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IMMIGRATION

IMMIGRATION – Asylum seeker – Refugee status – Principle of non-refoulment – Applicant did not mislead South African government at time when he applied for refugee status – Clearly sets out his historical background and origin – Respondent made an erroneous decision by failing to adequately consider representations and relevant reports prior to withdrawal of applicant's refugee status – Application granted – Decision is referred for re-consideration – Refugees Act 130 of 1998, ss 3, 5 and 36.

Facts and issue: The applicant seeks an order for the review and setting aside of a decision of the Standing Committee for Refugee Affairs (SCRA) which is the first respondent, to withdraw the applicant’s refugee status in terms of section 5(1)(e) and 36 of the Refugees Act 130 of 1998. The critical question is whether SCRA’s decision to withdraw the applicant’s refugee status should be reviewed and set aside as unlawful and unconstitutional.


Discussion: It is disputed that the first applicant was granted an opportunity to make representations to the SCRA after it had already made its final decision which had been brought before this court for review. At all material times, the applicant who is from the eastern DRC, specifically South Kivu and the Kasai Oriental province where he was born as indicated on the marriage certificate at page 76 of record, did not mislead the South African government at the time when he applied for refugee status in 2012. The respondent’s stance is that the decision is not reviewable because the applicant was given an opportunity to make representations whereupon the submissions, he made were based on new, incorrect facts in the matter. They however do not dispute that in his representations, the applicant clearly sets out his historical background and origin. In addition, that the applicant also sets out the terror and fear that he experienced while helping to medically treat rebels in the DRC resulting his life being in danger from the government and that he is still fearing persecution on return to his country of origin.


Findings: The Rule 53 record suggests that the respondent made an erroneous decision by failing to adequately consider the representations, the applicant's prior applications, and the reports from the Refugee Status Determination Officer (RSDO) prior to the withdrawal of the applicant's refugee status. The assertion that the circumstances under which the applicant was recognized as a refugee have ceased to exist, without a comprehensive explanation, is not only illogical but also unconstitutional. There is a lack of satisfactory reasoning regarding the basis for this conclusion, and the respondent has not provided any documentation demonstrating consultation with the RSDO to establish a full understanding of whether the applicant's safety would be assured upon returning to his country of origin. When the decision was made to withdraw the applicant’s refugee status, there was no other report filed contrary to the one submitted by the RSDO which led the RSDO to conclude that the applicant’s life was at risk. As a result, there is basis in law, or in fact, for the SCRA to come to a different conclusion as such a conclusion is not supported by any report or objective facts.


Order: The application to review and set aside the first respondent’s decision to withdraw the first applicant’s refugee status in terms of section 36 of the Refugees Act 130 of 1998 is granted. The decision to withdraw the first applicant’s refugee status is referred back to the SCRA for proper re-consideration.

Kabula v Standing Committee for Refugee Affairs [2025] ZAWCHC 7

16 January 2025

MTHIMUNYE AJ

IMMIGRATION – Asylum seeker – Detention and deportation – Applicant applied for asylum before being arrested – Insulated from deportation until application had been finally considered – Failure to consider whether interests of justice permitted release of applicant subject to reasonable conditions – Interests of justice permitted and warranted release subject to default conditions imposed – Applicant released from detention pending Part B of application – Refugees Act 130 of 1998, s 21(4).

Facts and issue: The applicant (Mr Maow) is a 26-year-old Somalian national, who states that he entered South Africa via Zimbabwe, after having left Somalia to escape tribal conflict. According to Mr Maow, he applied for asylum at the Gqerberha Refugee Reception Office. Mr Maow resided in Gqerberha at this time, but visited a friend in Kleinmond, near Cape Town. When helping the friend at a shop in Kleinmond, the police and Department of Home Affairs (DHA) officials entered the shop and arrested him. Mr Maow avers that he advised the police that he had applied for asylum and had a return date at the Refugee Reception Centre in Gqerberha, but that they insisted on placing him in custody and detaining him. He also says that the police took his Somalian passport.


