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.
No one decides to flee his or her country of origin for trivial reasons. Most refugees only seek asylum in a foreign country when they are desperate. But refugees are seldom welcomed with open arms by the government and the people of the country they flee to. As a recent Supreme Court of Appeal (SCA) judgment demonstrates, our government is no exception.
I have not thought about Rèmy for many years. I met him in 1998 or 1999 in The Bronx, a gay bar in Green Point, Cape Town. He was wearing neatly pressed formal pants and formal leather shoes (like an accountant, I thought), and a yellow T-shirt with the picture of a steam locomotive printed on the front below the words “I am a Happy Train”. He wore his braided hair in a short bob and when he smiled the room lit up.
It was after I returned his smile that he came to stand next to me at the bar. “I buy you a Savannah?” he said by way of introduction. (He had a way of asking you a question in the form of a statement). Rèmy was from Bandundu in the Democratic Republic of Congo and had travelled through Angola and Namibia to get to Cape Town, sneaking rides on the back of various trucks and walking the rest of the way. “It took five days,” he said in a matter of fact tone, and flicked his hair out of his face with the back of his left hand.
When the first sounds of Cher’s “Believe” came blasting through the speakers, he took my hand and led me to the small dance floor. We kissed as Cher belted out her hit song: “Do you believe in life after love?/ I can feel something inside me say,/ ‘I really don’t think you’re strong enough.’” After a while he pulled away and looked up at the shirtless young man dancing on the bar counter, flicked the hair out of his face again (something he often did), and traced his fingers over the number “46664” embossed on my blue T-shirt. Then he said, flashing me a flirty smile: “Now five days does not feel so very long.”
Much later, on the mattress in my room in a flat with lime juice coloured walls in Gardens, he reached over me – his slim arm resting momentarily on my naked torso – and took a copy of Gustave Flaubert’s Madame Bovary from a small canvass bag which he had fished out from underneath our discarded clothes on the floor.
He told me that he had been studying to be a teacher when it became necessary to flee the DRC. Literature was his favourite subject. Especially French literature. “It teaches you about people.” He read aloud from Flaubert, the French tripping off his tongue, then translated the passages into English to try and convince me of the beauty of Flaubert’s prose.
“I was going to be so sad, like Emma,” he said, “that is why I had to leave.” (But maybe I made up this last detail in the years since I knew Rèmy, my mind playing a kind of trick on me to enhance the bitter sweet memories I have of the weeks we spent together.) On that first night, Rèmy taught me some French words – “canard” (duck), “malicieux” (mischievous), “le poteau” (penis) – “but don’t use that last word in front of your mother,” he laughed.
When I woke up the next morning, the bed next to me was empty. But I found Rèmy in the kitchen, dressed only in his white underpants, noisily rummaging through the cupboards for a pan. “I make us omelette?” He took the long life milk from the fridge and shook his head in mock horror. “Next time you buy fresh milk?”
Rèmy shared a room with a friend in a house in Hercules Street in Woodstock, and worked as a chef in a Hotel in Sea Point. He would phone me from the public phone on the corner at Albert Road, giving me instructions on what ingredients to buy for the dinners he liked to cook. He loved Italian food and worked his way through the list of traditional pasta recipes. Only once, after I teased him about it, did he prepare Congolese rice and beans (this dish is named “loso na madesu”, Google informs me, but I cannot remember that he ever called it that).
Rèmy told me that he was planning to seek asylum in South Africa and asked me to check whether he qualified. In my office at the University of Western Cape (UWC) I looked up (what was then) the newly passed Refugees Act and discovered that a person qualified for refugee status and could be granted asylum if that person:
owing to a well-founded fear of being persecuted by reason of his or her race, gender, 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.
The Act defines “social group” as including a group of persons of particular gender, sexual orientation, disability, class or caste.
The problem Rèmy faced was that engaging in same sex sexual acts was not a criminal offence in the DRC – although homosexuality was a cultural taboo. Rèmy told me that he had been harassed by the police many times (or maybe I remember this incorrectly and he told me that he was harassed by soldiers) and that he twice had to pay a bribe. A family member had also called him a “sale PD” (dirty faggot) before threatening to kill him. Nevertheless, it was unlikely that officials would find that Rèmy had a well-founded fear of being persecuted for being emotionally and sexually attracted to other men.
