The SCA found that the second decision by the DG fell short of constitutional legality because:
(a) he had failed to consult with interested parties, such as the respondents; and
(b) it was irrational because the decision to close the PE RRO had been made in ignorance of the true facts material to that decision.
The SCA accordingly confirmed the conclusion reached by Eksteen J. During its judgment, the SCA expressed strong criticism of the relevant authorities and in particular the DG for:
(a) failing to disclose to it that the second decision had been taken whilst a petition was pending before it in respect of the first decision
(b) failing to comply with the orders of court; and
(c) showing a lack of candour in a response by the Minister to a question by an opposition MP in Parliament.
The SCA accordingly concluded that as the relevant authorities had shown themselves not to be capable of trust, a simple declaration that the second decision was unlawful, would not suffice and would not constitute effective relief for the respondents.
Appeal, closure of refugee reception services
On 16 February 2012, and at the instance of the respondents, the High Court reviewed and set aside the decision by the DG to close the Port Elizabeth RRO (PE RRO) (the first decision). On 14 May 2012, Pickering J refused leave to the relevant authorities to appeal and directed that pending the outcome of any further appeal, a fully functional RRO be opened and maintained. Despite the order of Pickering J, the PE RRO remained closed to new applicants. On 21 September of that year, the DG indicated that Pickering J’s order had been overtaken by events as a fresh decision had been taken to close the PE RRO (the second decision).
The respondents challenged the second decision. This time the matter came before Eksteen J, who set that decision aside. He, like Pickering J, also ordered the relevant authorities to ensure that an RRO is open and fully functional within the Nelson Mandela Metropolitan Municipality. But he granted leave to the relevant authorities to appeal to the SCA.
The SCA determined the constitutional legality of the second decision.
The SCA dismissed the appeal and ordered relevant authorities to restore the refugee reception services to the Port Elizabeth Refugee Reception Centre.
The SCA also directed the DG to report in writing to the Somali Association of South Africa Eastern Cape and the Project for Conflict Resolution and Development (the respondents) as to what steps have been taken and what progress has been made to ensure compliance with the aforesaid order.
The second decision by the DG fell short of constitutional legality.