to be disputed that most asylum seekers,
who have been forced to flee their countries of origin, would in all likelihood have
exhausted their financial resources and other means after having travelled
considerable distances to reach South Africa. As a result, many join family,
acquaintances and communities that are already established and who are able to help
support them on arrival. If those communities are established in a particular
geographic area of the country, such as the Eastern Cape, it goes without saying that
that is where such persons will head. The suggestion by the relevant authorities
therefore that asylum seekers freely choose to live and work in Port Elizabeth or the
Eastern Cape and can likewise freely choose to live and work near one of the

13 K Roach and G Budlender ‗Mandatory relief and supervisory jurisdiction: When is it appropriate, just
and equitable?‘ 2005 SALJ 325 at 326.

remaining RROs, is untenable. Fran Ansley makes the point that ‗[t]he building of
social and economic capital and networks through a thicket of relationships and
channels that are fusing immigrants into society in ways that already appear
impossible to undo‘.14

[29] Moreover, the relevant authorities expressly accept that the effect of their
decision is that a person wishing to apply for asylum can now only apply to one of the
three remaining RROs. Such person will, no doubt, have to return to that RRO in
order, inter alia, to: have their interview conducted; their permit renewed; collect their
decision; and, if necessary, lodge and have their appeal determined. The
consequence is that such asylum seeker will now have to repeatedly and perhaps
frequently travel a considerable distance to one of the three remaining RROs over a
period of many months or years. For those who live and work in Port Elizabeth the
closest RRO will now be the one in Durban, some 900km away. 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 an RRO situated far away from the support
structures of their communities and families may prove well-nigh impossible. Repeated
visits to a distant RRO also have the potential to jeopardise the employment and job
security of an asylum seeker. And given the admitted backlogs and failing systems at
the remaining RROs, even those asylum seekers who manage to attend are at risk of
not obtaining the assistance and protection that they require.

[30] It is important to stress that this case is not and has never been about an
attempt to compel the DG to establish a new RRO where one has never existed
previously. It concerns the lawfulness of a decision by the DG, as he puts it, to ‗dis-
establish‘ an RRO, which had been located in Port Elizabeth since 2000. Sight cannot
be lost, as well, of the fact that his first decision to close the PE RRO to new arrivals
was taken on 11 October 2011. That decision, which did not withstand scrutiny by our
courts, made light of the fact that several communities of refugees and asylum

14 F Ansley ‗Constructing citizenship without a licence: the struggle of undocumented immigrants in the
USA for livelihoods and recognition‘ in N Kabeer (ed) Inclusive citizenship: Meanings and expressions
(2005) at 209.

seekers, including some 14 000 Somali refugees (who are represented in these
proceedings by the first respondent), reside and work in that geographic region. Those
communities provide vital support to new asylum seekers who have little to no
financial resources and means of self-support. The relevant authorities appear to
obfuscate the real complaint, which is not that there should be an RRO wherever
asylum seekers or refugees choose to live, but that RROs should be sufficient in
number and located so that asylum seekers and refugees are reasonably able to
access the services that they require and to which they are entitled under the Act.

[31] Until the end of 2010 there were six fully functional RROs situated in five
provinces and in metropolitan areas where asylum seekers could expect to access
employment and basic services. Rogers J correctly recognised the prejudice caused
to asylum seekers by the closure of the CT RRO, when he stated:15
‗Thousands of asylum seekers will either have to abandon the idea of residing in the Cape
Town area while their asylum applications are assessed, or they will need to spend time and
money to travel on a number of occasions to RROs in the north of the country. If they have
work in Cape Town, they may lose it because of the need to take off three or four days for
each attendance at an RRO. If they have dependants, they would need to leave them in the
care of others or travel with them.‘

And, as Eksteen J noted in his judgment, ‗the same consequences flow from the
closure of the PE RRO for asylum-seekers who live and work in the Port Elizabeth
area16 - or indeed, anywhere in the Eastern Cape.‘