Discussion: The applicant had prima facie established that he had applied for asylum before he was arrested, and that being so, he was insulated from deportation by section 21(4) of the Refugees Act 130 of 1998 until his application had been finally considered. Any potential harm to the DHA, and thus any balance of convenience concerns, were also addressed by the default terms and conditions prescribed. By suspending and declaring of no force and effect the Form 30 issued in respect of the applicant, the court was therefore suspending and declaring of no force or effect the magistrates’ court’s confirmation of the applicant’s (further) detention for purposes of deportation. That being so, the applicant should also have been released from detention, as sought in prayer 2.2 of Part A of the notice of motion. Prayers 2.1 and 2.2 thus had to stand or fall together; and so prayer 2.1 could not be granted while prayer 2.2 was postponed for subsequent consideration.


Findings: Neither the DHA nor the magistrate considered whether the interests of justice permitted the release of Mr Maow subject to reasonable conditions; they instead considered it dispositive that he had no documentary proof of an asylum application or a right to live or work in South Africa and that the DHA system apparently had no record of any such application. The interests of justice permitted, and indeed warranted, the release of Mr Maow subject to the default conditions imposed, or reasonable terms and conditions furnished by the respondents within five days of the order.


Order: The applicant be released from detention and permitted to remain in the Republic of South Africa pending the final outcome of Part B of this application, subject to reasonable terms and conditions to be furnished by the first and second respondents to the applicant within 10 days of the order.

Maow v Minister of Home Affairs [2025] ZAWCHC 4

13 January 2025

FARLAM AJ

IMMIGRATION – Asylum seeker – Detention and deportation – Deportation notice preventing application for asylum – Seeking interdict – Delay in applying for asylum – Good cause – Indicated intention to apply for asylum – Must be afforded an opportunity to do so – Delay in expressing that intention is no bar to applying for refugee status – Illegal entry and expired visas did not disqualify applicants from seeking asylum – Interim interdictory relief granted – Refugees Act 130 of 1998, s 21(1)(b).

Facts and issue: This is an opposed urgent application in terms of which the applicants, who are Bangladeshi nationals, seeks interim relief to urgently suspend the Form 23 notices and to interdict the respondents from initiating any process to detain and/or deport and/or order the applicants to depart from the Republic of South Africa, until each applicant has had the opportunity to lodge an application for asylum in terms of section 21(1)(b) of the Refugees Act 130 of 1998 and until such time that each of the applications have been determined on its own merits. The applicants claim that they left their home country in fear of their lives due to political unrest. The central issue concerns the rights invoked by the applicants to apply for asylum in terms of Section 21(1)(b) of the Refugees Act. The respondents argued that the applicants have not lodged good cause applications. They submitted that the applicants have failed to invoke asylum as prescribed.


Discussion: The applicants all have valid Bangladesh passports. They all provided a transparent explanation of their commute to South Africa by air and they all ultimately ended up in Swellendam where they resided and worked. The Department of Home Affairs (DHA) official, Mr Mngxekesa, issued each of the applicants with a Form 23 Notice (the notices) which were issued in terms of section 33(4)(c) of the Immigration Act. The applicants attended the Refugee Reception Office to present their Notices. They were informed that they could not apply for asylum because their notices were completed in such a manner that did not allow the applicants to apply for asylum. Once an illegal foreigner has indicated their intention to apply for asylum, they must be afforded an opportunity to do so. It is therefore manifest that a delay in expressing that intention is no bar to applying for refugee status.


Findings: A delay in applying for asylum does not disqualify the applicants from applying for asylum. It is unambiguous that until an applicant’s refugee status has been finally determined, the principle of non-refoulement protects the applicants from deportation. Whilst the applicants may be criticised for the delay in actioning their intent to seek asylum, it is evident that they have a prima facie right to apply for asylum. Unless and until their refugee status has been finally determined, the principle of non-refoulement protects the applicants from deportation, whether they have a review challenge to the Form 23 notice or not. Having found that the applicants have established a prima facie right, it follows that if they were to be deported, there exists a well-grounded apprehension of irreparable harm. This is so because they assert that because of the political conflict and instability in Bangladesh, their lives are at risk. There is nothing on record to gainsay this assertion and therefore, the court is to accept that there is a danger that the applicants will suffer irreparable harm.


Order: The applicants are granted interim interdictory relief.

Sattar v Minister of Home Affairs [2025] ZAWCHC 5

9 January 2025

ANDREWS AJ

IMMIGRATION – Asylum seeker – Detention and deportation – Fled country of origin due to persecution – Refugee status has not been finally determined – Invokes principle of non-refoulement – Protects applicant from deportation until refugee status has been finally determined – Deportation before final determination of asylum status would contravene principle of non-refoulement – Continued detention is lawful pending outcome of judicial review – Refugees Act 130 of 1998, s 2.

