THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 585/2020

In the matter between:

SOMALI ASSOCIATION OF SOUTH AFRICA                                 FIRST APPELLANT
HASSAN ABDINASIR OSMAN                                                    SECOND APPELLANT
ALI JAMAC KHAYRE                                                                          THIRD APPELLANT
ABDULKADIR MOHAMED OMAR                                                    FOURTH APPELLANT
ABDIRAHMAN ALI MAHAMED                                                         FIFTH APPELLANT
MOHOMED AHMED                                                                            SIXTH APPELLANT
MOHAMED MAHMUD OSMAN                                                         SEVENTH APPELLANT
MARYAMA MUHUMED KAHIN                                                          EIGHTH APPELLANT
ABDULLAHI BASHIR HASSAN                                                        NINTH APPELLANT

and

THE REFUGEE APPEAL BOARD                                                  FIRST RESPONDENT
THE MINISTER FOR HOME AFFAIRS                                      SECOND RESPONDENT
THE DIRECTOR-GENERAL OF THE
DEPARTMENT OF HOME AFFAIRS                                             THIRD RESPONDENT
THE STANDING COMMITTEE FOR
REFUGEE AFFAIRS                                                                   FOURTH RESPONDENT

THE TSHWANE INTERIM REFUGEE
RECEPTION OFFICE                                                                      FIFTH RESPONDENT
THE PRETORIA REFUGEE RECEPTION OFFICE                       SIXTH RESPONDENT
THE STANDING COMMITTEE FOR
REFUGEE AFFAIRS                                                                    SEVENTH RESPONDENT

Neutral citation:
Somali Association of South Africa and Others v The Refugee
Appeal Board and Others (Case no 585/2020) [2021] ZASCA 124
(23 September 2021)
Coram:
NAVSA ADP, VAN DER MERWE, MOLEMELA, MBATHA AND HUGHES
JJA
Heard:
19 August 2021
Delivered:
This judgment was handed down electronically by circulation to the parties’
legal representatives by email. It has been published on the Supreme
Court of Appeal website and released to SAFLII. The date and time for
hand-down is deemed to be handed down on 23 September 2021.

Summary: Applications for refugee status – duty on decision-maker to assist asylum
seeker to obtain as full a picture as possible on which to predicate a decision – information
and evidence to be gathered or acquired in terms of the provisions of the Refugees Act
130 of 1998, the regulations and in accordance with the UNHCR Handbook – regard to
be had to the provisions of both s 3(a) and 3(b) of the Act – persecution too narrowly
viewed – onus to show that statutory requirements met on applicant but has to be viewed
with regard to a range of factors – applicant must be afforded an opportunity to confront
and deal with adverse factors that might weigh against him or her – Refugee Appeal
Board (RAB) and high court failed to consider that appeal was one in the wide sense –
RAB failed to observe fundamental administrative law principles – decisions set aside –
no basis for substitution order – structural interdict not warranted.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Mlambo JP sitting as court
of first instance):
The appeal is upheld with costs, including the costs of two counsel.
The order of the high court is set aside and substituted as follows:
‘1.1
The applicants’ delay in bringing the review of the decisions by the Refugee
Appeal Board outside the 180 day time limit prescribed in the Promotion of
Administrative Justice Act 3 of 2000 is condoned.
1.2
The following decisions of the Refugee Appeal Board (“RAB”) are reviewed and
set aside:
(a) Appeal number 2923/14 of 14 October 2014, dismissing the appeal
of Mr Hassan Abdinasir Osman.
(b) Appeal number 3459/14 of 1 December 2014, dismissing the appeal
of Mr Ali Jamac Khayre.
(c) Appeal number 1212/14 of 21 November 2014, dismissing the appeal
of Mr Abdulkadir Mohamed Omar.
(d) Appeal number 3848/14 of 2 March 2015, dismissing the appeal of
Mr Abdirahman Ali Mahamed.
(e) Appeal number 2683/14 of 28 November 2014, dismissing the appeal
of Mr Mohomed Ahmed.
(f) Appeal number 3455/14 of 14 October 2014, dismissing the appeal
of Mr Mohamed Mahmud Osman.
(g) Appeal number 538/13 of 26 March 2014, dismissing the appeal of
Mrs Maryama Muhumed Kahin.
(h) Appeal number 1790/13 of 22 May 2015, dismissing the appeal of Mr
Abdullahi Bashir Hassan.

1.3
The 2nd to 9th applicants’ appeals are remitted to the Refugee Appeals Authority
for hearings afresh, with hearings to commence not later than Monday 4 October
2021 and decisions to be rendered no later than Friday 5 November 2021.
1.4
The respondents are ordered to pay the appellants’ costs, including the costs of
two counsel, jointly and severally, the one paying the other to be absolved.’
The hearings and the adjudication of the appeals referred to in the substituted
order are to be conducted in terms of the principles set out in paras 71 to 92 of
this judgment under the various subheadings.

JUDGMENT

Navsa ADP (Van Der Merwe, Molemela, Mbatha and Hughes JJA concurring)
Introduction
[1] This case is about how applications for refugee status must be dealt with and
adjudicated. Before dealing with how the appeal arose, it is necessary, at the outset, to
accept that there is a legitimate State interest and concern to ensure that refugee status
is granted only to those who qualify, to disqualify unfounded applications and to provide
for the cessation of refugee status. In the case of persons who have come to our country
to seek asylum and those who might ultimately qualify for refugee status, the following
two quotes are apposite:
‘Migrants and refugees are not pawns on the chessboard of humanity. They are children, women
and men who leave or who are forced to leave their homes for various reasons, who share a
legitimate desire for knowing and having, but above all for being more.’1
The renowned author, Khaled Hosseini, is reported to have said the following:
‘Refugees are mothers, fathers, sisters, brothers, children, with the same hopes and ambitions
as us – except that a twist of fate has bound their lives to a global refugee crisis on an
unprecedented scale.’2

1 Pope Francis ‘Migrants and Refugees: Towards a Better World’ (2014), complete speech available from
www.vatican.va.
2 Khaled Hosseini, quote available from: www.unhcr.org.

International television news channels and other media regularly feature images of
refugee crises unfolding in many parts of the world with the attendant human cost. A
relatively recent stark image of the body of a three year-old toddler on a Turkish beach,
after fleeing from war in Syria, springs to mind.3 The skepticism, to which State authorities
and decision-makers are sometimes prone in relation to applications for refugee status,
should be tempered by what is set out above and by the obligations of countries embodied
in international instruments, which will be discussed in due course, and, of course by, the
prescripts of domestic legislation. I deal with the background culminating in the present
appeal in the paragraphs that follow.

[2] This is an appeal, with the leave of this Court, against a decision of the Gauteng
Division of the High Court, Pretoria (the high court), per Mlambo JP, dismissing an
application by the first to ninth appellants, for an order reviewing and setting aside
decisions of the Refugee Appeal Board4 (the RAB). That body had dismissed appeals by
the second to ninth appellants against decisions of Refugee Status Determination
Officers,5 refusing them refugee status. Their applications for refugee status are at the
centre of this appeal. More particularly, the legality and fairness of the process adopted
by the RAB in arriving at the impugned decisions are brought into question, including
whether it complied with its duty to assist an asylum seeker to procure evidence and
information on which the decisions were to be predicated. The alleged misapplication by
the RAB of the statutory requirements for refugee status is a further important issue in
this appeal.

[3] The first appellant is the Somali Association of South Africa, a registered non-
profit organisation, which has amongst its objects, the organisation of the Somali refugee
community and generally defending the rights and advancing the welfare of the Somali
community in South Africa. A person seeking recognition as a refugee in South Africa is,

3 Alan Kurdi, the three year old-toddler who drowned in the Mediterranean in 2015, was part of a flow of
refugees from the Middle East to Europe. The disturbing image which struck the conscience of the world
was carried in major mainstream media outlets, including The New York Times, The Guardian UK and BBC
news. See http://www.nytimes.com, https://www. theguardian.com, https://bbbc.co.uk.
4 Established by s 12 of the Refugees Act 130 of 1998.
5 They are appointed and operate in terms of s 8 and 24 of the Refugees Act 130 of 1998.

in terms of the Refugees Act 130 of 1998 (the Act), an ‘asylum seeker’.6 The second to
ninth appellants are the eight asylum seekers who were refused refugee status. I shall,
for convenience, where the context requires, refer to the second to ninth appellants
collectively, as the eight asylum seekers or, where they are referred to separately, I shall
refer to them as an asylum seeker in the sequence in which they appear as appellants.
For example, the second appellant would be the first asylum seeker, the third appellant,
would be the second asylum seeker and so on. It is in that order that the high court
referred to them.

[4] The respondents are as they were in the high court. The RAB is the first
respondent. The Chairperson of the RAB was cited in his official capacity as the second
respondent. The third respondent is the Minister of Home Affairs (the Minister), the
responsible Minister in terms of the Act. The Director-General of the Department of Home
Affairs (the DG) was cited as the fourth respondent. The Tshwane Interim Refugee
Reception Office was cited as the fifth respondent in the high court. The Pretoria Refugee
Reception Office and the Standing Committee for Refugee Affairs were cited as the sixth
and seventh respondents, respectively. Only the RAB, its chairperson, the Minister and
the DG filed opposing affidavits in the high court. They made common cause and were
represented by the same counsel, both in the high court and before us.

[5] Over and above seeking a review and the setting aside of each of the eight
decisions by the RAB, referred to in paragraph 1 above, the appellants had, in the high
court, sought, in addition, the following extensive substantive relief, which included
substitution orders and a structural interdict:
‘2
Each of the decisions of the RAB in paragraph 1 above are substituted with the following
decision:

2.1
The appellant’s appeal against the decision of the Refugee Status Determination
Officer is upheld

6 Section 1 of the Act defines an ‘asylum seeker’ as ‘a person who is seeking recognition as a refugee in
the Republic’. This definition is in line with an international understanding of the concept.

2.2
In terms of section 24(3)(a) of the Refugees Act 130 of 1998, the appellant is granted
asylum.
The 5th and 6th respondents are directed to issue the second to ninth applicants with formal
written recognition of refugee status as provided in section 27(a) of the Refugees Act read
with the provisions of regulation 15 of the Refugee Regulations (Forms and Procedure),
2000 published in GN R366 in GG 21075, of 6 April 2000, as amended by GN R938 in GG
21573 of 15 September 2000, within 10 days of service of this order.
. . .
It is declared that the approach of the RAB to the decisions referred to in paragraph 1 above
was unlawful and invalid in, inter alia, the following respects (“the repeated errors”):

5.1
The RAB treats political persecution as a necessary condition for refugee status in
terms of section 3 of the Refugees Act 130 of 1998 (“Refugees Act”), and accordingly:

5.1.1 fails to consider and apply section 3(b) of the Refugees Act in appropriate cases; and

5.2.2 fails to recognise that other forms of persecution qualify applicants for refugee status
in terms of section 3(a) of the Refugees Act.

5.2
The RAB fails to comply with the “shared burden of proof”, as set out in paragraph
196 of the UNHCR Handbook and Guidelines on Procedures and Criteria for
Determining Refugee Status.

5.3
The RAB refuses to consider the merits of an application for asylum unless it is
convinced as a matter of certainty that the applicant for asylum is credible in all
respects.

5.4
The RAB assesses the credibility of asylum seekers by having regard primarily to
alleged inconsistencies in their evidence, and makes adverse credibility findings
wherever it finds previous inconsistent statements in that evidence.

5.5
The RAB fails to put prejudicial country of origin information to applicants for asylum
and fails to afford them a reasonable opportunity of responding to such information.

5.6
The RAB requires applicants for asylum to supply their own interpreters at their own
expense, irrespective of whether it is practicable and necessary for the Department
of Home Affairs to provide interpretation services.
The second and third respondents are directed:

6.1
Within 6 months of the date of this order, to investigate and identify the causes of the
repeated errors in the RAB’s decision-making.

6.2
Within 12 months of the date of this order, to develop a plan or plans – in consultation
with the first applicant, the applicants’ attorneys and other interested parties – to
address the causes of these repeated errors in the RAB’s decision-making.

6.3
Within one week of the expiry of the deadline in paragraph 6.2 above, to file an
affidavit with this Court and the applicant’s attorneys setting out:

6.3.1 the findings of the investigation conducted in accordance with paragraph 6.1
above; and

6.3.2 the plan or plans developed in accordance with paragraph 6.2 above.
The second and third respondents are directed to file reports, on affidavit, with this Court
and the applicant’s attorneys, at least every 2 months from the date of this order, setting
out the steps taken to comply with paragraph 6 of this order.’