[32] It is so that usually when a court reviews and sets aside a decision of an
administrative body it almost always refers the matter back to that body to enable it to
reconsider the issue and make a new decision (per Heher JA, Gauteng Gambling
Board v Silverstar Development Ltd & another 2005 (4) SA 67 (SCA) para 1).
Occasionally, however, as Heher JA added, ‗the court does not give the administrative
organ a further opportunity. Instead it makes the decision itself.‘ This appears to be
such a case. Given the stubborn adherence by the DG to his initial decision, why he
needs to bring his mind to bear on the matter again, as argued by counsel, is not
rationally explained. As long ago as 21 October 2011 the respondents were informed

15 Scalabrini Centre & others v Minister of Home Affairs & others 2013 (3) SA 531 (WCC) para 110.
16 Somali Association of South Africa Eastern Cape (SASA EC) v Minister of Home Affairs 2013 JDR
1502 (ECP) para 47.

by Ms Lusu that the decision of the DG was ‗cast in stone‘. And, on 16 September
2012 in an e-mail addressed to all stakeholders Mr Mabulu, made reference to ‗our
irrevocable decision‘ to close the PE RRO. I earlier made reference to two applications
by the respondents for leave to adduce further evidence – the first was the
Parliamentary question and answer that I have already alluded to, the second pertains
to an invitation by the relevant authorities circulated on 10 February 2015 calling a
‗stakeholder meeting on the closure of files in the [PE RRO], effective 30 April 2015‘.
The invitation to that meeting which was scheduled for 20 February 2015, reads:
‗In the spirit of fair administrative justice, the Department of Home Affairs cordially invites you
to a stakeholder meeting. The Port Elizabeth Refugee Reception Office was closed on the 21
October 2011. Subsequently, the Office commenced a process of closing case files. This
process will culminate on the 30 April 2015, whereby all applicants are expected to have
presented themselves at the Office to finalize their case or have their applications deemed as
abandoned. Categories of asylum seekers to come forward by the 30 April 2015 include
those:

Awaiting finalization of the Refugee Status Determination processes;

Awaiting finalization of the Appeal process;

Awaiting finalization of the Review by the Standing Committee on Refugee Affairs;

Still to collect their final decisions on status determination, appeal or review.‘
As the respondents point out, whilst the invitation purports to invite stakeholders to a
meeting ‗in the spirit of administrative justice‘, it is clear from the invitation itself that
the DHA has already ‗commenced a process of closing case files‘ and intends to
complete this process by 30 April 2015. This approach is extraordinary given that the
more recent decision to close the PE RRO was set aside by Eksteen J. And,
regardless of this pending appeal against the decision of Eksteen J, the DHA is,
according to the circular, taking active steps to implement the previous decision of the
DG to close the PE RRO. But that earlier decision was declared unlawful and set
aside by Pickering J. All of this appears to evidence a fixed view on the part of the
relevant authorities to close the PE RRO irrespective of the circumstances or their
legal obligations.

[33] Despite being ordered by Pickering J to reopen the PE RRO, and despite
having been refused leave to appeal by both the high court and this Court, the DHA
simply took no steps to comply with that order. Mr Apleni explains:

‗77.6
I deny that the Respondents took no steps at all to comply with the order of 16
February 2012. That court order was overtaken by events, as communicated in my letter to
Lawyers for Human Rights dated 21 September 2012. . .
. . .
96.3
I admit that the exercise of the power afforded in section 8(1) of the Refugees Act is
constrained by the principle of legality. I have submitted in various parts of this affidavit that
consequent on the court order of 16 February 2012, I remedied the failure to act in
accordance with the terms of section 8(1) of the Refugees Act. I have now taken a new,
rational and lawful decision as required in law, to close the PERRO.‘
It is not clear to me why Mr Apleni denies that they ‗took no steps at all to comply with
the order of [Pickering J]‘, when, as a matter of fact, it is patent that for six months
after the issuance of the order of Pickering J they did nothing. That denial, it needs be
added, is irreconcilable with his later statement ‗I remedied the failure to act‘. Implicit in
the latter statement is an acknowledgement that he had indeed failed to act in
compliance with the order of court. Most alarming though is that in circumstances
where he was being pressed to comply with Pickering J‘s order, he withheld for
several months from the relevant stakeholders the fact that a new decision had been
taken. In my view the relevant authorities were not free, in their election, to simply
disregard the order of Pickering J. The cornerstone of democracy and the rule of law is
the uncompromising duty and obligation upon all persons, more especially State
departments, to obey and comply with court orders. There are processes in place for
those who disagree with court orders. But they are not free to simply turn a blind eye
to the order nor do they have any discretion to not obey the order.

