Judge told asylum case exposes need for gender-sensitive refugee process

A legal challenge in the Gauteng High Court in Pretoria argues that the refusal of asylum to a Congolese woman who survived sustained sexual violence exposes systemic failures in South Africa’s refugee adjudication system and the need for a gender-sensitive approach.

What happened

The woman, from South Kivu in the Democratic Republic of Congo, says she survived sustained sexual violence by armed forces in her home region and further sexual exploitation while fleeing to safety. She arrived in South Africa around 2006/2007 and sought protection.

According to Lawyers for Human Rights (LHR) and the Initiative for Strategic Litigation in Africa (ISLA), she presented her account to officials at the Department of Home Affairs in Durban, returned with someone to help communicate, and later repeated her story at interviews and before the Refugee Appeals Authority. The Refugee Appeals Authority found her story not credible and refused asylum.

Legal challenge and arguments

ISLA and LHR have approached the Gauteng High Court to review and set aside the Refugee Appeals Authority’s decision. They will argue that the authority failed to properly assess the sexual violence she experienced as gender-based persecution within the meaning of the Refugees Act and applicable international law.

The organisations say the decision penalised the woman for inconsistencies in her account and that doing so “is the replication of the harm inflicted on her.” They contend the asylum system applied a credibility standard that was not designed with survivors of gender-based violence in mind.

“The woman gathered her children. And she fled not because she chose to leave, but because remaining was incompatible with life,” LHR explained.

Systemic concerns raised

ISLA and LHR say her case illustrates broader structural problems: an absence of gender-sensitive asylum adjudication, a credibility trap that penalises trauma-affected survivors, and a failure to recognise gender-based violence as persecution.

They note that gender-based persecution, including sexual violence by armed actors in conflict, is a recognised form of persecution under the Refugees Act. They also cited the Maputo Protocol, to which South Africa was a signatory, saying it obliged the state to protect asylum-seeking women, refugees and internally displaced persons against all forms of violence, including rape.

Potential consequences and calls for review

ISLA and LHR warned that returning the woman to her country of origin would not be a mere administrative outcome but could be a life-threatening outcome. They said South Africa had not applied the relevant legal frameworks to her case and that trauma can shape how survivors tell their stories.

“She was not less credible because trauma shaped how she tells her story. She was, if anything, more in need of protection because of what she has survived and because of what would happen to her if she was returned,” the two bodies said.

The court challenge asks the Gauteng High Court to examine both the Refugee Appeals Authority’s decision in this case and broader, systematic failures by refugee officials in dealing with women who flee war and sexual violence.