An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
The High Court in Port Elizabeth today handed down a judgment in which it declared the Department of Home Affairs’ decision to close the Port Elizabeth Refugee Reception Office to be unlawful and ordered that it be re-opened and maintained for all refugees and asylum seekers, including new applicants for asylum.
On 20 October 2011, Home Affairs publicly announced that the PE Refugee Reception Office would be closed to new applications the following day and would work towards finalising all outstanding claims before 31 March 2012. Recognised refugees were told that they would have to transfer their files to another refugee reception office in order to access refugee services through the Department.
This abrupt decision caused severe prejudice to the asylum seeker and refugee community considering that the closest office in Cape Town is over 700km away. Many new arrivals were left stranded without documentation and at risk of arrest and deportation. The statistics from the Department indicated that last year 22 000 were assisted at the PE office. Many asylum seekers, particularly from war-ravaged Somalia, choose the Nelson Mandela Bay area because of a long-standing refugee community which supports new asylum applicants who have no access to state assistance during the application process.
The challenge to the closure was brought by the Eastern Cape branch of the Somali Association of South Africa (SASA) and the Project for Conflict Resolution and Development (PCRD) with Lawyers for Human Rights and the Refugee Rights Centre at the Nelson Mandela Metropolitan University as their attorneys.
The court found that a core function of a refugee reception office is to allow new arrivals to apply for asylum. If that function is removed, the office has been de-established as a refugee reception office. The Refugees Act then requires consultation with the Standing Committee for Refugee Affairs. The Court was concerned that the department had not consulted with the Standing Committee despite clear obligations to do so in terms of the Act.
“Today’s decision is a vindication that the Department cannot act outside of the law,” said Linton Harmse, Director of the Refugee Rights Centre. “The constitutional right to just administrative action applies equally to all, including foreign nationals.”
This decision follows a similar decision in the North Gauteng High Court which found that the decision to close the refugee reception office in Johannesburg was also unlawful and ordered the Director-General of Home Affairs to engage in a public consultation process and reconsider his decision to close that office. To date, no efforts have been made to engage the public or render the decision lawful.
In light of these judgments and the general failure of the department to act lawfully in terms of rendering services to the refugee community, we call on the Minister of Home Affairs to intervene on an urgent basis to prevent further prejudicial and illegal actions on the part of the department with regards to the operations of the country’s refugee reception offices.
We further call on the Minister and the Director-General to engage with the public, including stakeholders and members of the asylum seeker and refugee community, to discuss the future of refugee protection in South Africa. Such engagement will prevent further embarrassment of South Africa on the international stage and ensure that South Africa’s reputation as a country based on human rights and the rule of law is protected.
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