[34] In Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development
Company Limited (619/12) [2013] ZASCA 5 (11 March 2013); [2013] 2 All SA 251
(SCA) para 17 it was put thus:
‗. . . as Froneman J observed in Bezuidenhout v Patensie Sitrus Beherend Bpk 2001 (2) SA
224 (E) at 229B–C:
―An order of a court of law stands until set aside by a court of competent jurisdiction. Until that
is done the court order must be obeyed even if it may be wrong (Culverwell v Beira 1992 (4)
SA 490 (W) at 494A-C). A person may even be barred from approaching the court until he or
she has obeyed an order of court that has not been properly set aside (Hadkinson v
Hadkinson [1952] 2 All ER 567 (CA); Bylieveldt v Redpath 1982 (1) SA 702 (A) at 714).‖‘
Beylieveldt v Redpath 1982 (1) SA 702 (A) stated at 714E-G:

‗In Hadkinson v Hadkinson (1952) 2 All ER 567 sê DENNING LJ, met verwysing na 'n party
wat 'n Hofbevel verontagsaam het, te 575B-C:
―... I am of opinion that the fact that a party to a cause has  disobeyed an order of the Court is
not of itself a bar to his being heard, but if his disobedience is such that, so long as it
continues, it impeded the course of justice in the cause, by making it more difficult for the
Court to ascertain the truth or to enforce the orders which it may make, then the Court may in
its discretion refuse to hear him until the impediment is removed or good reason is shown why
it should not be removed.‖
Ek gaan, met eerbied, akkoord met hierdie benadering.‘

[35] 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 is
discharged. 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.17 As this Court stressed in Gauteng Gambling Board & another v MEC for
Economic Development, Gauteng 2013 (5) SA 24 (SCA) para 52: ‗[o]ur present
constitutional order is such that the State should be a model of compliance. It and
other litigants have a duty not to frustrate the enforcement by courts of constitutional
rights.‘

[36] That the State must obey the law, is a principle that is fundamental to any
civilised society. The logical corollary is that the State, its organs and functionaries
cannot arrogate to themselves the right not to obey the law or elevate themselves to a
position where they can be regarded as being above the law. That seems to be
precisely what has occurred here. Unfortunately it seems to me, in the light of the
history of this matter, that there is every likelihood of a future repetition of similar
conduct on the part of the relevant authorities. That being so, a declaratory order,

17 Hadkinson v Hadkinson [1952] 2 All ER 567 at 569C-G; Supreme Court Reference No 1 of 2012; Re
Prime Minister and National Executive Council Act 2002 Amendments and Reserve Powers of the
Governor General [2012] PGSC 20 paras 345-349. See also X Ltd v Morgan-Grampian (Publishers) Ltd
[1990] 2 All ER 1 at 11B-G.

without more, will be inadequate and place an unfair burden on the successful litigants
in a case such as this of grave systemic problems and when officials have proven
themselves not deserving of trust. In that regard what was said in Kalil NO & others v
Mangaung Metropolitan Municipality & others 2014 (5) SA 123 (SCA) para 30 is
apposite:
‗ . . . This is public-interest litigation in the sense that it examines the lawfulness of the
exercise by public officials of the obligations imposed upon them by the Constitution and
national legislation. The function of public servants and government officials at national,
provincial and municipal levels is to serve the public, and the community at large has the right
to insist upon them acting lawfully and within the bounds of their authority. Thus where, as
here, the legality of their actions is at stake, it is crucial for public servants to neither be coy
nor to play fast and loose with the truth. On the contrary, it is their duty to take the court into
their confidence and fully explain the facts so that an informed decision can be taken in the
interests of the public and good governance.‘

[37] It goes without saying that the refugees and asylum seekers encountered here
are amongst those who are most in need of protection. They do not have powerful
political constituencies and their problems, more often than not, are ignored by
government.  Previous orders of our courts appear to have done little to make their
problem visible and to cause the relevant authorities to comply with their obligations.
In Minister of Health and Others v Treatment Action Campaign and Others (No 2)
2002 (5) SA 721 (CC) para 129, the Constitutional Court held that additional relief in
the form of a structural interdict should be granted where ‗it is necessary to secure
compliance with a court order‘ – namely, ‗a failure to heed declaratory orders or other
relief granted by a Court in a particular case‘. Given the intransigence on the part of
the relevant authorities, it thus seems important to provide a remedy to the
respondents that is both effective and meaningful, for, as Ackermann J made plain in
Fose para 69:
‗Particularly in a country where so few have the means to enforce their rights through the
courts, it is essential that on those occasions when the legal process does establish that an
infringement of an entrenched right has occurred, it be effectively vindicated.‘

