Home Affairs and Another (23987/2024) [2025] ZAWCHC 226 (29 May 2025)

IN
THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE
DIVISION, CAPE TOWN)

Case number: 23987/2024

In the matter between:

M[…]
A[…]
M[…]                                                                 

First Applicant

F[…]
V[…]
H[…]                                                                  
Second Applicant

And

DIRECTOR-GENERAL:
HOME AFFAIRS                        

First Respondent

MINISTER
OF HOME AFFAIRS                                       
Second Respondent

JUDGMENT
DELIVERED AFTER HEARING ON 29 MAY 2025

DA SILVA SALIE J:

Introduction:

[1]       
This is an application in terms of section 6 of the Promotion of
Administrative Justice
Act 3 of 2000 (“PAJA”) read with
section 33(1) and (2) of the Constitution of the Republic of South
Africa, 1996 (“the
Constitution”).

[2]       
This matter was argued before me earlier today.  The facts and
the submissions
by the parties were argued and ventilated in full
during the hearing this morning.  This judgment is delivered ex
tempore and does not rehash the facts and the respective
submissions in detail, save to the extent necessary and I deal with
the crux
of the matter and as set out later in this judgment.

[3]       
The applicants seek the following relief:

(a)         
an exemption in terms of section 7(2)(c) of
PAJA from having to exhaust internal remedies.

(b)         
the review and setting aside of a decision
by the Refugee Status Determination Officer (RSDO), issued in terms
of section 24(3)(c)
of the Refugees Act 130 of 1998 (“the
Refugees Act”); and

(c)         
an order remitting the application to a
different RSDO for reconsideration de
novo.

(d)         
costs

Background:

[4]       
The First Applicant is an adult Muslim male citizen of Chad who
alleges that he fled
persecution on the grounds of his sexual
orientation, which is criminalised in his country of origin. He was
arrested in Chad during
28 September 2022 whereafter he was convicted
on charges of homosexual activities and sentenced to 18 months
imprisonment. On appeal,
his sentence was reduced to 12 months with
the option of paying a fine.

[5]       
He was released from prison in February 2023.  He entered South
Africa in May
2023, by way of a visitor’s visa.  The first
applicant (“applicant”) has a long-term partner, the
second
applicant, who is a South African citizen and medical doctor. 
In and during 2024 he applied for asylum in terms of the Refugees Act
130 of 1998.  His most recent interview was on 13 September
2024. The reasons provided by the Refugee Status Determination
Officer (“RSDO”)
for rejecting his application are quoted
as follows: (Record page 48)

“Reasons
for Decision”

Passing laws in Chad
is not the monopoly of the Parliament.  Such power belongs
concurrently to the Parliament and the Executive
Branch (article
137).  There is a reserved legislative domain defined by the
Constitution (article 127).  All other matters
that have not
been expressly identified to be within the ambit of the reserved
legislative domain fall under the executive domain. 
Existing
legislation on matters belonging to the executive domain can be
modified by a decree after consultation with the Supreme
Court
(article 138).  Any subsequent intervention of the Parliament in
the executive domain shall be established by the Supreme
Court before
its eventual modification by decree.

During the discussion
of a bill, if the Government is of the view that a proposal or an
amendment falls outside the reserved legislative
domain, it can draw
the attention of the Parliament by raising the inadmissibility
(irrecevabilité) of such a proposal or
amendment.  In
case of disagreement between the National Assembly and the President
of the Republic, either party can defer
the matter to the Supreme
Court that shall take a decision within eight days (Article 140 of
the Constitution).

The judiciary is
independent from the Executive and the Legislature.  Judges
remain in function on a permanent basis, and they
are only subject to
the law in the exercise of their function.

The judiciary
comprises the Supreme Court which is the highest court in judicial
matters, Courts of Appeal, the High Military Court,
Tribunals and the
Justices of the Peace.

The administration of
judiciary (including the appointment, promotion, discipline and
responsibility of judges, etc) is the responsibility
of the High
Court of the Judiciary (HCJ).  The HCJ proposes Judges to the
President for appointment and promotion.  The
Council is chaired
by the President of the Republic, with the Minister of Justice and
the Chairperson of the Supreme Court respectively
as first and second
Vice-Chairs.  The other members of the HCJ are judges elected by
their peers.  When sitting on disciplinary
matters, the HCJ is
presided over by its second Vice-Chair.

Article 157 of the
Constitution provides that the Supreme Court comprises five chambers,
including: the Judiciary Chamber, the Administrative
Chamber, the
Constitutional Chamber, the Audit Chamber and a non-permanent chamber
composed of seven (7) deputies and four (4)
judges of the Supreme
Court elected by their peers to sit in cases of high treason.

As a result, all the
tasks assigned to the former Constitutional Council and the former
High Court of Justice are now devolved to
the Supreme Court.