[6] It is necessary to record that the Act was amended quite substantially,
approximately one year after the high court’s judgment was delivered, with the
amendments coming into effect during January 2020. New regulations were
concomitantly promulgated. The material changes are those provisions that:
(a) replaced the RAB with the Refugee Appeals Authority (the RAA), the chairperson and
some members of which are now required to have a legal qualification;
(b) deal with the ability of one member of the RAA being able to hear and determine an
appeal;
(c) allow for the appointment of more persons to the RAA to deal with increased volumes
of work,
(d) extend the bases for exclusion from refugee status;
(e) set out that a Refugee Status Determination Officer (RSDO) in adjudicating
applications for refugee status must do so having regard to the provisions of the
Promotion of Administrative Justice Act 3 of 2000 (previously there was reference to the
just administrative provisions of the Constitution) and must, in particular, ensure that an
applicant fully understands the procedures, his or her rights and responsibilities, and the
evidence presented.

[7] The attendant regulations also provide greater clarity on how the RSDO must
conduct hearings in relation to applications for refugee status and how further information,
evidence and clarification might be sought and obtained. They also provide that an
interview must be recorded. The definition section, under ‘hearing before Refugee Status
Determination Officer’, envisages interviews being recorded, ‘either digitally or otherwise’.
This ought to lead to greater transparency and accountability. Digital recordings, to a large
extent, ought to exclude disputes concerning the nature and tenor of the interviews. But
more about the amendments later. The eight asylum seekers were at the relevant times
dealt with in terms of the Act and the regulations as they then stood.

[8] The Act, in its pre-amended and post amendment forms, deals with what was
referred to earlier, namely the State’s interests to ensure that refugee status is granted to
only those who qualify. It provides for the disqualification of unfounded applications and
the cessation of refugee status.7 The Act prescribes how applications for refugee status
must be dealt with and provides for appeals. In dealing with such applications, it must be
emphasised, once again, that State authorities are required to ensure that constitutional
values, including those that embrace international human rights standards set by
international conventions and instruments in relation to those seeking asylum, adopted
by South Africa,8 are maintained and promoted. Section 2 of the Act, in recognition of the
aforesaid values, entrenches the international principle of non-refoulement,9 an aspect
noted by the high court and discussed later in this judgment.

7 See ss 3, 4 and of the Act and s 5 in its pre, and post amendment state.
8 See Somali Association v Limpopo Department of Economic Development, Environment and Tourism and
Others 2015 (1) SA 151 (SCA) at para 44 and Minister of Home Affairs and Others v Watchenuka and
Another 2004 (4) SA 326 (SCA) at paras 2-7, and the provisions of s 6 of the Refugees Act 130 of 1998 in
relation to the applicable international instruments- now s 8A. See also Ruta v Minister of Home Affairs
2019 (2) SA 329 (CC) at paras 23-34 and in relation to how asylum seekers should be treated at paras 27
to 29.
9 Section 2 reads as follows:
‘Notwithstanding any provision of this Act or of any other law to the contrary, no person may be refused
entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar
measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is
compelled to return to or remain in a country where –
(a) he or she may be subjected to persecution on account of his or her race, religion, nationality,
political opinion or membership of a particular social group; or

[9] It is now necessary to set out what the appellants contended are the facts against
which their appeals before the RAB should have been adjudicated. It is important, for
reasons that will become apparent later, to stress that much of what appears immediately
hereafter, concerning the circumstances under which the eight asylum seekers left their
country of origin, is drawn from the founding affidavit in support of the application in the
high court, rather than from the information supplied by the eight asylum seekers in their
applications for asylum or from the information they supplied to the RAB.

The founding affidavits
Conditions in Somalia and the flight by the eight asylum seekers from their country
of origin
[10] The eight asylum seekers described how they were compelled to flee the civil war
and resultant humanitarian crisis that endured in Somalia between 2007 and 2012. They
explained that Somalia has been in a state of civil war since 1990 and that it has not had
a stable government since the fall of the Barre regime in 1991. They stated that estimates
of the deaths caused by the conflict vary between 500 000 and 1 million and pointed to a
report by the United Nations High Commission for Refugees (UNHCR), indicating that
there are over 975 000 registered Somali refugees living in countries comprising the horn
of Africa. The appellants ventured that the global figure must, therefore, be much higher.

[11] According to the appellants, the period between 2006 and 2012 was the most
significant, as that was the time when they had fled the conflict in Somalia. They stressed
that this was when the conflict was at its most intense with Al-Shabaab, a militant group
that threatened the government, at the height of its power and influence, and that troops
from African countries had been deployed to Somalia to counter that threat. There was
extensive fighting involving warlords and clan-based militias. The conflict in Somalia had
been concentrated in Central and Southern Somalia. The appellants detailed the various

(b) his or her life, physical safety or freedom would be threatened on account of external
aggression, occupation, foreign domination or other events seriously disturbing or disrupting
public order in either part or whole of the country.’
See also Gavric v Refugee Status Determination Officer [2018] ZACC 38; 2019 (1) BCLR 1 (CC); 2019 (1)
SA 21 (CC) para 26.

phases of the conflict and the role therein of Al-Shabaab, which according to them is the
foremost militant group, with links to Al-Qaeda. In support of their own assertions the eight
asylum seekers relied, additionally, on reports by the UNHCR.

[12] The Transitional Federal Government (the TFG) supported by Ethiopian troops
retook the capital, Mogadishu, in the south of the country, in December 2006. In 2007,
Al- Shabaab and its allies launched waves of attacks on the TFG and Ethiopian forces in
Mogadishu. By March 2007, the African Union forces landed in Mogadishu in support of
the TFG. Between 2007 and 2009 Al-Shabaab had gained control of most of Mogadishu
and seized towns and villages in South and Central Somalia. By January 2009, Ethiopian
forces withdrew from Somalia, and Al-Shabaab continued to extend its geographical
control.

[13] Between 2011 and 2012, the conflict between African Union forces, in support of
the TFG, and Al-Shabaab continued. By August 2011, Al-Shabaab had withdrawn from
Mogadishu and had resorted to guerilla tactics in that city. In October 2011, Kenyan
forces, at the invitation of the TFG, entered the fray. January 2012 saw Ethiopian forces
capture towns in Central Somalia. In September 2012, the Somalia Federal Government
(the SFG) was inaugurated.

[14] Between 2013 and 2015, the SFG and African Union forces waged campaigns
against Al-Shabaab and other insurgent groups, recapturing towns, and villages.
Effectively, so the appellants alleged, Al-Shabaab still retains control of much of South
and Central Somalia.

[15] The United Nations sanctioned a further African Union troop surge in Somalia
between July 2015 and May 2016. The appellants contended, with reference to a Danish
Immigration Services report, dated May 2015, that Mogadishu is presently only nominally
under government control and is struggling to provide basic security to its population. The
appellants pointed out that notwithstanding that assessment, Kenya and some European
countries started deporting refugees back to Somalia from 2013 already. They noted that
the UNHCR and prominent human rights groups have condemned the forced return of

refugees to Somalia. So, for example, Amnesty International, in a statement during
October 2014, condemned such actions. The relevant part of the report quoted by the
appellants reads as follows:
‘Countries should under no circumstances attempt to return individuals to south and central
Somalia as the fragile security conditions have not led to a fundamental, durable and stable
change.’
The UNHCR guidelines published in 2014 were in similar vein.

[16] The appellants asserted, emphatically, that South and Central Somalia remained
in a state of civil war and that the need to protect Somalian refugees remains. Moving
from the generalised statements concerning conditions in Somalia, the appellants
proceeded to deal with the individual circumstances of the eight asylum seekers. Seven
of them hail from Mogadishu. The first alleged that he had lost his mother and sister due
to rocket fire during 2007. Two years later, whilst employed by an NGO, he received an
anonymous telephone call threatening his life. This, it was alleged, was in line with the
modus operandi of Al-Shabaab. He went on to describe how this caused him to terminate
his services with the NGO. In 2009, his brother-in-law, who worked for a German NGO
and who supported him financially, was murdered. This forced him to return to work with
the NGO, his erstwhile employer. He claimed that late in 2009 he and a friend were
kidnapped and blindfolded and taken to an Al-Shabaab prison, south of Mogadishu,
where they received daily beatings and were warned not to work for the government. After
two weeks, he escaped and fled to a government-controlled district of Mogadishu. He
was later arrested on suspicion of being a member of Al-Shabaab and was held in
detention for three days where he was beaten by government officials. His sister
managed to negotiate his release during 2010. Thereafter he started saving money to
fund his escape from Somalia. He left Somalia in 2011 and arrived in South Africa on 13
March 2011.

[17] The second asylum seeker alleged that he had also been victimised by
Al- Shabaab. He owned a small stall in Bakaara market, which is Mogadishu’s largest
marketplace. During 2006, a rocket landed in the market leaving him with shrapnel
wounds. A year later, a bomb landed approximately 20 metres away from his stall,

resulting in casualties. He was traumatised by this. In 2009, Al-Shabaab raided his home,
killing his friend and abducting a neighbor. He too received an anonymous threatening
telephone call. This was because it was claimed that he worked for the government. He
went into hiding and used money from the sale of his business to escape from Somalia.
He left Somalia in October 2009 and arrived in South Africa on 7 February 2010.

[18] The third asylum seeker stated that he had left Somalia to escape the combined
threats of Al-Shabaab and government forces. In May 2009, during the time that Al-
Shabaab controlled many districts in Mogadishu, he was arrested and blindfolded by
government soldiers. Thereafter, he was interrogated about whether he was a member
of Al-Shabaab. During that time, he was subjected to beatings. He was subsequently
released when family members paid a bribe. In August 2009, after he had returned to his
employment at the Bakaara market, he was approached by Al-Shabaab, seeking to
recruit him. He refused their offer. Sometime thereafter, he was arrested by members of
Al-Shabaab, who took him to their training camp. This time he was coerced into joining
them. He used a visit to his family to plot an escape to Kenya, from where he travelled to
South Africa. He left Somalia in October 2009 and arrived here during 21 January 2010.

[19] The fourth asylum seeker fled Somalia, allegedly, to escape forced recruitment
by Al-Shabaab. He too lived in Mogadishu during a period of great political instability and
experienced the conflict between warring factions. He claimed that in May 2010 Al-
Shabaab called at his home and demanded he join them. He told them he would seek his
parents’ approval. During June 2010, they returned but he hid from them. He
subsequently fled Somalia arrived in South Africa on 28 June 2010.

[20] The fifth asylum seeker, like the fourth, claimed that he had been subjected to Al-
Shabaab’s forced recruitment drive in Mogadishu. He left Somalia during August 2007
and arrived in this country during December 2007.

[21] The sixth asylum seeker stated that his brother was killed by Al-Shabaab during
March 2007. The sixth asylum seeker claimed that he had witnessed many battles and
had lived in Somalia in constant fear of his life. In October 2008, he was shot in the upper

thigh, after being caught in crossfire. He was admitted to hospital where he remained until
he was discharged in June 2009. He left Somalia in October 2009 and arrived here in
December 2009.

[22] The seventh asylum seeker and the only woman in the group had her home hit
by a grenade during 2006, killing two of her eight children and leaving her with severe
injuries. After she was discharged from hospital, she decided to leave Mogadishu and
moved south, near the town of Dhobley, where there were also ongoing battles. She was
subsequently injured in an explosion in Dhobley. In 2008, she moved once again to a
camp of internally displaced persons. The combination of civil war, the constant danger
of injury and death and severe deprivation, so she claimed, compelled her and her two
daughters to leave Somalia. They arrived in South Africa in May 2010.

[23] The eighth asylum seeker, unlike the others, was born in a rural area outside the
port city of Kismayo in Southern Somalia. He belonged to a nomadic family that kept
livestock. In 2006, his family was displaced by fighting between insurgents and
government forces, causing them to relocate to a town near the Kenyan border, outside
the town of Dhobley. In 2008, his mother was killed in crossfire. In 2011, his uncle was
caught up in a battle and was killed. Soon thereafter his cousin was killed in Dhobley by
Al-Shabaab. He fled Somalia in 2012 and arrived in South Africa in June that year.

The refugee status determination process
[24] In their affidavits the eight asylum seekers described the refugee status
determination process that each had been subjected to and set out the attendant
circumstances. Each had completed the standard application form for refugee status at a
Refugee Reception Office. These were required to be completed in English. None of
them, at the time, was fluent in that language. Even though almost all of them were
provided with an interpreter, the quality of the interpretation, so they alleged, was wanting.
One of them was not provided with any interpreter at all.

