General's refugee status bid hits snag

2012-10-30 22:42
Faustin Kayumba Nyamwas (Picture: AFP)

Faustin Kayumba Nyamwas (Picture: AFP)

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Pretoria - A court application challenging the South African refugee status of a former Rwandan army chief has hit a legal snag which might cause a lengthy delay in the proceedings.

The North Gauteng High Court in Pretoria on Tuesday heard legal argument about the admissibility of a document that the home affairs department and former Rwandan general Faustin Kayumba Nyamwasa wanted to introduce as evidence in the application.

This was after counsel for the Consortium for Refugees and Migrants in SA (CoRMSA) concluded legal argument in the main application to set aside the decision to grant refugee status to Nyamwasa.

Anton Katz SC, for CoRMSA, argued that Nyamwasa should never have been considered for refugee status because he was suspected of committing war crimes.

He argued that Nyamwasa appeared to have applied for, and to have been granted, refugee status within the space of one day, which was irrational and unlawful.

Counsel for home affairs, Marumo Moerane SC, argued that the court should allow Nyamwasa's asylum seeker permit as an exhibit, as it contained evidence which was necessary to dispose of the main application.

He said the document provided incontrovertible proof that Nyamwasa had already applied for asylum status on 1 March 1 2010, months before being granted refugee status on 22 June that year.

He said CoRMSA's lawyers were "making a mountain out of a molehill" because they had misread a sentence in the respondent's (home affairs' and Nyamwasa's) answering affidavit and "opportunistically" latched on to it.

Nyamwasa's lawyer, Nic Potgieter, said his client had never mentioned a date on which he applied for asylum and now wanted to clear up the issue.

CoRMSA's junior counsel Max du Plessis argued the government should not be allowed to simply ignore the rules of court, as it would set a dangerous precedent.

He said the document had always been available and the respondents could not explain why it was not included in the answering affidavits from the start.

The document did not take the case any further and far from clearing anything up, only added to the confusion as it appeared to suggest unlawfulness on the part of the government, he added.

"This is not an ordinary litigant. This is the government... One of the applicant's [CoRMSA's] central complaints is that the respondents have hidden behind confidentiality.

"What we have been faced with throughout the litigation was a strategy of foot-dragging and playing possum. We struggled to get an answer out of them for months... The respondents' conduct is at odds with the constitutional principles of openness and accountability and falls to be condemned... They only want to present this slither of evidence without disclosing its context," Du Plessis said.

Judge Nomonde Mngqibisa-Thusi reserved judgment on whether the court should allow home affairs to introduce the document.

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