When I told this to Rèmy, his eyes widened in shock, and he lightly slapped me on my hand – like a parent reprimanding a young child – before regaining his composure. “Now I am going to cook your favourite. Spaghetti puttanesca.” He flicked his hair in a mock-imperious way and smirked. “Because you are a slut.” (Did I tell him that “putta” was the Italian word for slut?)
Memories of those few weeks when Rèmy and I spent time together flooded back when I read the recent SCA judgment in the case of Scalabrini Centre, Cape Town and Others v Minister of Home Affairs and Others. The Scalabrini Centre had challenged the decision of the (recently suspended) Director General of Home Affairs to permanently close the Cape Town refugee reception office.
In terms of the Refugees Act, an application for asylum must be made in person to a refugee reception officer at any refugee reception office. The refugee reception officer must issue an asylum seeker a permit which allows him or her to stay in the country pending the outcome of the application. This is a drawn-out process and for all practical purposes requires the asylum seeker to live near a refugee reception office or to travel regularly to a town where such an office is situated.
This means that a decision to close the refugee reception office in Cape Town would make it very difficult for asylum seekers to continue living in Cape Town. They would need to apply for refugee status, and later attend a hearing considering their application, at one of the offices located in Musina, Pretoria and Durban. (The Director General had also closed the refugee reception offices at the Crown Mines and in Port Elizabeth, and neither had been reopened despite court orders to do so.)
The SCA held that the decision taken by the Director General to close the Cape Town office was irrational and hence invalid. It ordered the Department to reopen and maintain a fully functional refugee reception office in or around Cape Town.
The SCA advanced several reasons for its decision, but the most telling reason was that the decision was tainted because it was taken with an ulterior purpose. It is a settled principle of our law that acting with an ulterior purpose is in breach of the principle of legality. A decision-maker who uses a power given by statute for a purpose other than that for which it has been given therefore acts contrary to the law.
Section 6 of the Refugees Act requires that the Act be interpreted and applied with reference to international human rights instruments relating to refugees. This includes the United Nations Convention and Protocol Relating to the Status of Refugees which imposes a duty on states to grant to refugees lawfully in its territory, the right to choose their place of residence and move freely within its territory.
The Director General – on behalf of the government – argued that it was necessary to close refugee reception centres in order to control the asylum application process which was being “abused by economic migrants”. The government therefore argued that it was necessary to restrict access to refugee reception centres in urban areas. In effect, the government closed centres in big cities to make it more difficult for asylum seekers to continue living in South Africa.
But the law does not permit the government to take deliberate steps to try and deny asylum seekers access to refugee reception offices. The Department’s attempt to do so therefore constituted the “exercise of a power for an ulterior purpose”, and was also arbitrary.
Regardless of the merits of their application, all asylum seekers are entitled to a… permit which entitles them to live, work, study and receive public healthcare in this country, while their claim for refugee status is being determined.
By closing refugee reception centres in places like Cape Town – where work opportunities, accommodation and public facilities exist at sufficient scale – the Department was in effect trying to make it difficult or even impossible for asylum seekers to obtain permits, and to fulfil all the other requirements to be granted refugee status. While the SCA did not say so, the decision to close the refugee reception centres in places like Cape Town raises a suspicion that the Department was animated by intolerance, fear or hatred towards Africans who had (for some or other reason) fled to South Africa from elsewhere on our continent.
The decision by the SCA will (if properly implemented) bring at least temporary relief for people who find themselves in a similar position than Rèmy did all those years ago.
And Rèmy? Whatever happened to him? The truth is that I do not know. The last time I saw him was the night he had cooked spaghetti puttanesca for us in the flat with the lime juice coloured walls in Gardens. In the early hours of the morning he got dressed and told me that he had an early shift and needed to leave. He hesitated at the door, then stepped back into the flat and gave me a hug that lasted much longer than I was comfortable with at the time.
“Don’t worry,” he whispered (I could feel his warm breath on my neck), “five days was not long at all.” Then he spun around, flicked his hair out of his face and disappeared into the dark night.BACK TO TOP