THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case no: 224/2013
Reportable
In the matter between:

THE DIRECTOR-GENERAL:
THE DEPARTMENT OF HOME AFFAIRS
First Appellant
THE MINISTER OF HOME AFFAIRS
Second Appellant
LINDELA DETENTION CENTRE:
THE HEAD OF CENTRE

Third Appellant
and
MUSENA NICOLE DEKOBA

Respondent

Neutral citation: Director-General:
Home
Affairs
v
Dekoba
(224/2013)[2014] ZASCA 71 (28 May 2014)
Coram:
MTHIYANE DP, LEACH and WALLIS JJA, VAN ZYL
and MATHOPO AJJA.
Heard:
22 May 2014
Delivered: 28 May 2014
Summary: Refugee – holder of an asylum seeker permit in terms of
s 22(1) of Refugees Act 130 of 1998 – decision by Refugee Status
Determination Officer in terms of s 24(3)(c) of Refugees Act taken on
appeal to Refugee Appeal Board – refugee attending appeal hearing – her
case not reached and permit extended – decision by Refugee Appeal
Board to dispose of her appeal on the basis that she did not appear a

nullity – refugee retained her status as refugee and her entitlement to a
temporary asylum seeker permit – subsequent arrest and deprivation of
permit invalid – restoration of permit.

ORDER

On appeal from: Western Cape High Court (Ndita J sitting as court of
first instance):
Paragraph 2 of the order of the court below is amended to read as
follows:
‘That First Respondent is hereby directed, upon the Applicant
presenting herself at the Refugee Reception Office in Cape
Town within 30 days of the date of this order being served
upon her, to restore to the Applicant her asylum seeker permit
in accordance with s 22 of the Refugees Act 130 of 1998,
which permit shall remain valid until the hearing and final
determination of her appeal to the Refugee Appeal Board
against the decision by the Refugee Status Determination
Officer rejecting her application for asylum and the final
determination of any further appeal or review of the decision by
the Refugee Appeal Board, whether under the Refugees Act or
the Promotion of Administrative Justice Act 3 of 2000.’
The appeal is otherwise dismissed and the First and Second
Appellants are directed to pay the travel and accommodation
costs of and any out of pocket expenses incurred by the amici
curiae, such expenses to include those incurred in respect of the
attendance of three counsel.

JUDGMENT

Wallis JA (Mthiyane DP, Leach JA and Van Zyl and Mathopo AJJA
concurring)
[1] Ms Dekoba, the respondent, is a Congolese national who, in either
2004 or 2006 (the date is uncertain although it is probably the former
rather than the latter) came to South Africa from the Democratic
Republic of Congo (DRC) as a refugee, seeking asylum. Whilst here she
married another Congolese asylum seeker, like her from Lubumbashi,
and bore a son. Her residence in this country was lawful in terms of an
asylum seeker’s permit issued in terms of s 22 of the Refugees Act 130
of 1998 (the Refugees Act). In circumstances that will be described, that
permit was withdrawn and she was arrested and treated as an illegal
immigrant to be deported in terms of the Immigration Act 13 of 2002
(the Immigration Act). Her deportation was stayed as a result of an
urgent application to the Western Cape High Court and an agreement
between the parties in those proceedings. She was subsequently released
from detention as a result of the institution of the application leading to
these proceedings. The issue in the appeal is whether she is entitled to
have a temporary asylum seeker’s permit issued to her, or perhaps more
accurately restored to her. In the high court Ndita J held that she was.
This appeal is with her leave.

[2] Ms Dekoba’s attorneys have withdrawn and there was initially a
prospect of the appeal being conducted without the benefit of
submissions on her behalf. At the request of the court, Mr Anton Katz SC
of the Cape Bar stepped into the breach and agreed to appear on her

behalf as amicus curiae, which he has done together with Mr Simonsz
and Ms Bizony. We are grateful to them for their assistance and the
detailed and helpful submissions they made to the court.