[25] They claimed that their applications were then considered by Refugee Status
Determination Officers (RSDOs). It is not clear whether all of them were afforded an

interview, and those who could recall an interview stated that the interviews were cursory
and suffered from a lack of proper communication. Their applications were subsequently
all rejected by the RSDOs. Consequently, the eight asylum seekers noted appeals to the
RAB. They submitted that an appeal before the RAB is a wide appeal, in that it is not
confined to the record of the decision of the RSDO. Put differently, it amounts to a hearing
afresh. Thus, so they contended, it was obligatory for the RAB to be proactive. It was
submitted that the RAB had a duty to adequately question asylum seekers and to conduct
further research so as to have as full a picture as possible to reach a decision on each of
their applications.

[26] The appellants noted that their appeals conducted before the RAB were brief,
averaging between 20 to 30 minutes and that questioning was limited. They were all
required to provide their own interpreters. Many brought acquaintances to assist them.
Two of them recruited other asylum seekers to assist. Communication was thus poor. In
the result, all their appeals were dismissed. The RAB’s ‘judgments’ were, according to
the appellants ‘startlingly similar, with large portions of the reasoning repeated verbatim,
down to the same spelling and grammatical errors’. The RAB was accused of using a pro
forma ‘judgment’ with limited consideration of the individual circumstances of each of the
eight asylum seekers.10

The grounds of review and the extensive relief sought
[27] The dismissal of the appeals by the RAB is what led to the application for review
in the high court. The grounds of review were stated as follows:
‘141 As indicated above, the RAB’s decisions share at least four common errors of law, fact and
procedure:

141.1  First, the RAB applied the wrong test, in that the members misinterpreted and
misapplied section 3 of the Refugees Act;

141.2  Second, the RAB applied the wrong burden of proof, in that the members ignored
the duty to adopt a shared burden;

10 Appeals are adjudicated and ‘decisions’ are made by the RAB in terms of s 26 of the Act. The RAB’s
duties and powers are set out in s 14 of the Act.

141.3  Third, the RAB adopted the wrong approach to credibility findings, in that the
members misunderstood the purpose of credibility findings and adopted an overly
narrow understanding of credibility;

141.4  Fourth, the RAB decisions were all procedurally unfair, as they breached the
principle of audi alteram partem.’

[28] The grounds were expanded on as follows. First, in respect of the wrong test
allegedly being applied by both the RSDOs and the RAB, it was contended that s 3(a) of
the Act mirrors the standard definition of refugee status under the United Nations
Convention Relating to the Status of Refugees (the 1951 Convention) and, secondly, that
s 3(b) reflected an expanded definition of refugee status, which neither the RSDOs nor
the RAB appreciated. The appellants also pointed out that s 3(b) was in line with Article
1(2) of the Organisation of African Unity Convention Governing the Specific Aspects of
Refugee Protection (the OAU Convention). At this point, it is necessary to have regard to
the provisions of s 3, which reads as follows:
‘Subject to Chapter 3, a person qualifies for refugee status for the purposes of this Act 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).’ (My emphasis).

[29] Developing the thesis that the wrong test was applied, the appellants contended
that s 3(b) of the Act made it clear that persecution under s 3(a) was not the sole criterion
for refugee status. Even if there had been no persecution, the appellants submitted that
s 3(b) required a decision-maker to determine if an asylum seeker was compelled to leave
their country of origin due to ‘external aggression, occupation, foreign domination or

events seriously disturbing or disrupting public order’ either in part or the whole of the
person’s country of origin. The appellants contended that this fundamental misconception
is demonstrated when one examines the ‘judgments’ of the RAB’. They refer to the
following identical statements in ‘six’ of the eight judgments of the RAB:
‘149.1
Six of the eight judgments contain the identical statement, making persecution a
necessary condition for refugee status:

“The appellant in casu needs to show that he/she left his/her country for specifically
politically motivated reasons, should appellant fail to show this, appellant’s refugee
claim will be rejected . . . [R]efugee law is essentially a means of preventing the
sending back of an individual to a state in which a risk of persecution on political
grounds or opinion exists.”’
A reading of the record shows that this appears in five, not six of the RAB decisions.

[30] Similarly, in respect of the remaining judgments, the following appears:
‘149.2
The remaining three judgments also made persecution the focus, describing the test in
virtually identical terms:

“The appellant claims that he left his country of origin because of civil war. He failed
to demonstrate that he was harmed or persecuted in any way. He merely relied on
the fact that he feared to be killed. There was nothing which shows a sustained and
systemic violation of his human rights.”

And:

“The appellant claims that she was persecuted because of the civil war that occurred
in the year 2006. She claimed that her life was in danger . . . [S]he failed to
demonstrate that she was harmed or persecuted in any way. She has merely relied
on the general instability in her home country but there is nothing which shows a
sustained and systematic violation of her rights.”’

[31] The appellants contended that the repeated references by the RAB to ‘sustained
and systemic’ violations, in any event, indicate a misunderstanding of the meaning of
‘persecution’. According to the appellants, the RAB failed to properly apply s 3(b) of the
Act, ignored it, and treated s 3(a) as the sole criterion for asylum. It was submitted that
had the RAB properly applied s 3(b), it would have recognised that the conditions in
Somalia compelled the eight asylum seekers to leave Somalia and that they qualified for

asylum status in South Africa. They took the view that the ongoing civil war in Somalia,
the threat of Al-Shabaab, and the weak state of the government ‘undoubtedly constituted
“events seriously disturbing or disrupting public order”.’

[32] In support of its proposition that the RAB took an unjustifiably restricted view of
persecution, the appellants pointed to the death threats and attempts at forcible
recruitment by Al-Shabaab and the detention by government forces of at least five of the
eight asylum seekers, which they contended qualified as persecution. They submitted
that the RAB unjustifiably limited itself to considering whether there was persecution on
grounds of political opinion.

[33] The next ground of review raised by the appellants was that the RAB erred in
applying the wrong burden of proof. The RAB was accused of wrongly placing the burden
of proof, in relation to satisfying the requirements for refugee status, exclusively and
unfairly on the shoulders of the eight asylum seekers. In this regard, it was contended
that our courts have endorsed the concept of a ‘shared burden, which places a duty on
the decision-maker to adopt an inquisitorial and proactive approach in evidence
gathering’. This they said was consistent with the UNCHR’s Handbook and Guidelines on
Procedures and Criteria for Determining Refugee status. The position adopted by the
appellants was that the shared burden principle ties in with a wide appeal before the RAB.

[34] Additionally, the appellants pointed to the provisions of s 26 of the Act in terms of
which the RAB had powers; to invite the UNHCR to make oral and written representations;
to refer a matter to the Standing Committee for further investigation; request the
attendance of any person who, in its opinion, is in a position to provide further information;
and to request an applicant to appear before it to provide such further information that it
may deem necessary. The appellants alleged that there was no indication that the RAB
was alive to the shared-burden principle.

[35] A third and further ground of review was that the RAB had adopted the wrong
approach in assessing the credibility of the eight asylum seekers and over-emphasised
its importance. The contentions in this regard were as follows. First, that the RAB,

impermissibly, made credibility the sole prerequisite for upholding a claim to refugee
status. Second, that it adopted an overly restrictive approach to credibility, ‘focusing solely
on alleged inconsistencies between statements’ provided to the RSDOs and the RAB. In
relation to this ground of review, the appellants referred to the following part of the RAB
judgments in all eight matters:
‘In Principles of International Refugee Law the learned author, Guy S Goodwin-Gill states the
following: “One of the hardest tasks in refugee determination, and one that is central to the
process, is assessing the credibility of the applicant . . . The decision-maker must assess not only
credibility of the applicant, but also the credibility of the story in itself . . .” This means that the
Board must be convinced that the appellant is telling the truth before it can consider the principal
issues.’
The appellants were adamant that this statement has no basis in the works of the cited
author or in any other work on refugee law. This, they submitted, constituted a
fundamental error of law on at least two levels.

[36] The first was that the RAB suggested that credibility was a prerequisite for
refugee status, whereas our courts have held that it is but one of a range of factors to be
considered. The UNCHR Handbook also advocates such a holistic approach, indicating
that credibility should assume prominence only when there is no external evidence to
support an applicant’s claim.

[37] Second, the appellants took issue with the statement by the RAB that it ‘must be
convinced that the appellant is telling the truth’. They submitted that the burden of proof
in refugee claims is less than a balance of probabilities and certainly less than the
certainty that the RAB demanded.

[38] The appellants went further and criticised the RAB for elevating coherence of
testimony as the sole requirement for a positive finding on credibility. In this regard, it
referred to the discrepancies, held against the eight asylum seekers, between their oral
testimony and that which appeared in the application form and with what was
communicated during the RSDO hearing.

[39] A fourth ground of review was that of procedural unfairness. Principally, the
complaint was that the audi alteram partem rule (the audi rule) was not observed. It was
contended that there was no indication that prejudicial country of origin information was
placed before the eight asylum seekers to enable them to contest it. That the audi rule
was flouted, so said the appellants, was evident from all eight judgments. The eight
judgments recorded that the RAB had consulted objective country of origin information
before making their decisions but does not indicate that this was placed before the eight
asylum seekers to refute.

[40] The appellants contended that in so far as adverse credibility findings were made
based on inconsistencies, those should have been put to the eight asylum seekers for a
response.

[41] With reference to the grounds of review the appellants submitted that a case had
been made out for special circumstances, which warranted the court hearing the review
to substitute the decision of the RAB without referring the matter back and that further
delay would cause the eight asylum seekers unjustifiable prejudice, particularly if regard
is had to the considerable time delay from the time that they first made application for
asylum status.

[42] As indicated in para 5 above, the appellants also sought a structural interdict,
based on what they considered to be sufficient proof of systemic deficiencies in the
decision-making processes of the RAB. On this aspect it contended that it would be just
and equitable for the court to direct the Minister and the Director-General to conduct an
investigation into the causes and extent of the problem, and to prepare a plan to address
these problems and to report back to the court. The systemic deficiencies they submitted
were those of a repeated pattern of errors in decision-making of the RAB, which they said
went beyond a coincidence. On this issue they cited criticisms by academics and
practitioners and provided supporting affidavits by refugee law practitioners. The errors
relate to the misapplication of all the issues of law on which the appellants relied for the
review in the high court. The appellants sought to show that the RAB repeatedly failed to
have regard to the provisions of s 3(b) of the Act in deciding applications for refugee

status. The appellants also referred to decisions of our courts showing how the RAB had
misunderstood crucial concepts of refugee law and to repeated findings by courts that
procedural rights were flouted.

[43] The principal deponent on behalf of the appellants recorded how he had
attempted to engage with the RAB on the high number of rejections of appeals by asylum
seekers from Somalia. The stance adopted by the RAB was that the political situation in
Somalia had stabilised, which, according to the appellants, does not accord with the
factual situation on the ground. In relation to the conditions in Somalia, the appellants
provided a British Broadcasting Corporation timeline, stretching from the thirteenth
century to May 2015, which indicated continued strife, presently mainly due to acts of
aggression by Al-Shabaab. The application in the high court was launched in December
2015. The conditions described are thus those that prevailed more than five years ago.

[44] In seeking the extensive relief referred to in paragraph 4 above, the appellants
explained that setting the RAB decisions aside and referring them back for
reconsideration would cause unjustifiable prejudice to the asylum seekers. They pointed
out that this Court would, in the prevailing circumstances, be justified in substituting the
RAB’s decision, especially since it had all the relevant information at hand. The appellants
contended that referring the matter back would, considering that there was a backlog in
RAB appeals in 2015, of some 100 000 cases, result in further delays and cause the
asylum seekers undue hardship. The asylum seekers had applied for refugee status
between three and six years before the review application was launched.

[45] In relation to the structural interdict sought, the appellants contended that the
RAB was obdurate and persisted in misapplying the law and failing to follow fair
procedure. This, despite repeated attempts by relevant role-players to persuade them
otherwise. They contended that the extensive relief sought was justified. That, in sum,
was the case for the appellants.

[46] The appellants provided all eight of the RAB ‘judgments’. They provided some of
the completed application forms and decisions of the RSDO. Some of the written appeals

lodged by the eight asylum seekers were provided. Very few of the interview notes by
either the RSDOs or the RAB were provided. We were informed by counsel on behalf of
the appellants that this was due to a ‘patchy’ Rule 53 record having been provided.