[38] In Sibiya & others v Director of Public Prosecutions, Johannesburg, & others
2005 (5) SA 315 (CC) paras 60-62 – a case concerned with the substitution of the
death sentence - the Constitutional Court pointed out that ‗the process has taken so

long that it will be inadvisable for this Court to assume that the death sentences will be
substituted as envisaged‘.
It accordingly held:
‗This court has the jurisdiction to issue a mandamus in appropriate circumstances and
to exercise supervisory jurisdiction over the process of the execution of its order
[Minister of Health and Others v Treatment Action Campaign and Others (No 2) 2002
(5) SA 721 (CC) (2002 (10) BCLR 1033) in paras [104] - [107].] It is appropriate in this
case for this to be done.‘18
In resisting the grant of a mandamus, the relevant authorities placed great store by the
dicta of Nugent JA in Scalabrini (paras 74-76) to the effect that: the fate of the [RRO]
is for the DG to decide; a court should not supplant that function; and, courts ought not
to compel the impossible. It must be remembered that in that case Nugent JA took the
view that the information on the papers was insufficient to support the conclusion of
the high court that its order was capable of being complied with. I do not believe that
we are at a similar disadvantage in this case. The relevant authorities accept that an
RRO can be set up within three months and the DG has made it clear that he has ‗not
closed the door to the establishment of additional RROs in other parts of the country‘.
In any event, we are not concerned with the establishment of an entirely new RRO,
but with one that has been in existence and operational since 2000. And, as the DG
has made plain, ‗the establishment of the Lebombo RRO went beyond the challenges
presented by the PERRO‘. Thus, as he put it, ‗with or without a fully functioning
PERRO, a new RRO at Lebombo has been identified as a strategic imperative to
enable the Department to ensure that the objectives of the Refugees Act are attained‘.
Accordingly, any order as may issue in respect of the PE RRO will not directly impact
on the DHA‘s plans in so far as Lebombo is concerned. Any such order will thus not
have the effect of constraining governmental policy in that regard or trespassing on
the domain of the executive.

18 See also 11 Lawsa 2 ed para 411; Sibiya & others v Director of Public Prosecutions, Johannesburg &
others 2005 (5) SA 315 (CC) para 64; Nyathi v MEC for Department of Health, Gauteng & another 2008
(5) SA 94 (CC) para 92; Residents of Joe Slovo Community, Western Cape v Thubelisha Homes &
others (Centre on Housing Rights and Evictions & another, Amici curiae) 2010 (3) SA 454 (CC) para
7;Occupiers of Mooiplaats v Golden Thread Ltd & others 2012 (2) SA 337 (CC) para 21; Pheko &
others v Ekurhuleni Metropolitan Municipality 2012 (2) SA 598 (CC) para 53.

[39] To sum up: In my view, this is an appropriate case, for a court to exercise its
supervisory jurisdiction to secure compliance with its order. On the one hand, it is
necessary that the respondents should know what progress is being made by the
relevant authorities and also to avoid being faced, once again, with a fait accompli
(Western Cape Minister of Education and Others v Governing Body of Mikro Primary
School and Another 2005 (10) BCLR 973 (SCA) para 51). On the other, the relevant
authorities can always approach the court to extend the period should it turn out to be
too short. This procedure, moreover, allows the court to be informed about the
progress being made in the implementation of its order. It follows that the conclusion
by Eksteen J (para a), that the decision by the DG ‗taken on 30 May 2012 to close the
PE RRO to new applicants for asylum‘ was unlawful and fell to be set aside, cannot be
assailed. However, paragraphs (b) and (c) of the high court‘s order need to be
reformulated in line with the views expressed in this judgment.