Facts and issue: The applicant, Mr. Orie, a Nigerian national, entered South Africa through an unauthorized port of entry, seeking asylum due to alleged persecution in Nigeria. He was issued a temporary asylum permit, which was extended multiple times until 2023, when further extensions were unsuccessful. Mr. Orie was arrested for failing to produce a valid permit and detained. Subsequently, the Magistrate's Court ordered his transfer to a deportation facility, leading to his detention pending deportation to Nigeria. He filed a judicial review application in the High Court, challenging the rejection of his asylum application. The applicant seeks that the respondents be interdicted from deporting him until his status has been lawfully and finally determined; that his continuing detention be declared unlawful; and that the respondents be directed to release him from detention.


Discussion: It is the applicant’s claim that he cannot be deported to his country of origin because he remains an asylum seeker as his refugee status has not been finally determined. In support of this supposition, the applicant relies on section 2 of the Refugees Act 130 of 1998 which he contends protects aspirant asylum seekers, like him, from deportation to the country of their origin where they may be subjected to persecution. In defending himself against the imminent deportation by the respondents, the applicant invokes the principle of non-refoulement. He alleges in his papers that even though his application for asylum was rejected, his refugee status has not been fully finalised because he has not exhausted all his remedies. The law as it stands is that until an applicant’s refugee status has been finally determined, the principle of non-refoulement protects her/him from deportation.


Findings: The relief sought by the applicant not to be deported at this stage, holds sway. There is ample, uncontroverted evidence, that points to the fact that the applicant’s refugee status has not been finally determined. He is protected by the principle of non-refoulement from deportation until the process for determining his status has been completed. There is no relief sought on the papers against the order of the Magistrate Court which confirmed the status of the applicant as an illegal immigrant and further ordered his detention and eventual deportation. Which means that the applicant is detained in terms of a valid court order. Even if such relief had been sought, this court, as constituted, has no authority to set that order aside.


Order: It is declared that the applicant is, in terms of section 2 of the Refugees Act 130 of 1998, entitled to remain lawfully in the Republic of South Africa. The respondents are ordered to refrain from deporting the applicant until his status has been determined and finalised.

Orie v Minister of Home Affairs [2024] ZAGPPHC 1321

17 December 2024

JOYINI AJ

IMMIGRATION – Critical skills visa – Refusal – Applicant a candidate engineer – Candidate engineer cannot work alone without supervision – Candidate engineer not a skill contemplated in the Act – Engineering Council of South Africa registration category – Minister concluded that applicant lacked the necessary critical skills – Decision is related to purpose for which power exercised was given – Purpose to ensure that critical skills are retained in the country – Decision was lawful and rational – Application for review dismissed – Immigration Act 13 of 2002, s 19(4).

Facts: Mr Kingscott (applicant) is a candidate engineer and applied to have his General Work Visa changed to a Critical Skills Visa (CSV) contemplated in section 19(4) of the Immigration Act 13 of 2002. His application was rejected and he appealed to the Director-General who rejected the appeal. The applicant then lodged a further appeal to the Minister. The Minister dismissed his appeal and reasoned that in terms of the Critical Skills List under the category “Engineering”, no provision is made for candidate engineers. A critical skills work visa contemplated in section 19(4) of the Immigration Act must be in line with the content of the Critical Skills List and for an applicant who is registered as a professional engineer.


Application: The applicant seeks to review and set aside the decision taken by the Minister and that the court order the Minister to issue the applicant with a CSV, alternatively, that the application for the CSV be remitted back to the Minister for reconsideration. Counsel for the Minister invited the court to obiter deal with what appears to be a growing scourge in the engineering profession where candidate engineers perform the work unsupervised and for a long period of time. A candidate engineer is not allowed to work unsupervised. See the discussion from para [10].


Discussion: It is clear from the text of section 19(4) that exceptional skills or qualifications are contemplated. A candidate engineer cannot be seen as an individual possessed with exceptional skills or qualifications. A candidate engineer, which is what the applicant was registered as, cannot be said to be a greater than usual engineer. A candidate engineer cannot work alone without supervision. A candidate engineer is not a skill contemplated in section 19(4). The applicant alleged under oath that he was employed as a Manufacturing Manager. This being an attempt to bring himself within the list of critical skills. However, the contract of employment reveals that OE Bearings (Pty) Ltd employed him as a Production and Design Engineer and not a Manufacturing Manager. A Manufacturing Manager contemplated in the list must be a professional engineer and not a candidate engineer.


