Press statement: Constitutional Court upholds ruling that PE Refugee Reception Office be reopened

The Constitutional Court has refused the Department of Home Affairs’ application for leave to appeal March’s ruling in the Supreme Court of Appeal (SCA) that the Port Elizabeth Refugee Reception Office (RRO) be reopened.

The SCA had ordered Home Affairs to reopen the RRO and provide full services by 1 July 2015. The Department then appealed the ruling in the Constitutional Court where it has been dismissed with costs.

• Read the full SCA judgment

This judgment compels Home Affairs to fully implement the SCA ruling which found the closure unlawful and included an order to reopen within three months and a stipulation that monthly progress reports be submitted to show compliance with the order.

“The result of the Constitutional Court’s decision to dismiss the appeal is that asylum seekers and refugees in and around Port Elizabeth will no longer have to travel long distances for refugee services. This will go a long way in ensuring protection under international law,” said David Cote, head of LHR’s Strategic Litigation Programme.

The RRO was closed in 2011, severely curtailing refugee services for the asylum seeker population in and around the Eastern Cape. This was exacerbated by Home Affairs’ unwillingness to allow files to be transferred to remaining RROs in Pretoria, Durban and Musina.

In 2012 the Somali Association of South Africa and Project for Conflict Resolution and Development, represented by Lawyers for Human Rights, obtained an order setting aside the Port Elizabeth office closure. However, Home Affairs failed to reopen it. Instead the director-general took a new decision to keep the RRO closed, however this too was declared unlawful and the court ordered that it be reopened by October 2013. This decision was taken on appeal by the department in the SCA.

Home Affairs had based part of its decision to close the office on plans to open a reception office at the Lebombo border crossing with Mozambique in line with a departmental decision to relocate all RROs to South Africa’s borders. The original date for the construction and opening of the office was earmarked for April 2012 but has been delayed for nearly four years with a new date expected in February 2016 at the earliest. In the meantime, no additional offices have been put in place to deal with the overflow of clients at the three remaining offices.

The SCA was particularly critical of Home Affairs Director-General Mkuseli Apleni’s conduct in seeking to circumvent the previous two orders, saying “it is a most dangerous thing for litigants, particularly a state department and senior officials in its employ, to willfully ignore an order of court”. The justices were also critical of the way in which the Department misled Parliament by stating that no new office would be opened in Lebombo. Apleni stated that the answer to that parliamentary question was only for that financial year and relied on unspecified parliamentary “customs” of only answering questions regarding the proceeding financial year. “That such a response is adduced by a senior official – under oath no less – beggars belief,” the judgment read.

The SCA recognised the particularly vulnerable position in which asylum seekers find themselves when they first arrive in the country.  Newly-arrived asylum seekers often gravitate towards other community members who can provide them with shelter and food while going through the asylum process which can take several years and requires multiple visits to the refugee office. Asylum seekers are not entitled to any state assistance and are expected to find their own jobs and means of supporting themselves and their families.