[3] As already noted it is unclear exactly when Ms Dekoba came to
this country, but on 26 June 2006 she was interviewed by a Refugee
Reception Officer in terms of s 21(2)(c) of the Refugees Act. Thereafter
a Refugee Status Determination Officer rejected her application for
asylum. The reasons for this do not emerge from the record, although, in
view of the course that the matter followed thereafter, it seems likely that
the decision was that the application was unfounded. 1 She appealed
against this decision to the Refugee Appeal Board (the Board)
established in terms of ss 12 to 14 of the Refugees Act and in the
meantime her permit was extended. This case arises from the manner in
which the Board dealt with her appeal. Ms Dekoba contends that she
remains an asylum-seeker entitled to the restoration of her permit and the
protection of the Refugees Act, whereas the first appellant, the Director
General: Home Affairs (the D-G), maintains that she has lost that status
and become an illegal immigrant and is subject to deportation if
representations made on her behalf in terms of the Immigration Act are
unsuccessful.

[4] According to Ms Dekoba the course of events in regard to the
appeal was the following. On 22 January 2009 she received a notice
saying that her appeal would be heard by the Board on 17 February 2009
at a place cryptically described in the notice as ‘Refugee Reception’. At
that time the refugee reception office in Cape Town was situated in

1 Section 24(3)(c) of the Refugees Act.

Airport Industria,2 which is close to Nyanga and in the papers is referred
to as the Nyanga Refugee Centre. She went there on 17 February 2009
together with her husband. She said that an official told them to go
instead to the offices of the Department of Home Affairs in Barrack
Street, Cape Town, which they did. There they waited all day in a queue
but, along with a number of others waiting there for the same purpose,
Ms Dekoba was not called in for her appeal. At the end of the day the
waiting asylum-seekers were told that their appeals would be dealt with
on a later date and in the meantime their permits were extended for three
months and stamped to reflect this. At regular intervals of either three or
six months thereafter she returned to the refugee reception office and her
permit was further extended. This continued for more than two and a half
years after the abortive appeal.

[5] Continuing Ms Dekoba’s narrative of events, on 14 October 2011
she again returned to the refugee reception office, which by this stage
had been moved to Maitland, in order to have her permit further
extended. It was due to expire the following day. Instead the permit was
confiscated and she was arrested as an illegal immigrant. At the same
time she was served with a document reflecting that her appeal had been
dismissed on 4 May 2009 in consequence of her non-appearance at the
appeal hearing. She was initially detained at Maitland Police Station and
thereafter at Pollsmoor Prison. She was released on 2 November 2011
after being given and signing a notice of departure. She did not leave by
the stipulated date of 12 November 2011, as by that date she had lodged
representations to stay in this country in terms of s 8 of the Immigration
Act. Consequently she was re-arrested on 15 November 2011 and taken

2 Intercape Ferreira Mainliner (Pty) Ltd and Others v Minister of Home Affairs and Others 2010 (5)
SA 367 (WCC)

to Lindela Detention Centre in Krugersdorp. That resulted in an urgent
application being launched the following day in which a consent order
was made that she would not be deported pending the outcome of her
representations. It also provided for her to be removed from the detention
centre to a ‘safe house’ and for her to be reunited with her son. Whilst
there, both she and her son fell ill and there were problems with the
quality of the food provided to them. The present application was
launched, as a matter of urgency, on 23 December 2011. An agreement
was then reached that Ms Dekoba would be released pending the
determination of the application.

[6] The facts as set out by and on behalf of Ms Dekoba3 were not
seriously disputed. The deponent to the answering affidavit on behalf of
the appellants one Newton John Booysen, a Chief Control Immigration
Officer in the department of Home Affairs in Maitland, Cape Town, had
no personal dealings with or knowledge of her case. He repeatedly said
that he had no knowledge of the facts as set out by or on behalf of Ms
Dekoba, but then denied them. That was improper, as he advanced no
facts justifying his denials. There was no appreciation on his part that a
deponent, who denies the facts deposed to on oath by witnesses for the
other party, accuses those witnesses of lying and lying on oath is a
serious criminal offence. One expects greater care on the part of a senior
government official when deposing to an affidavit. As it is these denials
can be disregarded.