Findings: When the Minister concluded that, based on the Engineering Council of South Africa registration category, the applicant lacked the necessary critical skills, the Minister was not materially influenced by any error of law. The decision to dismiss the application for CSV cannot by stretch of any imagination be unlawful nor unconstitutional. The Minister did not act irrationally since his decision is related to the purpose for which the power exercised was given. The purpose is to ensure that critical skills are retained in the Republic of South Africa. Where a skill is not critical, there is no purpose served to retain such a skill. The means used by the Minister to establish if the applicant was registered as a professional engineer is one that is rationally connected to the purpose of section 19(4) of the Immigration Act. The decision to dismiss the CSV application was taken on a sound legal basis and it is not arbitrary nor capricious. The decision does not offend the principle of legality since it is lawful and rational.


Order: The application for review is dismissed. The applicant is to pay the costs of this application on a party and party scale taxable or to be settled at scale B.

MOSHOANA J

Kingscott v Minister of Home Affairs [2024] ZAGPPHC 1127

5 November 2024

MOSHOANA J

IMMIGRATION – Permanent residence – Special circumstances Mother and two children from Angola – One child with cerebral palsy and needing medical care – Refusal by minister – No indication from reasons that the children’s rights taken into account – Decision set aside on grounds that he failed to consider relevant information – Decision not substituted – Court not equipped to give proper consideration to what is a policy-laden decision to make – Matter remitted to minister for reconsideration – Immigration Act 13 of 2002, s 31(2)(b).

Facts: S was born in 2007 in Luanda, Angola and is approximately 17 years of age. As a result of severe dystonic spastic cerebral palsy, he is unable to walk, cannot talk and cannot take care of himself. Ms E was in a long-term relationship with S’s father, SM. The family came to South Africa in 2013. P is S’s minor sister. They entered the country using visitors’ visas which expired in 2014. The reason they came to South Africa was to seek the medical care that S required. Shortly after they arrived in South Africa, Mr M returned to Angola. Mr M subsequently stopped sending money and cut ties with his wife and children, leaving Ms E as an impoverished single parent. She approached the Department of Home Affairs to apply for a medical treatment visa for S, but was informed that the applicants would have to do so from Angola. For various reasons, including both S’s health and the expense, they did not do so. The applicants have remained in South Africa unlawfully since the expiration of their visitors’ visas.


Application: The applicants sought a special exemption for permanent residence under section 31(2)(b) of the Immigration Act 13 of 2002. The respondent (the Minister) informed the applicants that having carefully considered all the information at his disposal he could not find special circumstances which would justify the granting of permanent residence to them pursuant to section 31(2)(b) of the Immigration Act. This refusal is the subject matter of this review application.


Discussion: The Minister is empowered to grant a permanent residence exemption when special circumstances exist that justify such decision. The primary exceptional circumstance relied on to obtain a ministerial exemption stems from S’s condition and his need to receive specialised treatment in South Africa. It was stated in the application that S’s condition would severely deteriorate were he no longer to have access to treatment at the Friends Centre and Red Cross. In the refusal the Minister mentioned the economic situation South Africa is facing and the high rate of unemployment amongst our citizens and permanent residents, and further that the responsibility for Ms E lay with her country of origin, Angola. It was contended that the Minister was exercising a public power concerning a disabled child in South Africa and as such he was required to treat S’s best interests as of paramount importance. The consequences for S if he returned to Angola were so harsh, and the burden on South Africa, if he remained, were so negligible that the decision could not be found to be reasonable, rational or constitutional.


Findings: There is no indication from the reasons furnished that S and P’s rights as children were taken into account. On the totality of the evidence presented before this court, the inescapable conclusion is that the Minister failed to consider the impact of his decision on S and P with reference to their rights encapsulated under section 28 (children) of the Constitution read with section 36 (limitation of rights) of the Constitution and the relevant provisions of the Children's Act 38 of 2005. Consequently, the Minister's decision must be reviewed and set aside on the grounds that he failed to consider relevant information under section 6(2)(e)(iii) of the Promotion of Administrative Justice Act 3 of 2000. As regards substitution of the Minister’s decision, were the court to be careless in assuming powers bestowed on the Minister, especially in the context of S’s medical condition, it may well create a ground for permanent residence carved as an exemption that was not contemplated by the Legislature. The implications require careful consideration, more so, because it may set some sort of precedent. The court is not equipped to give proper consideration to what ultimately is a policy-laden decision to make.