An Illustration of how the applications for refugee status were dealt with
[47] The application form and the other documentation related to the eighth asylum
seeker are illustrative of how the applications were dealt with. The relevant details are as
follows. The reason for applying for asylum set out in his application form was
curt:‘Because of the civil war in Somalia’. The RSDO interview notes record the following:
‘The applicant stated that he left his country because the Al-Shabaab and the interim Government
are fighting and people are being killed. He stated that the Al-Shabaab bomb his house while his
parents and brother were in the house and they died at the same time in 2008. He stated that he
was at a location visiting a friend when the Al-Shabaab bomb his house and when he came back,
he found that they were dead and the neighbours told him that that the Al-Shabaab bomb the
house. He stated that from 2008 until 2012, the time he left he was in Somalia living in fear as the
fight is still going on and he could not live in fear for the rest of his life.’
In response to the question why he was applying for asylum, he replied that it was for
‘protection’. Asked about the measures he took to solve the problems he faced he replied
that he left the country. As to why he did not want to return to Somalia, he replied that he
might be killed.

[48] In the reason for its decision the RSDO stated the following:
‘According to the country of information of Somalia published by the New York Times on the 04
April 2012, the famine eased, the violence ebbed and, in 2012, Somalia began showing signs of
hope. Mogadishu, the capital, which had been reduced to rubble during years of civil war, started
to make a remarkable comeback. With the Shabab having withdrawn from the City in August. In
early April 2012, the city was enjoying its longest epoch of relative peace since 1991: eight months
and counting and on August 2012, Somalia has elected a new Government which has replaced
the Transitional Government. I found that there is no reasonable ground to believe that you will
be forced to join the Alshabab when you are returned to your country.’

[49] In his affidavit in support of his appeal to the RAB, the eighth asylum seeker
stated only the following:

‘There is no stability and no peace in Somalia. Young men are forced to join Al-Shabaab and
when you refuse you might be killed.’

[50] The relevant part of the RAB decision is set out hereafter:
‘Appellant was personally affected by the political instability in Somalia when the said Al Shabaab
& government soldiers fought in the very same bush (just outside Kismayo) where appellant were
looking after his camels; not the appellant nor any of his camels were injured in the process. This
is in essence what compelled the appellant to leave his country of origin.’

[51] Under the heading ‘Credibility’ the following appears:
‘The Appeal Board accordingly assessed the credibility of the appellant’s story and makes the
following remarks in passing.
[a] Appellant’s appeal hearing differed materially from his earlier information captured in his DHA-
1590 & RSDO decision. There was a bare denial on the appellant’s side when discrepancies were
put to him; appellant at times conveniently blamed the interpreter.
[b] An internationally acclaimed refugee law expert: James Hathaway (The Law of Refugee
Status p 101) describes persecution as the sustained and systemic violation of basic human
rights resulting from failure of state protection.
[c] The Handbook and Guidelines on Procedures and Criteria for Determining Refugee
Status p30 para 203 & 204 states the following on the issue of benefit of doubt.
“After the applicant has made a genuine effort to substantiate his story there may still be a lack of
evidence for some of his statements. It is hardly possible for a refugee to “prove” every part of his
case and, indeed, if this were a requirement the majority of refugees would not be recognized. It
is therefore frequently necessary to give the applicant the benefit of the doubt.
The benefit of the doubt should, however, only be given when all available evidence has been
obtained and checked and when the examiner is satisfied as to the applicant’s general credibility.
The applicant’s statement’s must be coherent and plausible, and must not run counter to generally
known facts’’.’

[52] Under the heading ‘Ruling’ the following appears:
‘[a] The appellant never made out a case to justify persecution on the grounds envisaged in S3
of Act, 130 of 1996. The appellant throughout his case was silent on the issue of his fear of being
persecuted, be it the past, present and or the future. There was no link between the appellant’s
mother’s death & appellant’s relocation to SA more than four years later.

[b] Appellant entered SA to benefit from the rights afforded to refugees under the Refugees Act,
130/1998. Appellant fabricated his claim to fall within the parameters of refugee law.
[c] In the circumstances the Appeal Board finds that the appellant has not discharged the burden
of proof which rested on him. The appellant’s unwillingness to return to the Somalia, based on
this factual enquiry, is not based on a well-founded fear of persecute. Appeal Board accordingly
finds that the appellant does not have a reasonable fear of persecution should he return to the
Somalia.
[d] The appellant when asked what would happen to him should he returned to Somalia replied
that the fighting problem still exists even now in Somalia. The appellant failed to make out an
individual case that it is unsafe for him to return to Somalia. The Appeal Board finds that the
appellant’s case is not coherent and plausible & appellant accordingly does not deserve to be
given the benefit of the doubt.’

The basis for opposition by the first four respondents
[53] The respondents were adamant that the application for review was an appeal,
disguised as a review. They accepted that s 3 of the Act provides the criteria for refugee
status. They also referred to s 4 of the Act, which deals with exclusion from refugee status.
They contended that this demonstrated, starkly, that the recognition of refugee status was
subject to qualifications and limitations.

[54] In dealing with s 26 of the Act and the then applicable regulation 14 of the
Regulations11 under the Act, the respondents took the view that the power to decide
appeals from decisions of RSDO vested in the RAB and what the appellants sought in
the high court had the effect of divesting it of that power, which it was best suited to
exercise. It was submitted that by itself, assuming the power to decide the appeal, the
court would impermissibly be breaching the principle of the separation of powers.

[55] The respondents did not engage with any of the appellants’ factual assertions
concerning the irregularities and deficiencies complained of, choosing instead to insist

11 Regulation 14 sets out the time limit within which an appeal in terms of s 26 must be lodged and states
that it must be lodged in person at a designated Refugee Reception Office.

that what the appellants sought was an appeal on the merits of the decisions of the RAB,
which they were not entitled to bring.

[56] In the concluding paragraph of their affidavit opposing the relief sought, the
respondents stated the following:
‘The Applicants in truth have brought an appeal cloaked as a review. The issue however is not
whether first respondent is thought to be wrong. It is whether it has acted unlawfully, firstly
because it has not complied with the Refugees Act to the level required and secondly as first
respondent’s decisions are polycentric and the Court should not interfere with them more so as
they have been made lawfully.’
The respondents took the view that they had acted strictly in terms of the provisions of
the Act and that the decisions by the RAB were not susceptible to challenge.

The judgment of the high court
[57] It is against the background set out above that Mlambo JP adjudicated the matter.
First, he acknowledged the world-wide displacement of people due to armed conflict, and
the hardships that ensued. He had regard to the United Nations Convention Relating to
the Status of Refugees of 1951 (the UN Convention) and the Organisation of African Unity
Convention Governing the Specific Aspects of Refugee Protection of 10 September 1969
(the OAU Convention). He also took into account that South Africa had ratified both the
UN Convention and the 1967 Protocol, as well as the OAU Convention.

[58] The high court recognised that the purpose of the Conventions was to provide
protection to refugees and to regulate how they are treated, and more particularly, in
relation to their applications for refugee status. Furthermore, Mlambo JP stated the
following:
‘An important principle common to the Conventions is the incorporation of the non-refoulement
principle which effectively means that no person may be refused asylum in another country where
that person faces real threats to his or her life especially life threatening persecution in such
person’s country of origin should he be refused asylum.’

He appreciated that the non- refoulement principle has been entrenched by the legislature
in s 2 of the Act. In this regard he took into account the decision of the Constitutional
Court in Ruta v Minister of Home Affairs,12 where the following was said:
‘[24]
This is a remarkable provision. Perhaps it is unprecedented in the history of our country’s
enactments. It places the prohibition it enacts above any contrary provision of the Refugees Act
itself – but also places its provisions above anything in any other statute or legal provision. That
is a powerful decree. Practically it does two things. It enacts a prohibition. But it also expresses a
principle: that of non refoulement, the concept that one fleeing persecution or threats to “his or
her life, physical safety or freedom” should not be made to return to the country inflicting it.
[25] It is a noble principle – one our country, for deep-going reasons springing from
persecution of its own people, has emphatically embraced. The provenance of section 2 of the
Refugees Act lies in the Universal Declaration of Human Rights (Universal Declaration), which
guarantees “the right to seek and to enjoy in other countries asylum from persecution”.’

[59] The high court went on to deal with the merits of the review application. It took
into account that in terms of s 14 of the Act, the RAB performs an adjudicatory function.
That section of the Act reads as follows:
‘14. (1) The Appeal Board must –

(a)  hear and determine any question of law referred to it in terms of this Act;

(b)   hear and determine any appeal lodged in terms of this Act;

(c)  advise the Minister or Standing Committee regarding any matter which the Minister or
Standing Committee refers to the Appeal Board.
(2)   The Appeal Board may determine its own practice and make its own rules.
(3)   Rules made under subsection (2) must be published in the Gazette.’

[60] In considering the bases for the review, the high court thought it important to keep
in mind that the RAB was ‘constrained to the materials before it when considering the
appeals’. In this regard the high court noted that most of what was referred to and relied
on by the appellants in their affidavits filed in support of the review application was not
before the RAB or indeed the RSDOs. It proceeded to consider the treatment of each
appeal by the RAB against the factual material before both. It is necessary to repeat the

12 Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC).

entirety of the recital by the high court of the information on which the RAB decided each
appeal as well as the bases of their decisions. That recital is set out hereafter.

[61] Mlambo JP commenced with the first asylum seeker:

‘[18]  The second applicant informed the RAB that he left Somalia in January and arrived in
South Africa in March 2011 and applied for asylum. This applicant stated in his DHA Form that
he left Somalia due to the civil war there. He also mentioned this when he applied for asylum, and
this much is evident in the hearing notes of the RSDO who dealt with his asylum application. The
RAB also recorded that it appeared from the RSDO hearing notes that the second applicant was
never persecuted by Al-Shabaab or by Government forces, that he left Somalia because "there
is a lack of peace and stability. He fled his country of origin and came to SA lo seek protection.
During the RAB hearing, the record shows that the second applicant also asserted the civil war
as the reason why he left Somalia. He is recorded as having stated that his life was in danger and
that he was invited by his brother to come to South Africa. It is also recorded that he was never
recruited by either Al-Shabaab or by the Somali Government forces.
[19] The RAB then, in assessing the second applicant's appeal stated –
“The applicant claims that he left his country of origin because of civil war. He failed to
demonstrate that he was harmed or persecuted in any way. He merely relied on the fact
that he feared to be killed. There was nothing which shows a sustained and systemic
violation of his human rights. The appellant managed to stay in country for eight months
nothing happened to him.”
The RAB then went on to find, that the appellant had suffered no "persecution or harm in terms
of section 3 ".
The RAB concluded with the following statement –
"The Board finds that he does not have a well-founded fear of persecution. The appellant
was not compelled to leave his country of origin, he managed to stay in the same region
after his brother's death, 2007 nothing happened to him. There is nothing from his
evidence which indicated that he was persecuted in his country of origin. The board finds
that he came to South Africa seeking a better life."’

