Court sets aside Congolese man’s refugee status withdrawal in Cape Town

The Western Cape High Court in Cape Town has set aside the withdrawal of a Congolese man’s refugee status.

Acting Judge Siviwe Yake delivered the ruling on 17 September 2026.

The case involved Belgician Ilunga, who had lived in South Africa since 2003.

The judge found that the Standing Committee for Refugee Affairs and its chairperson had made a flawed decision on 29 December 2023.

According to the judgment, the decision failed on several fronts.

“The cumulative effect of the defects is that the impugned decision cannot withstand scrutiny under PAJA.

“Each of these defects, whether considered individually or cumulatively, renders the decision unlawful, unreasonable, and procedurally unfair within the meaning of section 33 of the Constitution and section 6 of PAJA,” Yake ruled.

Background to the refugee status dispute

According to the court records, Ilunga was born in 1982 in Pweto, in Haut-Katanga province.

He fled the Democratic Republic of the Congo (DRC) after ethnic tensions between the Luba and Lunda groups worsened.

The court heard that he was granted refugee status after he arrived in South Africa.

The committee first withdrew his status in 2016. On 9 May 2023, Judge Erasmus reportedly set that decision aside and ordered a reconsideration.

The committee withdrew his status again on 29 December 2023.

According to the letter sent to Ilunga’s attorney, the committee said his refugee status was no longer justified.

“The circumstances under which the applicant was recognised as a refugee no longer exist and that is why the Standing Committee relied on section 5(1)(e) of the Refugees Act as amended.”

The letter also faulted his case.

“The applicant has at the same time failed to show the Standing Committee that there are compelling reasons which arise from his claim when he came to South Africa as per section 5(2) of the Act.”

Arguments from both sides in the refugee case

Ilunga’s counsel, Q Maxongo, argued that the committee took too narrow an approach.

He relied on the Northwest Townships case.

According to Judge Colman in that case, a failure to apply the mind included “a failure to direct his thoughts to the relevant data or the relevant principles, reliance on irrelevant considerations, an arbitrary approach, and an application of wrong principles.”

The respondents’ counsel, Y Abbas, said the decision was reasonable.

He argued that Ilunga had submitted outdated reports, including one from 2003.

Yake accepted that applicants had a duty to cooperate. However, Yake also said this did not end the matter.

“While the duty of cooperation is a recognised principle in refugee law, it cannot absolve the decision-maker of the obligation to apply her mind to the totality of the circumstances.”

“The decision-maker must demonstrate meaningful engagement with the material facts.”

Why the court found errors of fact and law

The committee had described Kinshasa and Haut-Katanga as relatively safe.

Yake said that statement worked against the committee.

“Such a concession implicitly acknowledges the persistence of insecurity.”

The committee had also acknowledged renewed incursions by the Mai-Mai Bakata-Katanga militia in Pweto.

Yet it dismissed reports of regional atrocities as irrelevant. According to the judge, this was a contradiction.

“This acknowledgement fatally undermines the conclusion that the reports were irrelevant.”

Yake also found a material error of law. The committee had wrongly confined its inquiry to geographic categories.

“The exclusion of such evidence materially influenced the outcome.”

What happens next for Ilunga’s refugee status

Ilunga had asked the court to decide his status itself.

Yake refused and sent the matter back to the committee.

“In my view, the respondents remain best placed to undertake the determination, having regard to all relevant considerations within the statutory framework.”

The committee must reconsider Ilunga’s status within 60 days of the order.

The respondents must also pay his costs. The judge explained why.

“The general principle is that costs follow the result, subject to the court’s discretion to depart therefrom in appropriate circumstances.”