Order: The Minister's decision is reviewed and set aside and the matter remitted to the Minister for reconsideration in the light of this judgment and to do so within a period of six months. There is no order as to costs.

BAWA AJ

CE v Minister of Home Affairs [2024] ZAWCHC 286

7 October 2024

BAWA AJ

IMMIGRATION – Asylum – Interdicting deportation – Pending constitutional challenge – Interviews at Refugee Reception Office – Contended that questions limited to condonation and procedure – Not issue of persecution in country of origin – Argued that there is high refusal rate – Respondents interdicted from deporting foreign nationals who have indicated intention to apply for asylum – Interdict to endure pending determination of part B – Refugee Act 130 of 1998, s 21(1)(b).

Facts: Asylum seekers who wish to approach a Refugee Reception Office (RRO) to apply for asylum must first obtain a so-called appointment slip to do so. This process is not regulated by law and requires the asylum seeker to return in six to eight months. When, eventually, the asylum seeker returns and is granted access to the RRO, the first interview they receive is held by immigration officers in terms of section 21(1B) of the Refugees Act 130 of 1998 read with Regulations 8(1)(c)(i), 8(2), 8(3) and 8(4). According to the Scalabrini Centre, the interview is limited to questions of condonation and procedure and the immigration officers do not apply their minds to the fundamental question of what persecution the asylum seeker will face if returned to their country of origin. After the immigration officers find that an asylum seeker has failed his or her interview, the asylum seeker is arrested, detained, and brought before a court to initiate the deportation process.


Application: The Scalabrini Centre submits that the effect of the challenged provisions is that almost all new asylum seekers attending on RROs are refused the right to apply for asylum and are either arrested for deportation or are ordered to depart South Africa. Almost no new asylum applicants are, in fact, attending on RROs, since they have become aware that such attendance amounts, in practice, to being expelled from South Africa. Pending a constitutional challenge to the provisions, the Centre seeks to interdict Home Affairs from deporting any foreign national who has indicated an intention to seek asylum, unless and until their asylum application has been finally rejected on its merits.


Discussion: The Centre submits that it has at the very least, prima facie prospects of success in the main application; in fact, it submits that it has very strong and clear prospects of success. In support of its prima facie case for interim relief the Centre submit that the challenged provisions fall to be declared to be unconstitutional as: first, the very concept underpinning the challenged provisions – that is, that asylum seekers can be disbarred from the refugee system solely due to their adverse immigration status, without any consideration of the merits of the asylum seeker’s claim – is an unacceptable and unjustifiable violation of the right to non-refoulement, the Constitution, and international law; and second: that the concept of disbarment is irrational, inasmuch as it serves no legitimate government purpose. The Centre relies heavily on one of its own cases before the Constitutional Court: Scalabrini Centre v Minister of Home Affairs [2023] ZACC 45. The respondents argued that in Ashebo v Minister of Home Affairs [2023] ZACC 16 the Constitutional Court found that the challenged provisions did not offend the principle of non-refoulement.


Findings: The court has not had the benefit of full argument in relation to the Constitutional challenge itself, and is in no position to comment on whether or not the Constitutional Court may have incorrectly read certain provisions of the United Nations Convention Relating to the Status of Refugees and thereby incorrectly concluded that the challenged provisions do not offend the principle of non-refoulement. The Centre has failed to convince the court “in the clearest terms” that it can disregard the separation of powers between the judiciary and the executive and restrain the respondents from implementing the challenged provisions, albeit on an interim basis. However, the respondents agree to an order interdicting them from deporting any foreign national who has evinced an intention to seek asylum until such time as his or her application is determined on the merits, pending the determination of the relief in the main case.

* Note at paras [58]-[90] the court’s displeasure at the conduct of the litigation.


Order: The respondents are interdicted from initiating any process to deport any foreign national present in the Republic in the event that such foreign national has indicated an intention to make an application for asylum in terms of section 21(1)(b) of the Refugees Act 130 of 1998. This interdict is to endure pending the determination by the High Court of the part B relief sought in this application. The costs incurred in seeking the interim relief are to be costs in the cause of the main application.