[62] The high court then went on to deal with each of the remaining asylum seekers
in turn:

‘[20]
ln respect of the third applicant, the RAB recorded that he was a resident of Mogadishu.
According to this recordal, this applicant told the RAB that he left Somalia in 2010 as a result of
the war and to feeling insecure. It is also recorded that he mentioned that one of his
acquaintances in Mogadishu was allegedly killed by AI-Shabaab after having received a phone
call two weeks prior to being killed. The third applicant also allegedly received a phone call
subsequent to his acquaintance's demise and assumed that whoever was phoning him intended
to kill him as well. This applicant then, fearing for his life decided to leave Mogadishu for South
Africa.
[21] The RAB summed up the matter by first finding that the factual background sketched in
the paragraph above, is what compelled the applicant to flee Somalia. To the RAB the killing of
the applicant's acquaintance could not have compelled him to leave Mogadishu. The RAB –
"The irony of the appellant's claim is that his entire family currently resides peacefully in
Mogadishu; the Board therefore infers that it is safe for appellant to return to Mogadishu.
The appellant is however not prepared to go back to Somalia as he fears that whoever
phoned him will kill him, fears nursed by the appellant in this regard Is not reasonable and
or "well-founded".
According to the RAB this applicant never made out a case to justify persecution on the grounds
envisaged in section 3 of Act. The RAB then concluded that the applicant had not mentioned that
he feared being persecuted, "be it the past, present and or the future". The RAB also concluded
that nothing happened to this applicant which compelled him to flee Somalia for South Africa and
dismissed his appeal.
[22] In the case of the fourth applicant the RAB recorded that he did not belong to a political
party nor was he ever arrested, that at all material times he resided in Mogadishu. He testified
that Al-Shabaab recruited young men to join the organisation and that they killed those who
refused to join the organisation. The RAB recorded that he decided to leave Somalia before being
so approached by AI-Shabaab, in search of a safe and or better life. He was assisted by his uncle,
financially to leave Somalia. The RAB further recorded that his uncle was subsequently allegedly
killed by AI-Shabaab during December 2013, apparently after he admitted to Al-Shabaab
operatives during interrogations that he had assisted the fourth applicant to go to South Africa.
The RAB recorded the following -
"It was put to the appellant that the death of his uncle was irrelevant to his asylum claim
due to the long lapse between events. The irony of the appellant’s claim is that his entire
family currently resides peacefully in Mogadishu, the Board therefore infers that it i[s] safe
for appellant to return to Mogadishu. Appellant raised new evidence that he was arrested

and or abducted by Al-Shabaab (between Jan – April 2009) for a period of two weeks
where after he managed to escape. Appellant blamed the new evidence firstly on the
interpreter & secondly admitted that he forgot to mention it at an earlier stage. During the
course of the proceedings it also transpired that in addition to Al-Shabaab the Government
also wanted appellant to join them; in fact, the Government offered appellant a job if
appellant joined them & fought against A1-Shabaab in turn".
[23] In its conclusion the RAB stated that –
“The appellant never made out a case to justify persecution on the grounds envisaged in
section 3 of the act... [t]he appellant failed to make out an individual claim of what
compelled him to leave Mogadishu ...ln the circumstances the Appeal Board finds that the
appellant has not discharged the burden of proof which rested on him. The appellant is
unwilling to return to Mogadishu as he claims that the presence of Al-Shabaab is
everywhere in Somalia and that they are still killing people, conceding at the same time
that his entire family is still residing peacefully in Mogadishu. It was the appellant's
testimony that he left before anything could happen to him. The Appeal Board finds that
the appellant’s case is not coherent and plausible and appellant does not deserve to be
given the benefit of the doubt.”
[24] Regarding the fifth applicant, the RAB recorded that he also did not belong to a political
party and that he was at no stage arrested. The RAB recorded that he testified that there was a
civil war in Somalia; that there were a lot of political parties in Somalia; that the political parties
were fighting with the Government; that Al-Shabaab came to appellant's house during the
beginning of 2010 and ordered him to join the organisation and he refused. The RAB further
recorded that he left for Kenya where he remained for ten days. Furthermore, the following was
recorded by the RAB –
"Appellant in his DHA-1590& RSDO hearing stated that he left Somalia as a result of lack
of peace and stability; that he came to SA to get peace and an education; that he cannot
stay in SA without proper documentation."
The RAB referred to this applicant's evidence as:
"[N]ot entirely consistent with appellant’s oral evidence. Appellant in his notice of appeal
amongst other things averred that when the situation in Somalia became unbearable for
him, he decided to leave looking for a place of safety and security away from persecution.
Appellant was silent on what happened to him in Somalia that compelled him to leave. "
[25] The RAB concluded its' assessment of this applicant's appeal with the following findings

"The Board is satisfied that appellant does not face a reasonable possibility of persecution should
be return to Mogadishu. It was not appellant's testimony that he left Mogadishu as a result of
events seriously disrupting and or disturbing the public order in Mogadishu. The once-off attempt
by Al-Shabaab did not compel appellant to leave Mogadishu. The Board cannot exclude the
possibility that appellant is an economic migrant in that he voluntarily left Somalia to take up
residence and employment elsewhere. The Board finds corroboration of this fact when appellant
in his DHA-1590 and RSDO hearing makes mention of the fact that he came to SA to get an
education and that he is applying for asylum as he cannot stay without proper documents in SA.
In the circumstance the Appeal Board finds that the appellant has not discharged the burden of
proof which rested on him."
[26] It appears from the record that the sixth applicant informed the RAB that he left Somalia
during 2007, then aged 26, claiming that the Government in Somalia was defeated in 1991, that
Somalia has been uncontrollable ever since and that different tribes were fighting with each other
in the whole of Somalia and Mogadishu. The applicant told the RAB that he was personally
affected by the fighting in that different tribes wanted him to join them but he refused. The RAB
then states –
"Appellant embarked on his journey to SA 16 years post 1991 as he was too young to
leave earlier. This is background information of what made appellant leave Somalia
during 2007. The standard of proof is that of a "reasonable risk" and must be considered
in the light of all the relevant circumstances i.e. past persecution and a forward-looking
appraisal of risk. The appellant in casu needs to show that he left his country for
specifically politically motivated reasons, should appellant fail to show this, appellant’s
refugee claim will be rejected. Taking into account that refugee law is essentially a means
of preventing the sending back of an individual to a state in which a risk of persecution
on political grounds or opinion exists. Appellant failed to highlight an incident in
Mogadishu that compelled him to leave for SA. Appellant made an informed decision to
move to SA as an adult. Appellant's family is currently residing in Mogadishu. The Board
finds that nothing happened to the appellant that compelled appellant to leave
Mogadishu. Appellant did not explain when, how & under circumstances the different
tribes wanted appellant to join them. Appellant was only threatened to be beaten when
he refused to join the respective tribes. The appellant never made out a case to justify
persecution on the grounds envisaged in S3 of Act, 130 of 1998. Appellant throughout
his case was silent on the issue of his fear of being persecuted, be it the past, present
and or the future. The Board cannot exclude the possibility that appellant is an economic

migrant. The perception is that people in SA have better life & that SA is an economically
viable country to reside in. It was a planned & calculated move on the part of the appellant
to come to SA during 2007. In the circumstance the Appeal Board finds that the appellant
has not discharged the burden of proof which rested on him. "
[27] The seventh applicant informed the RAB that he fled Somalia, in December 2009,
because of the civil war, that his brother died in the year 2007 as a result of the war between
AI-Shabaab and the Government. The RAB recorded that the applicant stayed for two years in
Somalia after the death of his brother and that nothing happened to him during that time and that
he never relocated elsewhere in Somalia during that time. It is also recorded that he stated that
he subsequently fled to Kenya, Mozambique, Zimbabwe until he arrived in South Africa. The RAB
recorded the following –
"The appeal Board finds the appellant did not suffer persecution or harm in terms of
section 3 of the Refugee Act. The Board further finds that he does not have a well-founded
persecution. The Appellant was not compelled to leave his country of origin, he managed
to stay in the same region after his brother's death in 2007 and nothing happened to him.
There is nothing from his evidence which indicated that he was persecuted in his country
of origin. The Board finds that he came to South Africa seeking a better life. It is unlikely
that the appellant will face a reasonable possibility of harm or persecution were he to
return to Somalia. The appellant on appeal records can return safely to his country origin,
there are areas which are identified not to be affected by civil war and are government's
control."
[28] In so far as the eighth applicant is concerned the RAB recorded that in the DHA form and
RSDO's notes this applicant stated that there was a civil war between Al-Shabaab and the
Government since 2006, that her family house was bombed and destroyed due to the civil war,
that her father, brother and daughter were killed. She told the RAB that because of the civil war
she left Somalia and went to Kenya, settling on the border area between Kenya and Somalia for
a period of two years during which nothing happened to her. She told the RAB that she left Kenya
because of the poor and unbearable living conditions and starvation. The RAB recorded that she
stated that subsequent to leaving Kenya during 2008, she went to Tanzania where she was
arrested and imprisoned for a year and three months because she was an illegal immigrant. The
RAB further recorded that she stated that in January 2010, she returned to Kenya and then went
back to Somalia arriving there in April 2010. The RAB further recorded that she stated that upon
her arrival in Somalia she noticed that there was still instability although nothing happened to her
upon her return. Due to this instability she decided to leave Somalia and travelled to South Africa.

[29] During her appeal hearing she stated that she came to South Africa to seek protection.
The RAB recorded the following in respect of this applicant –
"The appellant claims that she was persecuted because of the civil war that occurred in
the year 2006, she claimed that her life was in danger. Her story lacks substance and she
failed to demonstrate that she was harmed or persecuted in any way. She has merely
relied on the general instability in her home country but there is nothing which shows a
sustained and systematic violation of her human rights. She was in Kenya for a period of
two years where nothing happened to her and she left Kenya because of unbearable living
conditions and starvation ...The Board finds that the appellant did not suffer persecution
or harm in terms of section 3 of the Refugees Act. The Board further finds that she does
not have a well-founded fear of persecution. The appellant in April 2010, she availed
herself to the protection of her country of origin when she went back to Somalia. The
Board finds that nothing happened to her upon return to her country of origin. She was
not compelled to leave her country of origin. The Board further finds that she stayed in
Kenya for a period of two years and was given protection by that country. There is nothing
from her evidence which indicated she was persecuted in Kenya because of her
nationality. She left Kenya because she was seeking a better life for herself and her
children. It is unlikely that the appellant will face a reasonable possibility of harm or
persecution if she were to return to Somalia. The appellant on appeal records there is
nothing that indicates that she was either tortured, physical attacked or arrested while she
was in her country during 2010. She can return safely to her country of origin, there are
areas which are identified not to be affected by civil war and are under government's
control."
[30] As far as the ninth applicant is concerned the RAB recorded that he mentioned that his
mother died in 2008 and that he does not know the whereabouts of his father, that he had no
education, did not belong to a political party and was never arrested by Government forces. The
RAB further recorded that this applicant herded camels when he lived in Somalia and that he
left due to the fighting between AI-Shabaab and Government soldiers. The applicant informed
the RAB that he was personally affected by the political instability in Somalia when AI-Shabaab
and Government soldiers fought in the area where he was herding camels, just outside Kismayo,
but neither he nor the camels were harmed in that shootout.
[31] The RAB then, with reference to the version mentioned above, records -
"This is in essence what compelled the appellant to leave his country of origin. The
appellant never made out a case to justify persecution on the grounds envisaged in S3 of

Act, 130 of 1996. The appellant throughout his case was silent on the issue of his fear of
being persecuted, be it the past, present and or the future. There was no link between the
appellant's mother death & appellant's relocation to SA more than four years later.
Appellant entered SA to benefit from the rights afforded to refugees under the Refugees
Act, 130/1998. Appellant fabricated his claim to fall within the parameters of refugee law.
In the circumstances the Appeal Board finds that the appellant has not discharged the
burden of proof which rested on him. The appellant's unwillingness to return to the
Somalia, based on this factual enquiry, is not based on a well-founded fear of persecution.
Appeal Board accordingly finds that the appellant does not have a reasonable fear of
persecution should he return to the Somalia. The appellant when asked what would
happen to him should he return to Somalia replied that the fighting problem still exists
even now in Somalia. The Appeal Board finds that the appellant's case is not coherent
and plausible & appellant accordingly does not deserve to be given the benefit of the
doubt."

[63] Having dealt with the individual treatment by the RAB of each of the eight asylum
seekers, the high court proceeded to deal first, with the submission on behalf of the
appellants, that the RAB had adopted an overly restrictive approach to the issue of
‘persecution’, as provided for in s 3(a) of the Act. The high court went on to hold that it
was ‘immediately apparent’ that when dealing with each appeal the RAB focused on
whether the asylum seekers were personally exposed to conduct amounting to
persecution and whether each was exposed to a personal threat causing him or her to
flee Somalia. The RAB considered whether the asylum seekers had other family
members living with them when they decided to leave Somalia and whether such family
members would have experienced similar threats as those faced by them. The high court
reasoned as follows:
‘The basis for this approach is clear, if the civil war was the reason for the asylum seekers to flee
Somalia, clearly the violent circumstances presented by that armed conflict cannot be selective,
everyone living in the affected area would have been under threat.’

[64] The high court held that the finding by the RAB that there was no threat to the
lives of the eight asylum seekers was based on the evidence presented by them and that
there was no restrictive approach by the RAB on the question of ‘persecution’. It found

that the eight asylum seekers failed to present evidence that the personalised threats
endured giving them no real choice but to escape Somalia.