[7] The case for the appellants hinged around the decision by the
Board reflected in the document handed to Ms Dekoba on the day of her

3 The founding affidavit was deposed to by her husband and, after her release, she deposed to an
affidavit confirming its correctness.

arrest. Based on its contents Mr Booysen contended that there was an
appeal hearing that Ms Dekoba did not attend, notwithstanding having
been given notice to do so. As a result the appeal was disposed of in her
absence. The process of dealing with her application for asylum was
thereby completed and her continued right to an asylum seeker’s permit
had terminated. If she wished to remain in South Africa thereafter her
only course of action was by way of representations to the D-G in terms
of s 8 of the Immigration Act. Those representations had been made and
were under consideration. In the meantime the D-G agreed not to deport
her until the final decision has been made in respect of those
representations. A curious feature of the case is that, notwithstanding the
fact that two and a half years have elapsed since those representations
were lodged with the D-G, he has not as yet made any decision on them.

[8] The immediate problem with this argument, crucial to the
outcome of this appeal, is that it depends entirely upon Ms Dekoba’s
appeal having been disposed of by the Board. But that was inconsistent
with her evidence. If that evidence was truthful then she had not had an
appeal at all. As regards its truth there was no direct evidence tendered to
rebut it. Mr Booysen complained that her factual allegations were
‘extremely vague’ but there was no justification for that complaint. The
immediate and obvious question was whether the Board had conducted
its hearings on 17 February 2009 at the Nyanga Refugee Centre or at the
Barrack Street offices of the Department of Home Affairs. The person to
deal with that was the Board member who had allegedly been responsible
for conducting this appeal, a Mr Damstra. But no affidavit from him was
forthcoming. One would have expected him to be able to produce a diary
or other record of his activities that day and to explain what had been
done in relation to Ms Dekoba’s appeal. He could also have explained

the steps taken to ascertain whether Ms Dekoba was present and whether,
on her alleged non-appearance, enquiries were made of the officials and
time afforded to her against the possibility that she had been delayed or
encountered some unexpected problem. The need for that in the
circumstances that prevailed at the Nyanga Refugee Centre, as described
below, was apparent. Instead the appellants contented themselves with an
affidavit from someone who had no personal knowledge of what had
happened on that day.

[9] It will be recalled that Ms Dekoba said that she and her husband
initially went to the Nyanga Refugee Centre on 17 February 2009 and
were directed to go to the Department’s offices in central Cape Town. Mr
Booysen accepted that the venue for hearing appeals does change from
time to time after notices of appeal have been issued, but said that a
venue would not change on the day of hearing, nor would an appellant be
informed of a change of venue on the day of an appeal. One wonders
how he could be so categorical about this point. The material available
about the situation at the Nyanga Refugee Centre suggests that
circumstances there were such that the need to move appeals to more
acceptable premises might easily have arisen. Those circumstances and
the situation in dealing with refugees in Cape Town have been described
in several judgments of the Western Cape High Court and this Court.4

[10] In Intercape Ferreira5 Rogers AJ referred to a period in January
and February 2008 when asylum seekers and applicants for permits were
bussed from the refugee reception centre, then situated in Customs House

4 Kiliko and Others v Minister of Home Affairs and Others 2006 (4) SA 114 (C); Intercape Ferreira,
supra; 410 Voortrekker Road Property Holdings CC v Minister of Home Affairs and Others [2010] 4
All SA 414 (WCC); Minister of Home Affairs and Others v Scalabrini Centre and Others 2013 (6) SA
421 (SCA).
5 Supra fn 2, paras 30 -32

on the Foreshore to the Department’s Barrack Street offices. That
judgment paints a stark picture of the situation in 2008 and 2009 at the
Nyanga Refugee Centre in the Airport Industria premises. It is one of
massive over-crowding; inadequate capacity to deal with the numbers of
asylum-seekers (some 600 per day on average); noise, filth and crime;
lack of ablution and sanitation facilities; roads blocked by the comings
and goings of taxis and cars, police vehicles and ambulances; extensive
illegal street trading; vehicles and crowds jostling for space on roads and
pavements; and regular outbreaks of crowd violence generating the need
for police intervention, sometimes extreme. These conditions led
Rogers AJ to interdict the Department from continuing to operate the
refugee reception centre at the Airport Industria premises.