MANCA AJ

Scalabrini Centre of Cape Town v Minister of Home Affairs [2024] ZAWCHC 263

13 September 2024

MANCA AJ

IMMIGRATION – Asylum – Temporary asylum seeker permit – Undocumented foreigner – Visitor’s visa expired – Unchallenged court orders remanding applicant in custody – All orders of court must be obeyed until properly set aside – Remedy available to applicant affording him same relief sought in of notice of motion – Relief sought is incompetent and cannot be granted – Application for release of applicant is unsuccessful – Lawfully detained in terms of extant court order – Refugees Act 130 of 1998.

Facts and issue: This application is premised on the provisions of section 22(4) of the Refugees Act 130 of 1998; under this relief the applicant seeks an order compelling the respondents to issue him with a temporal Asylum Permit, pending finalization of the Asylum application. The applicant is foreign national of Mozambican discern. He came into this country in May 2024 through Lebombo Border which is between South Africa and Mozambique. According to him he had a valid passport or travel documents that would allow him to stay in this country until 19th June 2024. His travel document is not part of the papers.


Discussion: The applicant is an undocumented foreigner of Mozambican discern. In the questionnaire the applicant declared that he entered the Republic in 1996 for purposes of study. He was deported in Gauteng Province. It is not gainsaid that the applicant entered the Republic by foot in 2010. On 11th October 2023 he entered South Africa through Lebombo Border and there is no record of his departure. He came again to this country with a Visitor’s Visa which expired on 17th June 2024. It is important to note that the applicant came into this country as a visitor and not for any other reason for a specified period of time. It is further common cause that the applicant failed to report within 5 days of his entry into the Republic. The applicant’s in his papers does not contend that the decisions by the Magistrates Court were set aside. The decisions are still extant and are not challenged herein. An application for the release of the applicant from custody was suitably made. An application for the release of the application from custody is quintessentially an application challenging the applicant’s detention. It is now common cause that challenge was not successful and applicant’s application for him to be released was refused.


Findings: All orders of court whether correctly or incorrectly granted have to be obeyed until they are properly set aside. The remedy available to the applicant is to approach a court of competent jurisdiction in appropriate proceedings for an order setting aside the court order of the Magistrates court. That is quintessentially the remedy available to the applicant affording him the same relief sought in paragraphs 4 and 5 of notice of motion. The present proceedings are not proceedings challenging or seeking to set aside the court order of the Magistrates Court. The relief sought in paragraphs 4 and 5 of the notice of motion are incompetent and cannot be granted. The application concerning the release of the applicant is unsuccessful. The applicant is lawfully detained in terms of the orders of the Magistrates Court which have not been set aside.


Order: The application is dismissed with costs.

EM v Minister of Home Affairs [2024] ZAECMHC 65

27 August 2024

ZONO AJ

IMMIGRATION – Asylum seeker – Detention and deportation – Lawfulness – Previously held valid temporary permits – Two applications – Deportation prohibited until finalisation of asylum application – Failure to renew permit – Detained pursuant to court order – First applicant released on conditions – Second applicant’s application was denied – No judicial review application – Detention remains lawful until service of review application – Refugees Act 130 of 1998.

Facts and issue: Both the applicants, Mr Goodluck and Mr Boamah, have brought urgent applications for interdicts against the various respondents for their release from detention, as well as prohibiting their deportation from the Republic of South Africa. In both applications, the applicants are asserting that they have already applied for asylum and have both previously been granted temporary asylum seeker permits in terms of section 22 of the Refugees Act 130 of 1998. Boamah allegedly failed to apply for a renewal of this visa, whilst in Goodluck’s case, his asylum application had been refused and was, according to him, subject to judicial review.


Boamah application: The applicant alleges that he was unable to renew his asylum seeker permit due to the covid-19 outbreak. The applicant was sentenced and convicted by the Magistrate Court. The respondents are detaining the applicant pursuant to the order of the Magistrates’ Court, which order is binding until set aside. However, the court has not been asked to sit as a court of review or appeal for purposes of setting aside the conviction and sentencing in this regard. Furthermore, the non-joinder of the Minister of Correction as well as the non-joinder of other interested parties such as the NPA and the Magistrate, in any event would have barred the court from deciding the issue. As such, even though the detention is unlawful by virtue of the provisions of the Refugee’s Act, this court cannot order the respondents to contravene a binding order of the Magistrate’s Court.