[40] In the result, save for setting aside paragraphs (2) and (3) of the order of the
court below, and substituting them with the orders that follow, the appeal is dismissed
with costs, to be paid by the first to third appellants jointly and severally, and to include
the costs of two counsel. Paragraphs (2) and (3) are substituted with the following:
‗(2.1)  The first to third respondents are directed to restore by 1 July 2015 the refugee
reception services to the Port Elizabeth Refugee Reception Centre such that new
applicants for asylum will be able to make applications in terms of s 21 of the
Refugees Act 130 of 1998 and, if they qualify, be issued with permits in terms of s 22
of the said Act.
(2.2)  The second respondent, the Director General of the Department of Home
Affairs, shall report in writing to the applicants not later than 15 April 2015 and,
thereafter, on or before the 15th day of each succeeding month as to what steps have
been taken and what progress has been made to ensure compliance with the
aforesaid order.
(3)
The parties are granted leave to apply upon the same papers, supplemented
insofar as they consider that to be necessary, for further relief.‘

_____________
V M Ponnan
Judge of Appeal

APPEARANCES:

For First Appellants:
M A Albertus SC (with him G R Papier and G G M Quixley)

Instructed by:

The State Attorney, Port Elizabeth

The State Attorney, Bloemfontein

For Respondents:
S Budlender (with him J Bleazard)

Instructed by:

Lawyers for Human Rights, Pretoria

Webbers, Bloemfontein

SUPREME COURT OF APPEAL OF SOUTH AFRICA

MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

FROM

The Registrar, Supreme Court of Appeal

DATE

25 March 2015

STATUS

Immediate

Minister of Home Affairs & others v Somali Association of South Africa & another (831/13)
[2015] ZASCA 35 (25 March 2015)

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal

Media Statement

Today the SCA dismissed an appeal by, amongst others, the Minister of Home Affairs (the Minister)
and Director General of the Department of Home Affairs (the DG) (collectively referred to as the
relevant authorities) and ordered them to restore the refugee reception services to the Port Elizabeth
Refugee Reception Centre such that new applicants for asylum will be able to make applications in
terms of s 21 of the Refugees Act 130 of 1998 and, if they qualify, be issued with permits in terms of s
22 of the said Act.  The SCA also directed the DG to report in writing to the Somali Association of
South Africa Eastern Cape and the Project for Conflict Resolution and Development (the
respondents) as to what steps have been taken and what progress has been made to ensure
compliance with the aforesaid order.

On 16 February 2012 and at the instance of the respondents, Pickering J in the Grahamstown High
Court reviewed and set aside the decision by the DG to close the Port Elizabeth RRO (PE RRO) (the
first decision). On 14 May 2012 Pickering J refused leave to the relevant authorities to appeal and
directed that pending the outcome of any further appeal, his order that a fully functional RRO be
opened and maintained, not be suspended. That notwithstanding and despite the order of Pickering J,
the PE RRO remained closed to new applicants. On 21 September of that year the DG indicated that
Pickering J’s order had been overtaken by events as a fresh decision had been taken to close the PE
RRO (the second decision). The respondents challenged the second decision. This time the matter
came before Eksteen J, who set that decision aside. He, like Pickering J, also ordered the relevant

authorities to ensure that an RRO is open and fully functional within the Nelson Mandela Metropolitan
Municipality. But he granted leave to the relevant authorities to appeal to the SCA.

The SCA found that the second decision by the DG fell short of constitutional legality because: (a) he
had failed to consult with interested parties, such as the respondents; and (b) it was irrational
inasmuch as his decision to close the PE RRO had been made in ignorance of the true facts material
to that decision. The SCA accordingly confirmed the conclusion reached by Eksteen J. During the
course of its judgment, the SCA expressed strong criticism of the relevant authorities and in particular
the DG for: (a) failing to disclose to it that the second decision had been taken whilst a petition was
pending before it in respect of the first decision – had that disclosure been made as the DG was
obliged to, the SCA would in all likelihood have concluded that the petition had become academic; (b)
failing to comply with the orders of court; and (c) showing a lack of candour in a response by the
Minister to a question by an opposition MP in Parliament. The SCA accordingly concluded that as the
relevant authorities had shown themselves not to be capable of trust, a simple declaration that the
second decision by the DG to close the PE RRO was unlawful, would not suffice and would not
constitute effective relief for the respondents.

--- ends ---