You were
arrested and sentenced by the court by the court because of your
sexual oriatiantaion and homosexuals’ are not allowed
in your
country.  You stated that you was released by the court because
you have use a lawyer.  When I accessed your
information
concerning Homosexuals there’s a separation of powers between
the executive and the judicial power in terms of
the homosexual laws
(eg).  The Government doesn’t allow same sex relations and
the courts released the offenders. 

Therefore
your application has been rejected as Unfounded in terms of the
Refugee Act No. 130 of 1998.” 
(emphasis own)

[6]       
The core of the application is that the RSDO’s reasons were
unintelligible,
irrational and failed to consider the applicable law
and the country of Chad’s conditions, in particular their
position on
homosexuality and the other relevant factors of this
asylum application.

[7]       
The First Applicant submitted in support of his application for
asylum that he fled
Chad after being convicted and imprisoned solely
for being a homosexual man. He further stated that his safety and
freedom remain
threatened in Chad, where homosexuality is a criminal
offence. He also indicated that his family had disowned him and that
he faces
persecution both from the State and society at large in his
home country.

Central issue:
Whether the reasons are intelligible?

[8]       
The central issue before this Court is whether the decision by the
RSDO constitutes
administrative action reviewable under PAJA and
whether it falls within the category of decisions that are
unintelligible or irrational
for purposes of exemption from the duty
to exhaust internal remedies. The respondent submits and argues that
the reasons were not
only adequate but so too clear.  The
argument follows on behalf of the respondent that the applicant does
not vindicate its
submission that the matter reaches the threshold as
an “exceptional circumstance” to approach this Court for
judicial
scrutiny without exhausting the internal remedies available
to him. Consequently, it is argued for the respondent that the
application
falls to be dismissed with costs.

[9]       
During the hearing of this matter, State’s counsel submitted
that the applicant
had not exhausted internal remedies and is thus
non-suited to bring this application. He also argued that the written
reasons given
by the RSDO (set out above) were adequate, and that if
the applicant had any difficulty with it, he ought to have requested
more
comprehensive reasons in terms of section 5(1) of PAJA.

[10]     
The applicants submit that the refusal letter is unintelligible and
irrational and thus constitutes
a non-decision for purposes of PAJA.
They contend that the reasons were not capable of engaging with, nor
could they have assisted
the First Applicant to pursue an appeal to
the Refugees Appeal Authority (“RAA”). They accordingly
seek exemption under
section 7(2)(c) of PAJA.

Discussion:

[11]     
This brings me to consider the RSDO’s reasons for refusal
through the lens of its adequacy
and intelligibility, as this lies at
the heart of the applicant’s review. During argument this
morning, both counsel, Mr.
Smith and Mr. Mjiyako, were ad idem
that the crux of this matter, the proverbial vexed question herein,
is whether the reasons were unintelligible and whether in fact
the
applicant had exhausted its internal remedies. 

[12]     
The RSDO concluded that the applicant’s asylum claim was
‘unfounded’, relying
primarily on the assertion that the
judiciary in Chad is independent, and that although homosexuality is
criminalised, some courts
had released offenders.  I find the
argument by State’s counsel that these reasons were clear and
adequate rather problematic. 
The conclusion of the reasons is
internally contradictory and factually incoherent. It accepts the
factual basis of criminalisation
of homosexuality, with consequent
criminal convictions and punishments in the applicant’s home
country of Chad, whilst simultaneously
rejecting the credibility of
the applicant’s claim of fear future persecution.

[13]     
In my view, the reasoning reflects a profound misunderstanding of the
legal standards governing
asylum, especially the well-founded fear of
persecution required under section 3(a) of the Refugees Act. The
RSDO’s failure to assess the applicant’s circumstances
against the objective country conditions – and without

reference to UNHCR materials or other international sources –
undermines the lawfulness of the decision in particular the

construction of the reasons as set forth in the refusal. No attempt
was made to test or evaluate the applicant’s claim that
his
prior arrest, imprisonment, and societal ostracization due to his
homosexuality posed a continued threat. In my view, this
reasoning is
not only egregiously unmeritorious — it represents a failed
attempt to even appear specious, let alone appear
as if cogent. It is
devoid of factual or legal coherence, fails to engage with the core
of the applicant’s claim, and disregards
the legal framework
that governs asylum decisions and our international obligations on
the rights of LGBTQIA+ persons.

[14]     
In Makumba v Minister of Home Affairs 2014 JDR 2674 (WCC),
in an application for the setting aside of the RSDO and remit to
another RSDO, the Court dealt with the issue of an applicant
who had
sought asylum based on fear of persecution in her home country of
Malawi for being lesbian.  In setting aside the
decision of the
RSDO, the judgment sets out at paragraph 13 and 15 thereof that
Section 3 of the Refugees Act is the operative provision in
determining refugee status; section 2 of the South African
international obligations under Article 1A(2) of the 1951 Refugee
Convention and the United Nations High Commission
for Refugees
(UNHCR), at paragraph 8 thereof reads: 

“Sexual
orientation is a fundamental part of human identity, as are those
five characteristics of human identity that form the basis
of the
refugee definition: race, religion, nationality, membership of a
particular social group and political opinion.  Claims
relating
to sexual orientation and gender identity are primarily recognized
under the 1951 Convention ground of membership of a
particular social
group.”