Goodluck application: The applicant had to bring an urgent application before this court for his release from detention and prohibiting his deportation pending the outcome of judicial review proceedings. Despite confirming that that the temporary permit was not issued and that the record was not provided, the applicant has failed to indicate any steps taken in terms of the Uniform Rules to enforce his rights in this regard. The applicant has not brought a judicial review application. Until the existence of such an application has been conclusively established or, alternatively, until an application for review in terms of section 24 (5)(b) (if applicable) of the Refugee’s Act or an application for judicial review is brought, the applicant remains an illegal immigrant and subject to criminal proceedings per the Immigration Act.


Order: In terms of Boamah, the respondents are directed to release the applicant from detention once the impediment to such release created by the order for conviction and sentencing of the Magistrate Court ceases to exist; alternatively on the 24th of July 2024; whichever event occurs the earliest. In terms of Goodluck, the applicant’s detention remains lawful until service of the review application, alternatively a new review application, on the respondents and State Attorney.

Boamah v Minister of Home Affairs [2024] ZAGPJHC 694

22 July 2024

STRYDOM AJ

IMMIGRATION – Asylum – Interdicting deportation – Application for asylum denied – Currently in detention awaiting deportation – Alleging he may be subjected to persecution if deported – Invokes principle of non-refoulement – Until applicant’s refugee status has been finally determined, principle of non-refoulement protects them from deportation – Respondents ordered to refrain from deporting applicant until his status has been determined and finalised – Immigration Act 13 of 2002, s 34(1).

Facts and issue: The applicant, a Nigerian national, entered the Republic of South Africa with an intention to apply for asylum. He left Nigeria due to the constant terrorist attacks by unknown gunmen, who invaded their community. Having entered the country, he was issued an asylum visa which allowed him to apply for asylum. The application was denied, and he was arrested in terms of section 34(1) of the Immigration Act. He is currently in detention at the Lindela Repatriation Centre, awaiting deportation to Nigeria. The applicant seeks that the respondents be interdicted from deporting him until his status under the Refugees Act has been lawfully and finally determined.


Discussion: It is the applicant’s claim that he cannot be deported to his country of origin because he remains an asylum seeker as his refugee status has not been finally determined. In defending himself against the imminent deportation by the respondents, the applicant invokes the principle of non-refoulement. He alleges that even though his application for asylum was rejected, his refugee status has not been fully finalised because he has not exhausted all his remedies. The law as it stands is that until an applicant’s refugee status has been finally determined, the principle of non-refoulement protects her/him from deportation. The relief sought by the applicant not to be deported at this stage, holds sway. The applicant has evinced an intention to apply for asylum. There is ample, uncontroverted evidence, that points to the fact that the applicant’s refugee status has not been finally determined. He is protected by the principle of non-refoulement from deportation until the process for determining his status has been completed.


Findings and order: It is declared that the applicant is, in terms of section 2 of the Refugees Act 130 of 1998, entitled to remain lawfully in the Republic of South Africa. The respondents are ordered to refrain from deporting the applicant until his status has been determined and finalised.

Osaleye v Minister of Home Affairs [2024] ZAGPPHC 586

28 June 2024

KUBUSHI J

IMMIGRATION – Asylum – Interdicting deportation – Pending determination of asylum applications – Alleged risk of imminent deportation – Deprivation of liberty – Applicants assert entitlement to apply for refugee status – Detainee’s who express desire to apply for asylum must be given opportunity to do so – Applicants may not be deported until they have an opportunity of showing good cause – If such good cause shown, until application for asylum has been finally determined – Refugee Act 130 of 1998, s 21(1B).

Facts and issue: When the urgent roll was published, it contained 51 matters. In 21 of those matters, either the Minister or the Department of Home Affairs was cited as a respondent. Nineteen of the matters concerned applications by asylum seekers who are currently in detention at the Lindela Holding Facility. They approached court urgently essentially seeking orders interdicting their deportation from South Africa pending the final determination of their asylum applications.


