Case CCT 107/17 
[2018] ZACC 09
Hearing Date : 21 November 2017
Judgement Date: 24 April 2018

Media Summary of Judgment

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

Today the Constitutional Court handed down judgment in an application for leave to appeal and an application for leave to cross-appeal against orders of the Supreme Court of Appeal (SCA). The SCA upheld the decision of the High Court Western Cape Division, Cape Town (High Court), which interpreted section 22(3) of the Refugees Act 130 of 1998 (Refugees Act) to grant a Refugee Reception Officer (RRO) a discretion to extend an asylum seeker permit pending the outcome of judicial review proceedings, after an asylum seeker has exhausted internal review and appeal remedies.

The applicants are asylum seekers, who each applied for refugee status in South Africa and were issued permits by the RRO allowing them to reside temporarily in South Africa pending the finalisation of their applications for asylum. Their applications were all refused. They then lodged internal appeals or reviews. Pending finalisation of the appeals and reviews, the RRO extended the permits. The appeals and reviews were unsuccessful. The applicants launched applications in the High Court under the Promotion of Administrative Justice Act 3 of 2000 (PAJA) for the review and setting aside of the decisions refusing them refugee status. Claiming a lack of power under the Refugees Act, the RRO refused to extend the applicants’ permits pending finalisation of their PAJA reviews.

The applicants then approached the High Court on an urgent basis to compel the RRO to renew the permits pending finalisation of the PAJA review process. The applicants argued that the Refugees Act mandates the RRO to extend temporary permits pending the outcome of judicial review. The respondents contended that, without a court order, an RRO is not legally authorised to extend permits beyond internal reviews and appeals. The High Court declared that section 22(3) does confer on the RRO the discretionary power to extend an asylum seeker permit, even after the internal appeal and review processes have been exhausted, but the RRO is not required to do so. Section 22(1) of the Refugees Act authorises the RRO to grant an asylum seeker a permit pending the “outcome of an application” for refugee status. Section 22(3) provides that the permit, which is issued for a limited duration, may be extended by the RRO from time to time.

The respondents appealed to the Supreme Court of Appeal against that part of the judgment that held that an RRO does have the power to extend permits pending finalisation of judicial review. The applicants cross-appealed the holding that the RRO is not required to extend the permits, but may do so upon the exercise of discretion. The SCA largely upheld the order and reasoning of the High Court. The applicants and respondents approached the Constitutional Court for leave to appeal and cross-appeal the decision of the SCA.

In the Constitutional Court, the applicants and respondents agreed that the word “may” in section 22(3) empowers the RRO to extend permits and this power is coupled with an obligation to exercise it “pending the outcome of an application”. However, the parties disagreed over the interpretation of “outcome of an application”. The applicants argued that the logical reading of “outcome” is the final determination beyond which no further decision can be reached. This outcome, the applicants submitted, must include judicial review since there can be no final determination of an application until the end of a PAJA review. The respondents argued that the “application” referred to in section 22(1) that says “pending the outcome of an application in terms of section 21(1)” is the application for refugee status made to an RRO. “Outcome” is the ultimate internal administrative decision provided for in the Refugees Act.

In the majority judgment penned by Madlanga J and concurred in by Zondo DCJ, Cameron J, Froneman J, Kathree-Setiloane AJ, Mlantla J, Theron J, and Zondi AJ (first judgment), the Constitutional Court held that the most constitutional interpretation of sections 22(1) and 22(3) is that the word “may” in section 22(3) does not confer a discretion, but rather empowers and enjoins the RRO to extend asylum seeker permits until the finalisation of judicial review. The Constitutional Court must interpret the statutory provisions in accordance with the purpose of the Refugees Act, which is to give effect to international refugee law, in particular, the principle of non-refoulement (non-return). The first judgment reasoned that an interpretation refusing to extend permits during judicial review would be at odds with the principle of non-refoulement since asylum seekers would lose their entitlement to remain in the Republic lawfully and be at risk of deportation and return to the very persecution from which they were forced to escape.

In accordance with the injunction in section 39(2) of the Constitution which requires that courts interpret legislation in a manner that promotes the spirit, purport and objects of the Bill of Rights, “outcome” must be interpreted in a manner that best protects the fundamental rights of asylum seekers. The first judgment thus interpreted “outcome” as the final determination of PAJA review. This reading protects an asylum seeker’s right to just administrative action without risk of deportation, right to freedom and security of the person, and right to life. The first judgment took the view that since the RRO has no discretion over extending permits before finalisation of the internal application process, there is no reason to grant the RRO a discretion after such a process and pending judicial review. If at any stage before the “outcome” there is a reason to, the Minister may withdraw an asylum seeker permit in terms of section 22(6) of the Refugees Act.

Accordingly, the Constitutional Court set aside the orders of the SCA and High Court and declared that an RRO is obliged to extend a permit pending finalisation of the judicial review process.

In a dissenting judgment, Jafta J, with Kollapen AJ concurring, held that the RRO does in fact have a discretion to extend an asylum permit. Section 22(3) must be read in context to retain its purpose and to remain constitutionally compliant. It enables the RRO to “from time to time extend the period” for which a permit has been issued. This requires that the RRO apply her mind to the particular application for extension; which she would not be able to do if the extension were automatic – making the determination artificial and irrational and thus unconstitutional. The second purpose of section 22(3) is to enable the RRO to amend any conditions imposed on the permit by the Standing Committee. For an amendment to be effected there must be facts justifying it; this again would require the RRO to apply her mind by making amendments only if she is convinced that an amendment is warranted.

An interpretation that says the RRO is obliged to extend the duration of the permit or amend the conditions (“may’ meaning “must”) would effectively transfer the power to extend or amend the permit from the RRO to the applicant. An interpretation that reduces the RRO to a mere rubber stamper will be at odds with the scheme of section 22. If “may” is interpreted to mean “must” in section 22(3), it would mean that once an application for the extension of a permit or amendment of conditions is made, the RRO is obliged to consider and make a decision, one way or the other. The obligation to act is limited to the determination of the application. Where there is an improper exercise of the discretion, this would not in and of itself expose an applicant to refoulment. Such improper exercise is remediable though a review application. Even if the discretion is improperly exercised, applicants are not liable to be sent back because of the protection afforded by section 2 of the Refugees Act which espouses the principle of non-refoulment. 

The Full judgment here.