[65] Mlambo JP went on to find that the criticism on behalf of the appellants that the
RAB had failed to apply the provisions of s 3(b) was also misconceived. In that regard,
the high court stated that it was clear from the reasoning of the RAB that it had applied
the provisions of that subsection. The reasons provided for refusing the appeal, so the
high court held, indicated that s 3 had been holistically applied. It concluded that it was
clear that the RAB had applied its mind to the facts and bore in mind the provisions of s
3 (a) and (b). The high court held it against the eight asylum seekers that they had failed
to mention any circumstances or facts that suggested that their personal safety was at
risk nor had any showed compulsion forcing them to flee Somalia. In this regard the high
court stated that the first to third asylum seekers referred to generalised civil war reasons.
The fourth, the high court said, merely referred to Al-Shabaab’s attempted recruitment of
him, which caused him to flee Somalia. The sixth asylum seeker, the high court found,
had remained in Somalia for a period of two years after his brother was killed and then
left Somalia although nothing appears in that period to have intervened to cause him to
leave Somalia. The fifth asylum seeker, the court found, decided to leave Somalia on the
basis of a single firefight between Al-Shabaab and government forces. The seventh
asylum seeker, so the high court held, left Somalia and remained in Kenya for two years
before she went to Tanzania, from where she returned to Somalia where she suffered no
persecution at all and then left for South Africa. The eighth asylum seeker was a herder
and came closest to the violence when on one occasion he was herding camels and there
was a fight between Al-Shabaab and government forces. He was not injured nor was he
the target of either. The high court came to the conclusion that the RAB could not be
faulted.

[66] The high court criticised the present appellants for attempting to straightjacket the
RAB and compelling them to apply a ‘blanket’ approach to asylum seekers from Somalia,
which approach was legally unsustainable and would render the RSDOs and the RAB
redundant. The high court iterated that the approach to reviews of this nature was that a

court should show due deference to specialist entities. The high court warned against
judicial activism. It found ultimately that the RAB had not acted unlawfully.

[67] In relation to the burden of proof in applications for asylum status and appeals
before the RAB, the high court held that it was ‘ill-conceived’ to postulate that there was
a shared burden of proof regarding eligibility for refugee status. The high court held that
para 196 of the UNHRC Handbook did not support that view. The following passage of
the judgment is relevant:
‘It is correct that the handbook states that there is a duty to ascertain and evaluate all relevant
facts which is the shared responsibility of the applicant and the examiner. That does not mean
that the burden of proof regarding refugee status eligibility is now shared. What is shared is the
responsibility to put all relevant facts before the RAB which is then required to provide information
at its disposal and conduct research in respect of the state of affairs in the country of origin of the
applicant. However, at the end of the day, the burden of proof still rests with the applicant and not
with the RAB. It is correct that the RAB has a duty to gather information should this be necessary.
Information gathering is done when it becomes apparent that such information could assist in
deciding the application or appeal. An asylum seeker has the burden of placing the necessary
facts before the RSDO or RAB why he/she should be granted asylum . . . The fact of the matter
is that the asylum seekers presented cases that lacked any substance regarding their qualification
or entitlement to refugee status in South Africa. There is therefore no merit to the submission of
the applicants that the burden of showing entitlement to asylum status was shared between them
and the RAB.’

[68] In relation to the contention by the appellants that an asylum seeker’s credibility
was overemphasised by the RAB when it came to the assessment of the application for
refugee status, the high court held that it had no merit. In this regard, it stated the
following:
‘The RAB found that it could not believe the applicants on their versions that they were personally
at risk and that they were forced to flee Somalia. In fact, where the RAB made credibility findings
this is borne out by the facts before it. The applicants’ submission suggests that the RAB shouldn’t
have paid any attention on that aspect. This cannot be and I fail to find a basis that gives a Court
the latitude to dictate to the RAB, as the specialist appellate tribunal in refugee status
determination matters, how to assess the material placed before it especially where the issue of

credibility features. On the objective facts before it, the RAB found inconsistencies and it was
entitled to consider them and their impact on its decisions. That Courts may approach those same
issues differently is no acceptable yardstick to set aside the decisions of the RAB which are
contrary to those of the Courts.’

[69] In respect of the appellants’ complaints that the audi principle was not observed,
the high court found that they too were without merit. It said the following:
‘It is clear from the factual matrix regarding each asylum seeker that the RAB committed no
procedural irregularity, when dealing with the appeals. The asylum seekers were each provided
with an ample opportunity to participate in their appeal hearings. They were allowed to present
their cases and to answer any questions that arose. The country of origin information argument
is misplaced. There was no need on the RAB to confront the asylum seekers with country of origin
information as the asylum seekers failed on their own to come up with substantive bases justifying
the grant of refugee status. They presented hopelessly inadequate cases and the RAB can
therefore not be faulted for denying them refugee status.’

[70] Turning to the appellants’ complaint regarding the lack of interpreters, Mlambo
JP held, at para 54 of the judgment, that in this case all the applicants had been assisted
by their own interpreters during the appeal hearings and that there could therefore be no
suggestion of any prejudice to any of them. In the result, the application for review was
dismissed with each party to pay its own costs. It is against the aforesaid conclusions and
the resultant order that the present appeal is directed. In the paragraphs that follow I deal
with whether the conclusions reached by Mlambo JP were justified.

Discussion and conclusions
The duty to assist to obtain relevant information and evidence so as to have as full
a picture as possible on which to predicate a decision on refugee status
[71] A good starting point when applying the provisions of the Act, as recognised by
the high court, and with reference to Ruta, is an appreciation of the importance of the
principle of non-refoulement, entrenched in s 2. The RSDOs, the RAB and finally the high
court, were mistaken in their view of how the statutory process leading up to the
adjudication of an application for refugee status or an appeal was designed to unfold. In

terms of s 21(2)(b) of the Act, a Refugee Reception Officer (RRO) must, at source, in
accepting an application form from an asylum seeker, ‘see to it that the application form
is properly completed, and, where necessary, must assist the applicant in this regard’. In
terms of s 21(2)(c) a RRO ‘may conduct such enquiry as he or she deems necessary in
order to verify the information furnished in the application.’ Section 24(1)(a) of the Act
makes it clear that upon receipt of an application for asylum, the RSDO, ‘in order to make
a decision, may request any information or clarification he or she deems necessary from
an applicant or Refugee Reception Officer’. Furthermore, he or she, where necessary,
‘may consult with and invite a UNCHR representative to furnish information on specified
matters’.13 Additionally, he or she may, with the permission of the asylum seeker, provide
the UNCHR with such information as may be requested.14 As pointed out on behalf of the
appellants, s 26(3) of the Act provides that the RAB may invite the UNCHR representative
to make oral or written representations; request the attendance of any person who is in a
position to provide relevant information; of its own accord, make further enquiry or
investigation; and request the applicant to appear before it to provide such further
information as it may deem necessary.

[72] In Gavric v Refugee Status Determination Officer, in dealing with s 24 of the Act
in relation to an exclusion hearing, the Constitutional Court said the following:
‘Section 24(1) of the Act provides that an RSDO may, when considering an asylum application,
request further information from an applicant, the Refugee Reception Officer, or the United
Nations High Commissioner for Refugees (UNCHR) representative. The Handbook recognises
that it may be necessary for the RSDO to assist an applicant in obtaining relevant information in
order to properly determine the application. This is premised on the factual reality that persons
fleeing their country often arrive with the barest necessities and often cannot afford legal
representation.’15

[73] Regulation 4 of the Regulations in force prior to them being substituted in 2020
provided that an RSDO was obliged to ensure that an asylum seeker is provided adequate

13 Section 24(1)(b) of the Act.
14 Section 24(1)(c).
15 Gavric v Refugee Status Determination Officer [2018] ZACC 38; 2019 (1) SA 21 (CC).

interpretation. Regulation 5 stated that ‘where practicable and necessary, the Department
of Home Affairs will provide competent interpretation for the applicant at all stages of the
asylum process.’ Where it was not practicable, an applicant would be required to provide
an interpreter. In the latter event, an applicant must be given at least seven days advance
notice. The measures referred to in the preceding paragraphs were clearly designed to
ensure effective communication and to ensure efforts towards the presentation of as full
a picture as the circumstances permitted before an assessment ensued and a decision
on refugee status was reached.

[74] The UNHCR Handbook and Guidelines on Procedures and Criteria for
Determining Refugee Status16, under the heading, ‘Establishing the Facts’ and the
subheading ‘Principles and Methods’, states the following:
‘195. The relevant facts of the individual case will have to be furnished in the first place by the
applicant himself. It will then be up to the person charged with determining his status (the
examiner) to assess the validity of any evidence and the credibility of the applicant’s statements.
196. It is a general legal principle that the burden of proof lies on the person submitting a claim.
Often, however, an applicant may not be able to support he's statements by documentary or other
proof, and cases in which an applicant can provide evidence of all his statements will be the
exception rather than the rule. In most cases a person fleeing from persecution will have arrived
with the barest necessities and very frequently even without personal documents. Thus, while the
burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the
relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may
be for the examiner to use all the means at his disposal to produce the necessary evidence in
support of the application. Even such independent research may not, however, always be
successful and there may also be statements not susceptible of proof. In such cases, if the
applicant's account appears credible, he should, unless there are good reasons to the contrary,
be given the benefit of the doubt.
197. The requirement of evidence should thus not be too strictly applied in view of the difficulty of
proof inherent in the special situation in which an applicant for refugee status finds himself.
Allowance for such possible lack of evidence does not however mean that unsupported

16 Under the 1951 Convention and the 1967 Protocol relating to the status of refugees-reissued, Geneva
2011.

statements must necessarily be accepted as true if they are inconsistent with the general account
put forward by the applicant.’

[75] Significantly, for present purposes, paragraphs 198 and 199 of the Handbook
read as follows:
‘198. A person who because of his experience, was in fear of the authorities in his own country
may still feel apprehensive vis- ́a -vis any authority. He may therefore be afraid to speak freely
and give a full and accurate account of his case
199. While an initial interview should normally suffice to bring an applicant’s story to light, it may
be necessary for the examiner to clarify any apparent inconsistencies and to resolve any
contradictions in a further interview, and to find an explanation for any misrepresentation or
concealment of material facts. Untrue statements by themselves are not a reason for refusal of
refugee status and it is the examiner’s responsibility to evaluate such statements in the light of all
the circumstances of the case.’

[76] As can be seen, and as recognised in the statutory scheme, prior to amendment,
the refugee status determination process was an inquisitorial and facilitative one. To this
end, the RSDOs and the RAB failed to fulfil their statutory and Constitutional obligations.
The RAB ignored the statutory construct and the principles enunciated by our courts and
the dictates of the UNHCR Handbook.

[77] Section 24 presently provides that the RSDOs must, in dealing with an
application, bear in mind the provisions of the Promotion of Administrative Justice Act 3
of 2000, and ensure that an applicant fully understands the procedures, her or his
responsibilities, and the evidence presented and may consult the UNCHR representative
or invite such representative to provide information concerning the application.

[78] Regulation 8 of the presently applicable regulations states that an applicant must
in the prescribed form indicate a proficiency language of choice and that all information
or any documentation submitted together with the application is binding on the applicant
and may not be amended.

[79] Regulation 14(5) of the present regulations provides that during an interview with
an asylum seeker an RSDO may require any further information, evidence, clarification,
or corroboration from the asylum seeker and require further information, evidence,
clarification or corroboration from any other relevant person, body, or source. Regulation
14(6) provides that the RSDO must test any claim made by an applicant against such
information, documents or evidence that is at her or his disposal. It permits the RSDO to
obtain legal advice, where necessary. The RSDO may consult decisions of the relevant
Standing Committee and the Refugee Appeals Authority.

[80] As can be seen, the architecture of the Act and the Regulations, as presently
framed, do not militate against the applicable paragraphs of the Handbook or the
decisions of our courts referred to above. On the contrary they are as insistent, if not more
so, that the principles set out above must be followed and applied. The obligation,
presently, on the part of the RSDO, to observe the provisions of PAJA confirms that the
Refugee Reception Officers, the RSDOs and the Appeals Authority must be scrupulous
in observing a fair procedure, the first part of which is to assist an asylum seeker at the
outset and then to assist in gathering evidence to enable as full a picture as possible on
which to predicate a decision. That was the position before the amendments to the Act
were affected and the Regulations substituted. It has not changed.