[15]     
Not only does the RSDO reasons not in any way give recognition of our
Constitutional and international
obligations in recognition of the
above, the RSDO’s reference to a separation of powers in Chad lacks
relevance to the applicant’s
persecution claim and his previous
prosecution and imprisonment based on his sexual orientation as a gay
man. The theoretical independence
of the judiciary cannot override
the reality that consensual same-sex conduct remains criminalised in
Chad, and that the applicant
was in fact prosecuted and imprisoned
under those laws.  If anything, the position can only be worse
for him should he return
as he would be a convicted person of
homosexual offences.  Upon conviction, he would be a repeat
offender. The assertion that
‘courts released offenders’ ignores that
harm has already occurred and fails to address the applicant’s
fear of re-arrest
or societal persecution. After all, the laws and
regulations of a country reflect its social boni mores.

[16]     
The RSDO’s reasons lack any intelligible or informative content that
could assist the applicant
in formulating an internal appeal. This
falls squarely within the principles established in Link v
Director-General: Home Affairs 2020 (2) SA 192 (WCC) and
Koyabe v Minister of Home Affairs 2010 (4) SA 327 (CC),
which make clear that a decision which is unintelligible or
constitutes a ‘non-decision’ justifies direct review.

[17]     
In this matter, the: “Reasons for the decision” is
characteristic of a sequence of illogical babble. Words and sentences
placed together under the heading “reasons”
do not make
it more than what it is: unintelligible.   In
administrative law, a decision is unintelligible when the reasons

provided fail to convey the factual or legal basis of the decision,
are irrational or incoherent and does not enable the affected
party
to determine whether or how the decision may be challenged. 
Such is the case here.

[18]     
The refugee status determination officers cannot hide behind the
hurdle for applicants having
to proceed to exhaust his or her
“internal remedy” when it provides unintelligent, obtuse
and unfathomable reasoning. 
It must apply his or mind to the
decisions it sets out.  In my view, the reasons by the RSDO
falls squarely within the category
as an “exceptional
circumstance”.  Section 33(2) of our Constitution, dealing
with administrative action, guarantees that everyone whose rights
have been adversely affected by
administrative action has the right
to be given written reasons.  The RSDO herein is bound by such
obligation, his powers
are not unfettered and he was required to
apply his mind in a manner which provides reasons which are clear,
adequate and provide
a meaningful basis from which the applicant can
in fact comprehend, request further reasons and decide in an informed
manner as
to his further rights and remedies in law or make an
informed decision about his future, act with self-determination and
consider
his well-being. 

[19]     
The applicant cannot be faulted for failing to request further or
comprehensive reasons. 
What reasons could follow an
unintelligent set of “reasons” as these?  While Link
confirms that parties should ordinarily seek written reasons
under section 5(1) of PAJA, this is not an immutable requirement.
Whereas
here, the reasons already provided are manifestly nonsensical
and irrational, it would serve no purpose to request elaboration.
The
reasons merely needed to be read (or stated as it was) to be rejected
for being unintelligible.  Requesting additional
reasons would
not have cured the defect, nor would it have enabled a meaningful
appeal to the Refugee Appeal Authority.

[20]     
It follows that the applicant has discharged the burden of
demonstrating exceptional circumstances
under section 7(2)(c) of
PAJA. The reasons provided to the applicant by the RSDO were
unintelligible and the administrative action
is reviewable on the
grounds that it was not rationally connected to the information
before the RSDO.

[21]     
In the circumstances, and for the reasons as set out above it is just
and equitable to set the
decision of the RSDO aside and order that
the applicant be re-interviewed before a new refugee status
determination officer, for
reconsideration and taking into account
all relevant factors and then setting out adequate and clear reasons
for the decision.

Order:

[22]     
In the result, I make the following order:

(a) The First
Applicant is exempted from the requirement to exhaust internal
remedies in terms of section 7(2)(c) of the Promotion
of
Administrative Justice Act 3 of 2000.

(b) The decision of
the Refugee Status Determination Officer, dated 13 September 2024,
rejecting the First Applicant’s application
for asylum is
reviewed and set aside.

(c) The matter is
remitted to a different RSDO for reconsideration within six (6)
months of the date of this order.

(d) The respondents
are ordered to pay the costs of the application jointly and
severally, on Scale B, the one paying the other
to be absolved.

            DA
SILVA SALIE, J

           
JUDGE
OF THE HIGH COURT

WESTERN CAPE