Johannesburg– On Wednesday 24 May 2017, the Supreme Court of Appeal was scheduled to hear arguments in an appeal lodged by the Consortium for Refugees and Migrants in South Africa in the case of the Consortium for Refugees and Migrants (CoRMSA) and others v President of The Republic of South Africa & Others matter. The case was bought before the High Court by CORMSA, the Southern Africa Litigation Centre (SALC) and the Wits Law Clinic to challenge the granting of refugee status to Kayumba Nyamwasa, a former Rwandese general. The case was brought in light of compelling evidence that General Nyamwasa had been involved in war crimes. According to international and domestic refugee law person who is suspected of involvement in war crimes is precluded from receiving protection as a refugee. The case sought to protect the integrity of the asylum system which is available to protect persons fleeing persecution and not persons suspected of involvement in war crimes. The High Court ruled that General Nyamwasa was correctly granted refugee status. This decision went on appeal before the Supreme Court of Appeal.
Background to this matter:
Following the granting of refugee status by the Department of Home Affairs, CORMSA and SALC commenced judicial review proceedings before the South Gauteng High Court. The proceedings were commenced after South African competent authorities failed to respond to submissions presented by CORMSA and SALC detailing legal implications for granting Gen. Nyamwasa refugee status. The fundamental argument that was advanced was that Gen. Nyamwasa was a subject of international indictments from three separate countries’, France, Spain and Rwanda on allegations of genocide, crimes against humanity and war crimes, among others. Granting refugee status to persons suspected of committing these crimes runs contrary to refugee law. CoRMSA and SALC, therefore, requested that the South African authorities withdraw the decision to grant Gen. Nyamwasa refugee status. The High Court however found in favour of Nyamwasa and dismissed the application. CORMSA then sought leave to appeal before the High Court and was denied. They then successfully petitioned the Supreme Court of Appeal for leave to appeal. This is the outcome of the appeal hearing of the 24 May 2017.
No arguments were presented on the day as all parties reached an agreement in the following terms. This agreement was made an order of court:
- The appeal succeeds;
- The decision taken in June 2010 to grant the 9th Respondent (Nyamwasa) refugee status is reviewed and set aside;
- The above order in paragraph 2 is suspended for a period of 180 days from the date of appeal (24th April 2017) to enable the Department of Home Affairs’ refugee authorities to reconsider and make a final decision on the refugee status of the 12th Respondent;
- The Appellant and other interested parties are permitted to make written and oral submissions to the Chairperson of the Standing Committee for Refugee Affairs (10th Respondent) and the Officer responsible for granting refugee status to the 12th Respondent (11th Respondent);
- The 12th Respondent is also permitted to make written and oral submissions to the 10th and 11th
- The Appellants were represented by Adv Gilbert Marcus SC and Adv Max du Plessis. Wits Law Clinic acted as attorneys in the matter.
For further background on the case: www.southernafricalitigationcentre.org