[11] These circumstances could have contributed to the situation to
which Ms Dekoba and her husband testified, that the appeal hearing was
redirected to Barrack Street. However, it is unnecessary to speculate
further in that regard because there is one feature of their evidence that
convincingly demonstrates that their version must be truthful. It is their
evidence that on 17 February 2009, at Barrack Street, and on a number of
occasions thereafter prior to 14 October 2011, at either Nyanga Refugee
Centre or Maitland, her permit was renewed. That would mean that on a
minimum of six and a maximum of 11 occasions, depending on whether
the renewals were for three or six month periods, she attended on the
Department’s officials and they renewed her permit without demur. If
she was not telling the truth about this then all that Mr Booysen needed
to do in order to demonstrate her dishonesty was to produce the
confiscated permit. Far from doing that he admitted the renewals of the
permit.

[12] That admission establishes that Ms Dekoba indeed went to Barrack
Street on 17 February 2009. There was absolutely no reason for her to
have done this unless she was told to do so by the Department’s officials.
She knew the Nyanga Refugee Centre and, notwithstanding the cryptic
terms of the notice of appeal, knew that she had to report there for her
appeal hearing. Her record of regularly renewing her permit at the
appropriate place shows that she knew where she had to go in order to
deal with the Department in relation to her asylum application and went
to the correct place whenever necessary. It is inconceivable that on this
day she would have gone to the wrong place for her appeal hearing. It is
even more inconceivable that if she had done so she would have been
permitted to queue there for the whole day and at the end of it have had
her permit renewed. After all the Barrack Street offices were not the
place that dealt with permit renewals.

[13] In those circumstances it is plain that Ms Dekoba did not have the
appeal that she was entitled to. The purported disposition of the appeal
on 4 May 2009 by Mr Damstra was void, because it was based on the
proposition that she had not attended for her appeal hearing. That was not
the case. How Mr Damstra came to produce what purported to be a
record of the appeal and a decision is unexplained. But it matters not.
Appellant’s counsel rightly accepted that if Ms Dekoba did attend her
appeal, but was not called in and the appeal was disposed of on the basis
that she was absent and without hearing her, the purported decision could
not be effective to dispose of the appeal and it remained pending.

[14] That conclusion disposes of the contention that the process under
the Refugees Act was complete after the Board purported to decide the
appeal. It was not. As it was incomplete, Ms Dekoba remained an

applicant for asylum and, in terms of the decisions of this Court in
relation to a number of similar cases,6 she was an asylum seeker and
entitled to an asylum seeker’s permit. She did in fact have one and, as no
hearing of her appeal had occurred prior to her attending at the Refugee
Reception Office in Maitland on 14 October 2011, she was entitled to
have her permit extended until arrangements could be made for her
appeal. Her arrest and the removal of her permit were entirely
unwarranted as was her subsequent treatment.

[15] The proper order in those circumstances was one restoring the
status quo as it existed on 14 October 2011. On that date Ms Dekoba was
an asylum seeker in possession of an asylum seeker’s permit and
awaiting an appeal against the decision by the Refugee Status
Determination Officer in relation to her application for asylum. It was not
appropriate for the court below to order that she be re-issued with a
permit, as she should never have been deprived of one. The proper order,
albeit that its effect would be similar, was that her existing permit be
restored to her and to order that such permit would remain valid while
the appeal process was completed and, depending upon its outcome, any
further proceedings were taken by way of appeal or review, either under
the Refugees Act or in terms of PAJA.7  Counsel were agreed that in the
event of our concluding that Ms Dekoba had been denied an appeal the
order of the court below should be amended to reflect this.