Discussion: These 19 applications are spearheaded by three firms of attorneys. Save for differences in personal details, the notices of motion and founding affidavits in each cluster of cases are otherwise virtually identical. The applications all have one common feature, they all say that the applicants are being detained at Lindela, and they are at risk of imminent deportation. There has been no endeavour by the respective firms of attorneys to draw attention to the virtually identical nature of these cases. Where Practice Notes were filed, there is no reference to any of the other virtually identical matters initiated by the same firm of attorneys. This ought to have been done to ensure practical and expeditious resolution of such matters on an urgent basis. All the cases concerned involve a deprivation of liberty. That makes them inherently urgent. Given the importance of the right to individual liberty, an applicant seeking release from detention need do no more than allege that he or she is being unlawfully detained by the respondent. The onus then shifts to the respondent to justify the detention. The subject of the applications concerns the rights of refugees.


Findings: Those who are detained and express a desire to apply for asylum must be given the opportunity to do so. Moreover, such persons are entitled to assistance from the Department. In none of the cases has the Department filed an answering affidavit, let alone a notice of opposition. There are some 19 matters before court. Some have been settled. Some have been withdrawn and, in the remainder, there has been no opposition. In relation to those matters which have not been settled, the court made orders that are consistent with those that have been settled. Each case requires a separate order. [Kindly see para [45] and below for full order].

Bakala v Minister of Home Affairs [2024] ZAGPJHC 599

21 June 2024

MARCUS AJ

IMMIGRATION – Prohibited persons – Substitution of decision – Whether court should substitute decisions by respondents – Exceptional circumstances in support of substitution – Concession by respondents to review and set aside their decisions – Stance indicates a commitment by respondents to want to reconsider decisions afresh – Indicates a willingness to deal with applicant’s applications fairly – Decisions reviewed and set aside – Matter remitted back to respondents for reconsideration – Immigration Act 13 of 2002, s 29.

Facts: The applicant was refused a visa application and subsequently declared a prohibited person in terms of section 29 of the Immigration Act 13 of 2002. The relief which the applicant sought to have reviewed and set aside is the decision of the Director-General of Home Affairs refusing to declare the applicant not to be a prohibited person. The applicant also sought to review and set aside the decision of the Minister of Home Affairs dismissing the applicant’s internal review lodged in terms of section 8(6) of the Immigration Act. At the commencement of the hearing of the application, the respondents conceded that their decisions should be reviewed and set aside, and they tendered the costs thereof.


Application: The applicant launched an application to review and set aside two decisions of the respondents, and for the court to substitute these decisions of the respondents. The first decision is the refusal by the respondent that the applicant is not a prohibited person. The second decision is that of the second respondent to dismiss the applicant’s internal review. The only issue for determination is whether the court should substitute the decisions by the respondents. The applicant submitted that there are exceptional circumstances in support of substitution. The respondents have taken a perfunctory stance to refuse all the applicant’s applications that have come before them, and that it would be a waste of time to order the relevant functionary to reconsider them. To remit the matter to the relevant functionary would delay the matter and cause the applicant unjustifiable prejudice.


Discussion: For a court to substitute the decisions of the respondents, it must be just and equitable in the context of such exceptional circumstances which prevail at the time. The respondents indicated a commitment to want to reconsider the decisions afresh. This, together with the concession of the review and setting aside of their decisions at the commencement of the proceedings, indicates a willingness on the part of the respondents to deal with the applicant’s applications fairly. For these reasons, the decisions must be remitted back to the respondents for reconsideration. To ensure that the respondents perform their functions and decide on the applicant’s applications, it is best to put time frames within which the respondents must make their decisions. The court is not in a better position than the respondents to substitute their decisions, that such applications are processed in a polycentric or policy-laden environment, and the respondents will be best suited to consider such applications.


Findings: The matter should be remitted back to the respondents for reconsideration afresh. The respondents’ decisions were not a foregone conclusion, and they will not be a foregone conclusion when reconsidered by the respondents as they are public officials who owe the applicant a duty to consider his applications fairly and objectively. There was no factual allegation that the respondents’ officials acted maliciously or otherwise when dealing with the decisions of the applicant. There does not appear to be an "exceptional case" put forward by the applicant to justify substitution or correction in hoc casu. In the circumstances, it is appropriate to set aside the decisions of the respondents, and to remit the matter back to the respondents for reconsideration of the applications of the applicant within a stipulated time frame.


Order: The decision of the Director-General of the Department of Home Affairs is reviewed and set aside. The decision of the Minister of Home Affairs is reviewed and set aside. The decisions are remitted to the respondents for reconsideration.

PITT AJ

Omotoso v Director-General, Home Affairs [2024] 1305-23 (ECG)

11 June 2024

PITT AJ

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