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.
Much has been said about the decision by the Canadian Refugee Board to grant refugee status to ex water sprinkler salesman, Brandon Huntley. But I think I might have another question to ask about this sorry affair. Would the Refugee Board have come to the decision it did if it allowed for a full hearing with an array of witnesses from the South African government? Would it have made a difference if all witnesses were subjected to cross examination by Senior Council?
In other words, I am wondering whether those who applauded the utterly irrational decision of the JSC to drop the charges against John Hlophe and the Constitutional Court, would not have had a different view if the decision was not about Hlophe but about Huntley? Can it be that the Canadian Refugee Board and the JSC have more in common than some would like to admit?
If the answer is yes, would the same people who are (rightly) cheering on the review of the irrational decision of the Canadian Refugee Board also throw their weight behind the decision of FUL to review the JSC decision? Being principled and consistent, I am sure they all will.
Last year I visited Montreal in Canada, a pleasant enough place with wide streets, a good public transport system and a thriving gay village. The newspapers were dreadfully boring, the people friendly and open, but the society somehow lacked the edge and vibrancy of Johannesburg, Cape Town, Dakar, Kampala or Cairo. I guess if you are a not-too-bright white-boy-slacker from Mowbray in Cape Town, living in Canada must seem like a heavenly experience – a bit like being Judge President of the Cape High Court.
No wonder old Huntley tried to pull the wool over the eyes of those gullible Refugee Board members.
Canadian law states that one can be granted refugee status if one has a well-founded fear of being persecuted in your home country because of your race, religion, nationality, membership in a particular social group, or political opinion and you cannot return or do not want to return to your country because of your fear and the conditions there.
To be a person in need of protection, you must be someone who, if you had to return to your home country, would more likely than not face: torture, a risk to your life, or a risk of cruel and unusual treatment or punishment. And if you face a risk to your life, or a risk of cruel and unusual treatment or punishment, you must show all of the following: You are not able to get protection from the government in your country. The risk affects you personally, and is not faced generally by other people in your country. For example, the risk is not the result of a famine or civil war. The risk is not the result of government laws, such as punishment for committing a crime, unless these laws violate international standards. The risk is not caused by the fact that you cannot get adequate medical care in your country.
To be granted refugee status in Canada you also need to show that there is no place in your country where you would be able to go and be safe from persecution or from the risk that you face. It is up to you to convince the IRB that you are a Convention refugee or a person in need of protection. You do this by telling your story to the IRB and providing any documents that support your case. For example, you might provide identity documents, police reports, medical records, or other documents that help show that your story is true. You might also provide documents, such as human rights reports or newspapers, that show what is happening in your country.
But apparently there is no need for a full hearing with cross examination and no opportunity for anyone from your home country to provide evidence that might contradict your story.
Huntley is therefore very lucky. Imagine the Refugee Board had to have a full hearing and the South African government could present evidence – tested under cross examination – about the situation in South Africa. Hell, the South African government could merely have asked a representative of Pam Golding Properties to go and testify on their behalf. Onthe Pam Golding’s website, Huntley’s old suburd is described as follows:
Mowbray is known for its convenient locality to all of Cape Town’s amenities, particularly exclusive schools, the University of Cape Town, the world-famous Groote Schuur Hospital and sporting facilities, such as the Rondebosch Golf Course and Newlands Rugby and Cricket grounds. Boasting large family homes, when you buy a house in the Southern Suburbs, you are not only buying a home, but rather a lifestyle of carefree independence for your children.
This fascinating historical suburb stretches from Mostert’s Mill, which was built on the farm Welgelegen in about 1796, to the Rondebosch Common and is situated between the N2 highway and Rosebank. There are at least three historic homes; Westoe, Moolenvleit and Koornhoop situated along the Liesbeek River and these are all well maintained. Mowbray has a real mix of cultures from the thriving African marketing around the taxi/bus interchange to the quiet residential areas of Little Mowbray, the Village and Upper Mowbray.
One should know a decision is irrational when the promotional material of an estate agent sounds more plausible than the findings you have come to. A bit like the JSC really. As someone who used to live in Mowbray I am obviously incensed by the Canadian Refugee Board decision. After all, Mowbray can be scary – but usually only when you do not like private schools, do not play golf or happen to be black.
Of course, consistency and principle are not the strong points of those who wish to sweep the Hlophe saga under the carpet. What a pity that is.BACK TO TOP