[16] I turn then to the issue of costs. Counsel appeared at the request of
the Court on behalf of Ms Dekoba. Their contribution was extremely
helpful. Mr Katz and Ms Bizony’s expenses were met by the Cape Bar’s

6 Arse v Minister of Home Affairs 2012 (4) SA 544 (SCA); Bula and Others v Minister of Home Affairs
and Others 2012 (4) SA 560 (SCA) and Ersumo v Minister of Home Affairs 2012 (4) SA 581 (SCA).
7 The Promotion of Administrative Justice Act 3 of 2000.

pro bono fund. Mr Simonsz has paid his own expenses. In our view
neither the Cape Bar nor Mr Simonsz should be out of pocket as a result
of counsel assisting the court. It is appropriate in those circumstances to
order the unsuccessful appellants to bear the travelling and
accommodation costs and any out of pocket expenses of the three
counsel who appeared as amici curiae.8

[17] Before ending this judgment it is appropriate to comment briefly
on the course of events in this case. First Ms Dekoba was arrested as an
illegal immigrant at a time when she was in possession of a valid asylum
seeker’s permit that still had a day to run before its expiry. Second, she
was arrested without any investigation of the circumstances arising from
the fact that her permit had been repeatedly extended from 17 February
2009 to 15 October 2011, when the decision by the Board purported to
have been given on 4 May 2009. That cried out for investigation, but
none was undertaken. Third, when her detention and the attempts to
deport her were challenged there was no attempt by the D-G and the
officials of the Department of Home Affairs to place the full facts before
the court through the officials responsible for these events. For example,
one D D Gcuze signed the warrant for her detention, but we have no
affidavit from him or her explaining why it was suddenly decided to
implement the purported decision by the Board. Even had that decision
been valid at the time it was taken, the lengthy delay in implementing it
meant that the situation cried out for a further investigation of Ms
Dekoba’s circumstances and the appropriateness of deporting her. That
could readily have been done without detaining her. After all, the
Department was not dealing with someone who had been seeking to

8 Such an order was made in Oos-Randse Administrasieraad v Rikhoto 1983 (3) SA 595 (A) at 610 and
in Paola v Jeeva NO 2004 (1) SA 396 (SCA) para 27.

evade their scrutiny, but with someone who had been co-operating with
it.

[18] That brings me to the final point. Once it became apparent that Ms
Dekoba claimed not to have been given an appeal hearing, that claim
should have been fully investigated by the Department. It was apparent
from the purported decision by the Board that she had not been heard on
her appeal. Why then did the Department not immediately make
arrangements for her to have the appeal and ensure that she would be
present and appropriately assisted (her grasp of English according to the
affidavits is extremely limited and the lingua franca of the DRC is
French)? Had they done so instead of claiming that her rights had been
exhausted there would have been no need for this litigation and Ms
Dekoba’s refugee status would long since have been resolved. Instead,
over five years after her appeal was due to be heard, like a game of
snakes and ladders, she finds herself back where she was on 17 February
2009, awaiting a hearing of her appeal. In the meantime her son is now
seven years old and presumably should have started his school career.
We do not know the fate of her husband’s application for asylum or their
present circumstances. Indeed we are uncertain of her whereabouts or
when or how she will come to learn of the decision by this Court. All that
could easily have been avoided had the Department’s officials taken a
practical and sensible view of matters instead of engaging in costly and,
as it turns out, fruitless litigation. This is not what we are entitled to
expect from our public servants.

[19] In the result I make the following order:
Paragraph 2 of the order of the court below is amended to read as
follows:

‘That First Respondent is hereby directed, upon the Applicant
presenting herself at the Refugee Reception Office in Cape
Town within 30 days of the date of this order being served
upon her, to restore to the Applicant her asylum seeker permit
in accordance with s 22 of the Refugees Act 130 of 1998,
which permit shall remain valid until the hearing and final
determination of her appeal to the Refugee Appeal Board
against the decision by the Refugee Status Determination
Officer rejecting her application for asylum and the final
determination of any further appeal or review of the decision by
the Refugee Appeal Board, whether under the Refugees Act or
the Promotion of Administrative Justice Act 3 of 2000.’
The appeal is otherwise dismissed and the First and Second
Appellants are directed to pay the travel and accommodation
costs of and any out of pocket expenses incurred by the amici
curiae, such expenses to include those incurred in respect of the
attendance of three counsel.

M J D WALLIS
JUDGE OF APPEAL

Appearances

For appellant:
E A De Villiers-Jansen
Instructed by:
State Attorney
Cape Town and Bloemfontein

For respondent:
Anton Katz SC (with him David Simonsz and
Robin Bizony) as amici curiae.