[81] While the high court was correct about an asylum seeker having to ultimately
show that she or he meets the statutory standard, an aspect which I will later in this
judgment explore further, it erred in holding that the RAB was confined to the record
before it and to the evidence thus presented. In Refugee Appeal Board v Mukungubila at
para 34, Maya P said the following:
‘Of further critical importance is the fact that the RAB is vested with appellate jurisdiction in the
wide sense. Thus, it is in the same position as the RSDO and is not bound to decide the merits
of the appeal within the confines of the latter’s record. It is at large to make its own enquiries and
even gather evidence, if necessary. This is so because s 26(3) of the Refugees Act specifically
entitles it, inter alia, to invite the United Nations High Commissioner for Refugees to make oral or
written submissions; request the attendance of any person who, in its opinion, is in a position to
provide it with relevant information; of its own accord make further enquiries or investigation and

request the applicant to appear before it and to provide any such other information as it may deem
necessary.’17

[82] Counsel on behalf of the respondents did not take issue with this statement of the
law. He merely submitted that the obligation on the part of a decision maker to be of
assistance was only triggered when the information supplied by an applicant was such
that it merited further enquiry and that in the present case, the basic information supplied
was so poor that no assistance or enquiry was merited. That submission is without
foundation. The high court’s own recital of what served before the RSDO and the RAB
indicates that there was indeed a basis for further enquiry and scrutiny. That information,
it will be recalled was the material on which the RSDO and the RAB purported to make
credibility findings. It must be borne in mind that the statutory scheme set out above, the
decisions of our courts and international best practice as reflected in the Handbook,
consonant with our Constitutional values, all dictate that an asylum seeker should be
assisted to present as full a picture as the circumstances permit. The high court ought to
have concluded that the RSDOs and the RAB failed in this fundamental duty. If either or
both had complied with their duties a more detailed picture might well have emerged. The
details presented to the high court were, as pointed out earlier, not before the RAB.

Failure by the RAB to consider the applicability of s 3(b) of the Act
[83] Furthermore, it is abundantly clear that the appellants are correct in their
submissions, that neither the RSDO nor the RAB considered the application of s 3(b) of
the Act. Even on the most basic information supplied by the asylum seekers to the RSDOs
and the RAB, a case was made for a consideration of whether there were events in
Somalia ‘seriously disturbing or disrupting public order in either in part or the whole . . .
country’, compelling the eight asylum seekers to seek refuge elsewhere. At the very least
it merited further scrutiny and the obtaining of further information and evidence. It is
apparent that the decisions reached by the RSDOs and the RAB were limited to a
consideration of the application of s 3(a) of the Act and that any reference to the safety
situation in Somalia was coincidental or related to the application by them of s 3(a) of the

17 Refugee Appeal Board v Mukungubila [2018] ZASCA 191; 2019 (3) SA 141 (SCA).

Act. There is force in the submission on behalf of the appellants, referred to earlier in this
judgment, that the decisions appear in the form of a template followed by the decision
makers and that they even contain the same spelling and grammatical errors. Instead of
blaming the eight asylum seekers for seeking a blanket approach, there should be
introspection on the part of the respondents as to whether they could not justifiably be
accused of a blanket obstructive approach. The high court erred in concluding that the
application of s 3 (b) of the Act was considered by the RAB.

Narrow view of persecution
[84] Moreover, the appellants also justifiably complained that the RSDOs and the RAB
took an impermissibly narrow view of persecution when it considered the applications for
refugee status. As shown above, in five of the decisions, the RAB asserted that the
appellants before it needed to show that they were persecuted for political reasons.
Section 3(a) provides that refugee status may be afforded to any person who has well-
founded fear of persecution on wider grounds, namely, ‘by reason of his or her race, tribe,
religion, nationality, political opinion or membership of a political social group’. This too,
ought to have been recognised by the high court. The appellants submitted that, in any
event, many of them met even the narrow criteria applied by the RSDOs and the RAB,
especially those who referred to attempted recruitment by Al-Shabaab.

[85] The appellants pointed out that the 2010 UNHCR guidelines confirmed that fear
of recruitment or retaliation from Al-Shabaab for failing to join is indeed a form of
persecution. That fear was certainly expressed by some of the eight asylum seekers. It
was simply afforded no validity at all by the RAB. Furthermore, the RAB adopted the
attitude that threats to family and friends do not qualify as fear of persecution. The
UNHCR Handbook, at para 43, makes it clear that those claims had to be considered in
determining whether an asylum seeker had a well-founded fear that he or she will sooner
or later become a victim of persecution. In the present instance they were not considered.

Failure to apply the audi principle
[86] There is also substance to the complaint by the appellants that the eight asylum
seekers were not afforded an opportunity to respond to that which the decision makers

considered adverse to their case. Fundamental fairness dictates that such an opportunity
should be afforded to an asylum seeker. They need to know the substance of alleged
adverse information and provided an opportunity to controvert it.18 The high court had
held that there was no need for the RAB to confront the asylum seekers with country of
origin information, as they had failed on their own, to come up with substantive bases
justifying the grant of refugee status. Besides the error of that assessment due to a failure
to obtain further information and evidence, it also flies in the face of the decision of the
Constitutional Court in Gavric, at paras 79-80, and against a principle of long-standing.
The Constitutional Court in Gavric stated the following:
‘[A] person can only be said to have a fair and meaningful opportunity to make representations if
the person knows the substance of the case against her. This is so because a person affected
usually cannot make worthwhile representations without knowing what factors may weigh against
her interests. This is in accordance with the maxim audi alteram partem (hear the other side),
which is a fundamental principle of administrative justice and a component of the right to just
administrative action contained in section 33 of the Constitution.
In order to give effect to the right to a fair hearing an interested party must be placed in a position
to present and controvert evidence in a meaningful way. In Foulds, Streicher J held that a decision
maker was under an obligation to disclose adverse information and adverse policy considerations,
and an affected person an opportunity to respond thereto. If an administrator is minded to reject
the explanations of an interested party, she should at least inform the party why she is so minded,
and afford that party the opportunity to overcome her doubts.’

Interpreters
[87] Insofar as the appellants’ complaint against the failure to provide interpreters is
concerned, the position is complicated in that the statutory obligation to provide
interpreters is restricted to where it is reasonably practicable to do so. And the position is
further complicated when an asylum seeker arrives with an interpreter in tow, leaving the
RSDO or the RAB in an invidious position. In my view, the statutory obligations, the
decisions of our courts, and international best practice, make it clear that the decision-
maker should be attuned to ensuring that there is effective communication and that
effective assistance in rendered. This is exemplified by the new statutory requirement,

18 See Gavric fn 18 above paras 79-80 and AOL v Minister of Home Affairs 2006 (2) SA 8 (D) para 13.

referred to earlier, that care should be taken, with reference to PAJA, to ensure that an
applicant for refugee status fully understands his or her rights and obligations and the
evidence presented. This was essentially so even prior to the amendment.

Onus, credibility, and adjudication
[88] It was submitted on behalf of the appellants with, reference, inter alia, to FNM v
Refugee Appeal Board (FNM),19 that there is a shared burden of proof in relation to
meeting the requirements for refugee status, between the applicant and the decision
maker, which, it will be recalled, was rejected by Mlambo JP. FNM, in dealing with the
burden of proof, relied on Tantoush v Refugee Appeal Board and Others (Tantoush).20 At
para 48 of FNM, the following appears:
‘In summarising the nature of the burden of proof in its decision, the RAB simply stated that the
burden rested on the applicant. It made no reference to the required inquisitorial and facilitative
approach. Nor did it refer to the lower standard of proof that applies or the requirement of a liberal
application of the benefit of doubt principle. No reference was made to its powers under s 26. Nor
were any used.’

[89] In Tantoush, the court held, with reference to a case decided in the United States
of America, namely, Immigration and Naturalization Service v Cardozo Tonseca,21 that in
relation to determining qualification for refugee status – in the case before it in relation to
persecution – the test is ‘a reasonable possibility of persecution’ and that the ordinary civil
standard of proof is too onerous. In this regard, reliance was also placed on Fang v
Refugee Appeal Board and Others22and Van Garderen NO v Refugee Appeal Board and
Others (Van Garderen).23 In Van Garderen, the court stated the following:
‘In my view simply referring to the normal civil standard, the RAB imposed too onerous a burden
of proof. It is clear . . . that allowance must be made for the difficulties that an expatriate applicant
may have to produce proof. It is also clear that there is a duty on the examiner himself to gather
evidence.’
Later, in Van Garderen, the following appears:

19 FNM v Refugee Appeal Board 2019 (1) SA 468 (GP).
20 Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T)
21 Immigration and Naturalization Service v Cardozo Tonseca 480 US 421 (1987) at 440.
22 Fang v Refugee Appeal Board and Others 2007 (2) SA 447 (T).
23 Van Garderen NO v Refugee Appeal Board and Others (TPD case no 30720/2006 19 June 2007).

‘All this confirmed my view that the normal onus in civil proceedings is inappropriate in refugee
cases. The enquiry has an inquisitorial element. The burden is mitigated by a lower standard of
proof and a liberal application of the benefit of doubt principle.’

[90] It must be said that a careful reading of the judgment of Cardozo Tonseca shows
that the court did not contrast the ordinary civil standard of proof with the standard to be
applied in general in refugee cases. It in fact contrasted two distinct American statutory
standards, namely, the standard to meet the requirements for asylum, on the one hand,
and the standard to successfully resist deportation, on the other. The analysis of that case
in Tantoush is thus, strictly speaking, not correct.

[91] Even though Tantoush and some of the allied cases and the submissions on
behalf of the appellants, referred to in para 74 above, all appear to confuse the duty
imposed on the decision maker to assist in gathering evidence and information before an
assessment is made with the question of the onus, they are unassailably correct that a
duty rests on a decision-maker or examiner to be of assistance to an applicant for asylum
status, as envisaged in the UNHCR Handbook, in presenting as full a case as possible
before a determination on refugee status is made. This, as discussed above, is borne out
by the applicable statutory provisions, reinforced by the decisions of our courts on what
a fair procedure should entail, and on international best practice, reflected in the UNHCR
Handbook.

[92] The UNHCR Handbook, not unsurprisingly, accepts that, in principle, in meeting
the standard for refugee status an applicant bears the burden of proof. That, however,
does not mean the standard we would conventionally apply in civil cases, namely that
he/she who asserts an entitlement must prove it on a balance of probabilities, is without
more, to be applied in refugee cases. In this regard, the UNHCR Handbook, consonant
with our Constitutional values, is helpful. As indicated in para 196 of the UNHCR
Handbook, referred to above, because of the peculiar situation that refugees find
themselves in, corroborative documentation or evidence might not be available and that
this factor should be considered. In addition, in paragraph 197 of the UNHCR Handbook,
it is postulated that the requirement of evidence ‘should thus not be too strictly applied’.

A decision-maker is also enjoined in terms of paragraph 198 of the UNHCR Handbook to
consider that an applicant for refugee status, given what he or she might have been
subjected to, might very well be reluctant to speak freely. The inquisitorial and facilitative
nature of the proceedings, statutorily dictated, means that an assessment to determine
an entitlement to refugee status is more flexible than would otherwise be the case. Simply
put, it is for the applicant for refugee status to show that he or she meets the requirements
for refugee status, but in considering the application a decision maker must take the
aforesaid factors into account. So too, in assessing credibility, these factors must be
considered, against the totality of the evidence and information obtained and presented.
It is thus a more flexible yardstick.

Substitution order not warranted
[93] It is now necessary to deal with the prayer by the appellants that this Court, after
setting aside the order of the RAB, should, instead of remitting the matter for
reconsideration, itself decide the applications for refugee status. This submission has a
fundamental flaw. The appellants themselves contend that the RSDO and the RAB ought
to have engaged in further evidence and information gathering. Part of that process would
involve engaging, inter alia, with specialist agencies such as the UNCHR. It is clear from
the submissions by the appellants themselves that the full spectrum of evidence and
information, upon which such a decision can be predicated, is lacking. Moreover, the
information supplied by the appellants in their founding affidavit is now outdated, not least
because of the long time-lag before the judgment was delivered. As things presently
stand, we have no information on record on what the current situation is in Somalia. It
must also be emphasised that courts adhere to the doctrine of the separation of powers
and are cautious not to trespass on the terrain of other arms of State, not least of all
because the administrative functionaries and bodies vested with the power to make
decisions are expected to have the experience and specialist knowledge pertaining to
their areas of operation and the necessary resources to enable them to perform their
functions and execute their duties.24 It is only in exceptional cases that a court will

24 See Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others [2004] ZACC
15; 2004 (4) SA 490 (CC); 2004(7) BCLR 687 (CC); Makungubila fn 25 above at para 31, Logbro Properties

exercise a power of substitution and will only do so when it is in as good a position as an
administrator to make such a decision and the decision by the administrator is a foregone
conclusion.25 For the reasons aforesaid, this is not a case in which a substitution order is
justified.

Declaratory orders, structural interdict and those not presaged in the notice of
motion not justified
[94] In light of what is set out above the range of declaratory orders sought by the
appellants in paragraph 5 is unnecessary. That takes me to the structural interdict sought
in paragraph 6 of the notice of motion, set out in para 4 above. It will be recalled that the
appellants require the DG and the Minister to investigate and identify the causes of the
repeated errors in decision making by the RAB and to develop a plan, in consultation with
the first appellant and other interested parties, to address the causes of the repeated
errors and to report to this Court, on affidavit within a specified timeline, on its findings
and the plans it developed.

