On Friday the Supreme Court of Appeal (SCA) delivered judgment in an extremely complicated dispute involving asylum seekers in Cape Town. The SCA’s judgment was not unanimous and this is what one the judges in the majority had to say about the reasoning of the judge in the minority.
“[93] The fundamental ground for my disagreement with my colleague lies with his approach that we can determine whether the Director-General’s decision in this case under the Refugees Act was administrative action, by referring to another case, dealing with a different decision taken in terms of a different statute about a different subject matter. That is not how the Constitutional Court has enjoined courts to undertake the enquiry whether particular conduct is administrative action. The enquiry we must undertake is into the nature of the very power under consideration in the particular case. The power being exercised in Bato Star was fundamentally different from the power being exercised here by the Director-General, as is demonstrated by the following analysis”.
To view the entire judgment courtesy of SAFLII click on Minister of Home Affairs v Scalabrini Centre, Cape Town. This is an extract from the majority judgment.
[79] No doubt the Director-General will be compelled by circumstances to consider afresh the future of the Cape Town Refugee Reception Office, and we cannot say the outcome is a foregone conclusion. In those circumstances it would be unreasonable to order the re-establishment of the office if it turns out that a lawful decision will not end in that result, and if it turns out that the Director-General decides otherwise, no such order will be called for. In my view an equitable order would be one that allows the Director-General an opportunity to consider afresh, after consulting with the interested parties, what is to become of the Cape Town office. If no decision is made within the stipulated time the Scalabrini Centre should be given leave to approach the court below for further relief – the parties having leave to place before the court the factual position at that time.