On 29th and 30th October, the North Gauteng High Court heard oral argument in the case brought by the Consortium for Refugees and Migrants in South Africa (CoRMSA) and supported by the Southern Africa Litigation Centre (SALC) challenging the decision of the South African authorities to grant Rwandan general and suspected war criminal, Faustin Kayumba Nyamwasa, refugee status. SALC was in the court room, tweeting live updates (@follow_SALC), and prepared a diary of the proceedings.
Day 1: 29 October 2012
Oral argument in CoRMSA v President of the Republic of South Africa got underway in the North Gauteng High Court, presided over by Judge Mngqibisa-Thusi.
Adv Anton Katz SC presented the applicant’s argument, Adv Moerane SC represented the government respondents and the Twelfth Respondent, General Nyamwasa was represented by Adv Potgieter.
Adv Katz led the Court through the South African refugee legislative framework and the international refugee law obligations conferred on South African officials. Section 4 of the Refugees Act is the crucial provision in this case as it deals with the categories of persons who are ineligible for refugee status and so excluded from the protection granted to refugees. One of the exclusion categories is persons believed to have committed war crimes and crimes against humanity; the category the applicant maintains Nyamwasa falls into. Globally and domestically the rationale for excluding certain people from the protection provided by refugee status is that it is inconceivable that those people who are responsible for atrocities and for causing the events that create genuine refugees should be entitled to access protection.
Members of the press and the general public had expressed concern with the nature of this case in that there was the misapprehension that the applicant was seeking the return of General Nyamwasa to Rwanda where he faced persecution and his life may be at risk. This has never been the case as the applicant is only seeking the withdrawal of Nyamwasa’s refugee status. The way that refugee law is structured means that the fact that Nyamwasa cannot return to Rwanda does not automatically mean he is a refugee. In his argument Adv Katz comprehensively dealt with the relationship between exclusion from refugee status and any potential risks faced by that person in their home country. If an asylum seeker falls into one of the exclusion categories he cannot be considered to be a refugee – and the potential risk he may face in his home country cannot counteract those exclusion factors. In fact the principle of non-refoulement – that a person will not be returned to a country where their life would be at risk – is only applicable to those who qualify as refugees, and not those who have been excluded.
It is important to note however, that the applicant has never sought the return of Nyamwasa to Rwanda – and that from the very beginning of this legal process has maintained that while his refugee status should be withdrawn to preserve the integrity of the asylum system there may be other mechanisms the South African government can employ to confer legal immigration status on Nyamwasa in South Africa.
Adv Katz also referred to Tantoush v Refugee Appeal Board (an unreported decision of the South Gauteng High Court in 2007) to illustrate that the standard to determine exclusion is a low one. The legislation states that an asylum seeker would be excluded if there is “reason to believe” that she or he has been involved in the commission of war crimes. An official faced with an application such as Nyamwasa’s therefore need not be convinced of the person’s involved “beyond a reasonable doubt” or even “on a balance of probabilities”.
Adv Katz set out the obligations imposed on the respondents by the legislation and argued that as the respondents had been provided with evidence that Nyamwasa had been engaged in the commission of war crimes there was an obligation on them to investigate these allegations further and seek the assistance of the UN High Commissioner for Refugees in Pretoria. The main thrust of his argument that, even on their own version, the respondents had not complied with these legislative obligations and had not acted rationally in granting Nyamwasa refugee status.
Unfortunately the proceedings got rather bogged down in one aspect of the applicant’s argument. As support for his argument that the decision taken by the authorities was irrational Adv Katz referred to a statement in the respondents’ papers where it was stated that Nyamwasa had “applied for, and was granted refugee status on 22 June.” The applicant believed that in the light of the complex nature of Nyamwasa’s asylum application with the evidence linking him to the commission of international crimes it would have been impossible for the official to have complied with all his obligations in one day.
At the commencement of his argument Adv Moerane sought permission from the court to introduce new evidence to disprove the applicant’s assertion that Nyamwasa had been granted asylum the same day that he had applied. He stated that General Nyamwasa would consent to the disclosure of his section 22 permit which would indicate that he had applied for asylum prior to 22 June 2010. He argued that the contentious sentence should be read disjunctively – that the date should be read as only applying to the second part of the sentence concerning the granting of asylum.