[95] The statutory re-modelling referred to earlier in this judgment, namely, the
amendments to the Act and the new regulations, have overtaken the relief sought. The
legislature has seen fit to replace the RAB with the RAA and has prescribed legal
qualifications for its chairperson and for such members as the Minister may determine,
having regard to the volume of work it has to perform.26 Furthermore, an appeal may, in
terms of s 8C of the Act, unlike in the past, be determined by a single member or such
members as the RAA may deem necessary. The amendments and the accompanying
regulations have made it clear that PAJA obligations must be complied with and that the
rights of applicants must be respected. It sets out clear obligations resting on an RRO, an
RSDO and the RAA, leading up to and including the decision, granting, or refusing an
application for refugee status. The Act and the regulations installed a new RAA appeal
structure, with qualified persons who, at least notionally ought to be better equipped to

CC v Bedderson NO and Others [2002] ZASCA 135, [2003] 1 All SA 424 (SCA) para 21, Gauteng Gambling
Board v Silverstar Development Ltd and Others (80/2004) [2005] ZASCA 19 para 29.
25 See Trencon Construction (Pty) Ltd v Industrial Development Corporation of South Africa Ltd and Another
[2015] ZACC 22; 2015 (5) SA 245 (CC); (2015 (10) BCLR 1199 para 47.
26 See s 8B(1) of the Act.

see to it that the statutory scheme, which is clear and insistent about the relevant
functionaries having to observe the rights of applicants for refugee status, is properly
applied.

[96] The amendments also appear to confront the high volumes of work and backlog,
by allowing individual members of the RAA to hear and determine appeals. The first
appellant and those whose interests it strives to advance and protect would be better
served by studying how the new structure operates and how the Act is presently being
applied and whether there is adherence to its core principles and then to consider whether
an approach to court is warranted. In any event, although there appears to be some force
in the submissions that at the time the eight asylum seekers applied there was an
obdurate rigidity and perhaps even an obstructiveness on the part of decision-makers
and that the decisions evinced a pattern of disregard for fundamental principles, it is also
true that what we have before us are the particulars of the cases of the eight asylum
seekers and the decisions related to them. In these circumstances, it is somewhat difficult
to direct the investigation sought so that an outcome is effective. More importantly, the
factors set out earlier in this paragraph, militate against the structural interdict sought by
the appellants.

[97] There is one other aspect that requires brief attention. Though not presaged in
the notice of motion the appellants, before us, sought alternative relief specified in an
annexure to their heads of argument. This included, in the event that we were disinclined
to make a substitution order, an order remitting the matter back to the high court and
providing for an exchange of further affidavits to deal with, inter alia, recent developments
that might affect an order of substitution by the high court. The appellants also sought
further declaratory orders which would compel the DG and the Minister to provide the
high court with details of the present membership of the RAA; the current backlog and the
approach that the RAA intends to take in relation to that backlog; the steps the RAA
envisages in relation to ensure that past errors do not re-occur; and the steps the DG and
the Minister will take to support the RAA. First, it is unfair and unprecedented for a litigant
to seek extensive substantive relief not foreshadowed in the notice of motion, especially

when what is sought is not dealt with on affidavit, thus not providing an opponent an
opportunity to deal with it. It is simply not relief that I am willing to grant.

[98] I understand the frustration of the eight asylum seekers and the prejudice caused
by the years of waiting for their status to be resolved. It appears to me to be fair, after
setting aside the decisions refusing refugee status, to order the RAA to hear the appeals
afresh and to complete the process and to arrive at decisions, in line with the principles
set out above, within a relatively short time frame. The appellants accepted that the new
appeals fell to be dealt with in terms of the Act as amended read with the new regulations.
The transitional provisions brought about by the amendments to the Act dictate this.27

[99] The following order is made:
The appeal is upheld with costs, including the costs of two counsel.
The order of the high court is set aside and substituted as follows:
‘1.1
The applicants’ delay bringing the review of the decisions by the Refugee Appeal
Board outside the 180 day time limit prescribed in the Promotion of Administrative
Justice Act 3 of 2000 is condoned.
1.2
The following decisions of the Refugee Appeal Board (“RAB”) are reviewed and
set aside:
(a) Appeal number 2923/14 of 14 October 2014, dismissing the appeal
of Mr Hassan Abdinasir Osman.
(b) Appeal number 3459/14 of 1 December 2014, dismissing the appeal
of Mr Ali Jamac Khayre.
(c) Appeal number 1212/14 of 21 November 2014, dismissing the appeal
of Mr Abdulkadir Mohamed Omar.
(d) Appeal number 3848/14 of 2 March 2015, dismissing the appeal of
Mr Abdirahman Ali Mahamed.
(e) Appeal number 2683/14 of 28 November 2014, dismissing the appeal
of Mr Mohomed Ahmed.

27 See s 31 of the Act.

(f) Appeal number 3455/14 of 14 October 2014, dismissing the appeal
of Mr Mohamed Mahmud Osman.
(g) Appeal number 538/13 of 26 March 2014, dismissing the appeal of
Mrs Maryama Muhumed Kahin.
(h) Appeal number 1790/13 of 22 May 2015, dismissing the appeal of Mr
Abdullahi Bashir Hassan.
1.3
The 2nd to 9th applicants’ appeals are remitted to the Refugee Appeals Authority
for hearings afresh, with hearings to commence not later than Monday 4 October
2021 and decisions to be rendered no later than Friday 5 November 2021.
1.4
The respondents are ordered to pay the appellants’ costs, including the costs of
two counsel, jointly and severally, the one paying the other to be absolved.’
The hearings and the adjudication of the appeals referred to in the substituted
order are to be conducted in terms of the principles set out in paras 71 to 92 of
this judgment under the various subheadings.

__________________________
M S NAVSA
Acting Deputy President

Appearances:

For appellants:

N C Ferreira appearing with C McConnachie
Instructed by:
Lawyers for Human Rights, Johannesburg Law
Clinic, Johannesburg

Webbers, Bloemfontein

For respondents:

W Mokhare SC and L Mboweni
Instructed by:

State Attorney, Pretoria

State Attorney, Bloemfontein.

THE 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:

# SEPTEMBER 2021
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not form part of
the judgments of the Supreme Court of Appeal
Somali Association of South Africa and Others v The Refugee Appeal Board and Others (Case
no 585/2020) [2021] ZASCA 124 (23 September 2021)
Today the Supreme Court of Appeal (SCA) handed down judgment upholding, with costs, an appeal
against a decision of the Gauteng Division of the High Court, Pretoria (the high court).
This is an appeal, against a decision of the high court, dismissing an application by the first to ninth
appellants, asylum seekers who allegedly fled Somalia due to civil war, for an order reviewing and
setting aside decisions of the Refugee Appeal Board (the RAB). The RAB had dismissed appeals by
the second to ninth appellants (the eight asylum seekers) against decisions of Refugee Status Officers.
The SCA accepted that there is a legitimate State interest and concern to ensure that refugee status is
granted only to those who qualify, to disqualify unfounded applications and to provide for the cessation
of refugee status. It warned that the inclination to be skeptical in relation to applications for refugee
status should be tempered by the gist of the following two quotes:
‘Migrants and refugees are not pawns on the chessboard of humanity. They are children, women and
men who leave or who are forced to leave their homes for various reasons, who share a legitimate
desire for knowing and having, but above all for being more.’1
‘Refugees are mothers, fathers, sisters, brothers, children, with the same hopes and ambitions as us –
except that a twist of fate has bound their lives to a global refugee crisis on an unprecedented scale.’2
There were four issues considered in this appeal. First, whether the RAB misinterpreted and misapplied
section 3 of the Refugees Act 130 of 1998 (the Act). Second, whether the RAB erred in relation to the
burden of proof. Third, whether the RAB adopted the wrong approach to credibility findings. Fourth,
whether the RAB’s decisions breached the principle of audi alteram partem and therefore, whether the
RAB decisions were all procedurally unfair.
On the issue of whether the incorrect test was applied, the appellants contended that s 3 of the Act
makes it clear that persecution is not the sole criterion for the grant of refugee status. Furthermore, the
appellants contended that the RAB unjustifiably limited itself to considering whether the eight asylum
seekers fled Somalia on the basis that they were persecuted on grounds of political opinion. In this
regard, the appellants complained that the RSDOs and the RAB took a narrow view of persecution
when it considered the applications for refugee status.

1 Pope Francis ‘Migrants and Refugees: Towards a Better World’ (2014), complete speech available
from www.vatican.va.
2 Khaled Hosseini, quote available from: www.unhcr.org.

On the issue relating to the burden of proof, the RAB was accused of wrongly placing the burden of
proof, in relation to satisfying the requirements for refugee status, exclusively and unfairly on the
shoulders of the eight asylum seekers. In this regard, it was contended that our courts have endorsed
the concept of a ‘shared burden, which places a duty on a decision-maker to adopt an inquisitorial and
proactive approach in evidence gathering’.
A third and further ground of review was that the RAB had adopted the wrong approach in assessing
the credibility of the eight asylum seekers and over-emphasised its importance. On the issue of
procedural unfairness, the appellant contended that there was no indication that prejudicial country of
origin information was placed before the eight asylum seekers to enable them to contest it. The
appellants also sought a structural interdict, based on what they considered to be sufficient proof of
systemic deficiencies in the decision-making processes of the RAB.
The SCA held that the obligation, presently, on the part of the RSDO, to observe the provisions of PAJA
confirms that the Refugee Reception Officers, the RSDOs and the Appeals Authority must be
scrupulous in observing a fair procedure, the first part of which is to assist an asylum seeker at the
outset and then to assist in gathering evidence to enable as full a picture as possible, on which to
predicate a decision. In this regard, the SCA held that the statutory scheme, the decisions of our courts
and international best practice as reflected in the Handbook, consonant with our Constitutional values,
all dictate that an asylum seeker should be assisted to present as full a picture as the circumstances
permit. On this score, the SCA held that the RAB had failed in its duty to assist the asylum seekers to
obtain relevant information and evidence on which to predicate a decision for refugee status.
Furthermore, the SCA held that the appellants also justifiably complained that the RSDOs and the RAB
took an impermissibly narrow view of persecution when it considered the applications for refugee status.
The SCA held that s 3(a) provides that refugee status may be afforded to any person who has a well-
founded fear of persecution on wider grounds, namely, ‘by reason of his or her race, tribe, religion,
nationality, political opinion or membership of a political social group’. This too, ought to have been
recognised by the high court. The SCA held further that the RSDO and the RAB failed to consider the
applicability of s 3(b) of the Act, which provides for refugee status on the grounds of ‘seriously disturbing
or disrupting public order in either in part or the whole . . . country’.
On the issue of the RAB’s failure to apply the principle of audi alteram partem, the SCA held that the
eight asylum seekers were not afforded an opportunity to respond to that which the decision makers
considered adverse to their case. Fundamental fairness dictates that such an opportunity should be
afforded to an asylum seeker. They need to know the substance of alleged adverse information and
provided an opportunity to controvert it.
On the issue of a shared burden of proof, the SCA held that The UNHCR Handbook, not unsurprisingly,
accepts that, in principle, in meeting the standard for refugee status an applicant bears the burden of
proof. That, however, does not mean the standard we would conventionally apply in civil cases, namely
that he/she who asserts an entitlement must prove it on a balance of probabilities, is without more, to
be applied in refugee cases. In this regard, the UNHCR Handbook, consonant with our Constitutional
values, is helpful. As a result of the peculiar situation that refugees find themselves in, corroborative
documentation or evidence might not be available and that this factor should be considered. In addition,
in paragraph 197 of the UNHCR Handbook, it is postulated that the requirement of evidence ‘should
thus not be too strictly applied’. A decision-maker is also enjoined in terms of paragraph 198 of the
UNHCR Handbook to consider that an applicant for refugee status, given what he or she might have
been subjected to, might very well be reluctant to speak freely. The inquisitorial and facilitative nature
of the proceedings, statutorily dictated, means that an assessment to determine an entitlement to
refugee status is more flexible than would otherwise be the case. So too, in assessing credibility, these
factors must be considered, against the totality of the evidence and information obtained and presented.
It is thus a more flexible yardstick.
The SCA reaffirmed that an appeal before the RAB is an appeal in the wide sense and that the high
court ought not to have held that the RAB was bound to the record placed before it.

~~~~ends~~~~