Judges split on Concourt asylum ruling

A Constitutional Court ruling from July that asylum seekers may not be deported before accessing the asylum system has caused confusion in the Gauteng High Court. Two judges recently handed down orders with conflicting interpretations of that ruling.

Gauteng Judge President Aubrey Ledwaba has now convened a full bench court to determine how judges should approach cases involving undocumented asylum seekers who are detained and facing deportation.

Ledwaba also imposed a moratorium on hearing affected applications in Gauteng, until the full court meets.

The Constitutional Court had struck down provisions of the Refugees Act that required asylum seekers to show valid or compelling reasons why they were in the country without a transit visa. Under those provisions, they could be deported without their asylum applications being considered.

In August, following the apex court judgment, Gauteng High Court Judge Mandlenkosi Motha dealt with 21 applications from undocumented Ethiopian, Congolese and Nigerian nationals detained at the Lindela Repatriation Centre.

They claimed they wished to apply for asylum but had not yet been interviewed by a refugee reception officer.

Motha did not release them. Instead, he ordered Home Affairs to interview them at Lindela or transport them to the nearest refugee reception office.

On 14 July, Judge Stuart Wilson ordered the immediate release of a detained Ethiopian asylum seeker. In his written reasons handed down on 2 September, he said his ruling was in line with the apex court’s judgment.

Court rolls have been put under strain by related applications in the “aftershock” of March and March’s Abahambe (they must leave) campaign, Motha said in his judgment on 25 August.

Motha said it was the “height of folly” to release undocumented people back into society, still undocumented, to face re-arrest.

He also suggested that the views of March and March and Operation Dudula and “those of ‘the downtrodden members of society’” should be heard in these matters.

Wilson, however, said the Constitutional Court ruling dictated that release from detention must follow immediately after a detainee expressed an intention to apply for asylum. He said the detainees in the matters before Motha should have been released in terms of the law.

Further, he said, Motha’s decision appeared to have been “animated to some degree” by the views of March and March and Dudula, which the court identified with the views of “impoverished and downtrodden members of society”.

Wilson said, “I do not think that the two can be treated as identical. I have my doubts about whether xenophobic organisations have much support among the poor and the vulnerable, most of whom may well strive to avoid the egregious mistake of blaming the poverty they endure on the presence of foreign nationals in South Africa.”

Judge President Ledwaba has referred the issue to a full court, which will sit on 29 October. In his notice, Ledwaba said it was in the interests of “legal certainty” and so that similar cases will be treated alike.

The court will consider whether it is lawful for someone to continue to be detained if they express an intention to apply for asylum, and whether a court can order their continued detention while Home Affairs facilitates access to refugee procedures.

Ledwaba invited interested persons and organisations to apply to be admitted as friends of the court and directed that the notice be brought to the attention of all interested parties, including the Minister of Home Affairs, the Minister of Police, National Director of Public Prosecutions, the Legal Resources Centre, Lawyers for Human Rights, Scalabrini Centre of Cape Town and the United Nations High Commissioner for Refugees.

The ruling by the full court will also impact how such matters are dealt with in courts in other provinces and, depending on the finding, could ultimately end up in the Constitutional Court again.

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Words: Tania Broughton / GroundUp