Nyamwasa’s counsel, Adv. Potgieter, argued that the crucial factor was that it would be in the interests of justice for the Court to be appraised of the true facts and so should admit the permit as evidence.
Adv Katz opposed the application to introduce new evidence at this stage. He argued that there is a set procedure which needs to be followed in all applications before the High Court and admitting evidence now would undermine this process. He also argued that all litigation involves choices, and that as the respondents had chosen not to provide this information earlier they needed to abide by that decision. They cannot be permitted to introduce evidence that they had chosen to withhold because it would bolster an area of their case they now realise is deficient having heard the applicant’s argument. To do so would undermine the litigation process.
The Judge indicated that the issue would be determined the next day and requested all parties to provide Heads of Argument.
Day Two: 30 October 2012
The second day was dominated by the arguments surrounding the admissibility of the new evidence sought to be presented by the respondents. Overnight the respondents had emailed a copy of Nyamwasa’s section 22 permit to the applicant’s legal representatives and the original permit was produced in Court.
Adv Max du Plessis argued on behalf of the applicant. He reiterated Adv Katz’s point from the day before that in order for litigation to function efficiently and effectively the court processes must be respected, and litigants must ensure that they adhere to the rules relating to the submission of pleadings and evidence. He explained that additional evidence may be produced in exceptional circumstances, but that as the respondents had provided no justification for why the permit had not been produced earlier and because the applicant would suffer prejudice if the evidence was admitted exceptional circumstances were not present in this case.
Crucially, because the argument that the authorities had granted Nyamwasa asylum the same day that he had applied for it was only one leg of the applicant’s case admitting the permit would take the matter no further and so there was no need to break the procedural rules to introduce evidence that had no real bearing on the case.
Adv du Plessis also rejected the respondent’s claim that the evidence is incontrovertible and highlighted a number of discrepancies in the document. Although he accepted that there may be innocent explanations because they existed the respondents simply cannot claim that the permit is incontrovertible.
He also argued that the respondents had persistently refused to disclose any information relating to Nyamwasa’s application on the grounds that it is all confidential, and that to now contend that fairness demands that only the sliver of the record that is convenient to the respondents be disclosed cannot be correct. If the respondents want the permit admitted the principle of fairness should require that the entire record be disclosed.
Adv du Plesiss’s main point was that, even if the document was incontrovertible, the fact that the respondents had provided no explanation whatsoever for why the document had not been submitted earlier – despite the fact that they knew that the applicants believed the application was made on the same day as it was granted – meant that the document could not be admitted.
Adv Potgieter, for Nyamwasa, argued that it was his duty to put all the facts before the court that would clarify the applicant’s misapprehension of when Nyamwasa applied for asylum. He said that this document definitively proves this. In response, Adv du Plessis denied this as the document does not clearly provide the date Nyamwasa initially applied, and does not provide the date on which asylum was granted.
Adv. Moerane stated that it had not been the applicant’s original case that the application and decision had been given on the same day – and accused the applicant of opportunistically latching onto a statement in the respondents’ affidavit that they had misinterpreted. Therefore, he denied that the applicants would suffer any prejudice. Adv du Plessis responded that the prejudiced suffered is in the manner in which it has been presented and the damage to the court process this will have.
The Judge reserved judgment on the matter of the admissibility of the permit, explaining that she needed time to consider all the arguments.
Judgment: 9 November 2012
Judgment was handed down in the interlocutory application in respect of the new evidence sought to be admitted by the respondents. Judge Mngqibisa-Thusi admitted the section 22 permit on the grounds that it would be in the interests of justice to do so. As the inclusion of new evidence at this stage equates to the filing of a supplementary affidavit, CoRMSA will now file its supplementary affidavit in reply. The case will continue on a date yet to be confirmed.
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2 RESPONSES TO “CORMSA V PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA & OTHERS: COURT DIARY”
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