Minister of Home Affairs v Saidi

The respondents were asylum seekers who had applied for refugee status in South Africa. Each was issued an asylum seeker permit under section 22(1) of the Refugees Act 130 of 1998. Their applications for refugee status were refused by the Refugee Status Determination Officer (RSDO). All exhausted their internal remedies of review and appeal under Chapter 4 of the Act without success. They then launched individual applications for judicial review in the Western Cape High Court. Previously, the Refugee Reception Officer (RRO) had extended their permits while such judicial review applications were pending, pursuant to an arrangement between the State Attorney and attorneys representing asylum seekers. However, the third appellant, appointed as the new RRO in May 2015, refused to extend permits after the internal remedies had been exhausted, believing she lacked the power to do so under section 22(3) of the Act. The respondents approached the High Court seeking orders compelling the RRO to extend their permits pending the outcome of their judicial review applications.

• Whether section 22(3) of the Refugees Act empowers the Refugee Reception Officer to extend asylum seeker permits after the asylum seeker has exhausted internal remedies of review and appeal under Chapter 4 of the Act
• Whether the High Court should have directed the RRO to extend the permits or whether the matter should be remitted to the RRO for consideration in the exercise of her discretion
• Whether the asylum seekers had a substantive legitimate expectation that their permits would be extended pending judicial review proceedings

1. The appeal is dismissed with costs. 2. The cross-appeal is dismissed.

Section 22(3) of the Refugees Act 130 of 1998 empowers the Refugee Reception Officer to extend asylum seeker permits from time to time even after the asylum seeker has exhausted internal remedies of review and appeal under Chapter 4 of the Act. The power to extend permits is not limited to the period before exhaustion of internal remedies. This interpretation is supported by: (1) the plain language of section 22(3) which contains no temporal limitation; (2) section 22(6) which grants the Minister discretion to withdraw permits after rejection of asylum applications, implying permits can continue beyond that point; (3) the purpose of the Refugees Act to protect vulnerable asylum seekers and give effect to the principle of non-refoulement; and (4) the constitutional imperative in section 39(2) to interpret legislation to promote the Bill of Rights, particularly the rights to bodily integrity, administrative justice and access to courts. Without the ability to extend permits pending judicial review, asylum seekers' constitutional rights would be rendered nugatory.

The Court observed that the word "may" in section 22(3) confers a true discretion on the RRO rather than imposing a duty coupled with power. The RRO must exercise discretion on whether to extend permits, for what duration, and subject to what conditions. Each application must be considered on its merits, and factors such as criminal activity by an asylum seeker could justify refusal to extend. The Court left open the broader question of whether substantive legitimate expectations can give rise to enforceable rights in South African law, noting this has not been definitively decided. The Court also noted that while the principle in Biowatch Trust applies to prevent costs orders against unsuccessful constitutional litigants against government, government must pay costs when it loses such litigation. The Court commented that if asylum seekers cannot have permits extended, the suggested alternative remedy of interdicting arrest and detention is problematic as it interferes with the Minister's discretion under sections 22(6) and 23 of the Act.

This case establishes an important protection for asylum seekers in South Africa by confirming that permits can be extended beyond the exhaustion of internal remedies while judicial review proceedings are pending. It prevents a gap in protection that would leave asylum seekers vulnerable to deportation while pursuing constitutional rights to administrative justice. The judgment demonstrates the court's application of constitutional values and international principles (particularly non-refoulement) in interpreting refugee legislation. It also illustrates the limits of judicial intervention in administrative discretion, confirming that while the RRO has power to extend permits, courts should not substitute their own decision for that of the administrator absent exceptional circumstances. The case balances refugee protection with proper exercise of administrative discretion.