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[2011] ZAGPJHC 52
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Fikre v Minister of Home Affairs and Another (9981/2011) [2011] ZAGPJHC 52 (9 June 2011)
IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO 9981/2011
DATE:09/06/2011
REPORTABLE:
YES
OF INTEREST TO
OTHER JUDGES: YES
REVISED.
9
June 2011 …………..……………………...
SIGNATURE
In the
matter between
ESTHU MARKOS
FIKRE
............................................................
APPLICANT
and
MINISTER
OF HOME AFFAIRS
...............................................
FIRST
RESPONDENT
THE
DIRECTOR- GENERAL
DEPARTMENT
OF HOME AFFAIRS
..................................
SECOND
RESPONDENT
SUMMARY
Refugee –
detention – review of in terms of s 29(1) of Act 130 of 1998 –
nature of review proceedings –
sui generis
procedure –
neither separate application nor akin to automatic review in terms of
s 302 of Act 51 of 1977.
‘Reasonable
and justifiable’ grounds for extending detention –
absence of – no justification shown for extension
sought -
immediate release ordered.
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
VAN OOSTEN J
[1]
This is a review of
the applicant’s detention under the provisions of s 29 (1) of
the Refugees Act 130 of 1998 (the Act).
The applicant is an Ethiopian
citizen, who fled from Ethiopia owing to fears of persecution by
reason of his political opinion.
He applied for political asylum in
2006, which was rejected in 2009. He was arrested on and has been in
detention since 10 September
2010. He is presently being held at
Lindela Holding Facility in Krugersdorp. On 8 March 2011 the
applicant launched an urgent application
to this court for his
release from detention. It was enrolled for hearing on 15 March 2011
before Mbha J who postponed the application
to 18 March 2011 and
directed time limits for the filing of further affidavits. Those were
filed and the application came up for
hearing before Spilg J. Two
further adjournments of the matter followed in terms of orders
granting certain interim relief and
facilitating further procedural
steps. The last order was made on
11 May 2011 in terms of
which Spilg J directed that the detention of
the applicant
be reviewed under the provisions of s 29 (1) of the Act by a
judge of the South Gauteng High Court designated by the Judge
President.
The learned judge further directed time limits within
which the parties were to file supplementary affidavits.
Supplementary affidavits
by the applicant and on behalf of the
respondents were subsequently filed. On 1 June 2011 I was appointed
to review the applicant’s
detention by the Judge President of
this division pursuant to the order of Spilg J. In collaboration with
the parties the review
was enrolled for hearing on 6 June 2011.
Having heard argument I ordered the immediate release of the
applicant in terms of the
order at the end of this judgment. What
follows are my reasons for the order.
[2] Before considering the merits of the review it is apposite to
reflect briefly on the nature of the review procedure which is
an
aspect that has given rise to considerable confusion. There are to
date no cases in which the nature of the procedure has been
considered. The procedure is novel in its nature and as it derives
its existence from the provisions of s 29 (1) of the Act, I
deem it
appropriate to quote them in full:
‘
29 Restriction of detention
(1) No person may be detained in terms of this Act for a longer
period than is reasonable and justifiable and any detention exceeding
30 days must be reviewed immediately by a judge of the High Court of
the provincial division in whose area of jurisdiction the
person is
detained, designated by the Judge President of that division for that
purpose and such detention must be reviewed in
this manner
immediately after the expiry of every subsequent period of 30 days.’
Counsel for the respondents submitted that the review provided for is
akin
inter alia
to an automatic review in terms of
s 302
of
the
Criminal Procedure Act 51 of 1977
, which is determined by the
reviewing judge in chambers. I do not agree. Section 29 (1) of the
Act provides for a
sui generis
procedure which is a review of
the detention of the refugee for a further period and therefore
cannot be classified as a review
of either the prior proceedings or
the judgment in terms of which the review was ordered. In essence the
purpose of the s 29 (1)
is plainly to ensure judicial oversight as to
the refugee’s detention and the continuation thereof. The
review consequently
does not constitute an application on its own: in
the present matter supplementary affidavits were filed and the matter
simply
proceeded before me as the judge designated by the Judge
President for in effect, the determination of one single issue only
which
is whether the applicant’s detention should be extended.
[3] This brings me to the supplementary affidavits filed for purposes
of the review and the question arising for determination
whether
“reasonable and justifiable” reasons exist for an
extension of the applicant’s detention for a further
period of
30 days or less (Cf
De Lange v Smuts NO and Others
[1998] ZACC 6
;
1998 (3) SA
785
(CC) para [23]). It is salutary to bear in mind that as Van
Reenen J held in
Kiliko and Others v Minister of Home Affairs and
Others
2006 (4) SA 114
(C) para [28]:
‘
The State, under international law, is obliged to respect
the basic rights of any foreigner who has entered its territory, and
any
such person is under the South African Constitution, entitled to
all the fundamental rights entrenched in the Bill of Rights, save
those expressly restricted to South African citizens.’
[4] The salient background facts relevant to the present review are
briefly the following. The applicant applied for asylum on
21 August
2006 and he was issued with a permit in terms of s 22 of the Act. On
9 January 2009 his asylum application was rejected
by a Refugee
Status Determination Officer. The applicant took no further steps
either to appeal or review the decision and he was
eventually on 10
September 2010, arrested as an illegal foreigner. On 3 March 2011 the
applicant lodged an application for condonation
for the late noting
of an appeal against the rejection of his asylum application, with
the Refugee Appeal Board. The condonation
application Spilg J held
(see para 82 of the judgment) “resurrected the Applicant’s
rights under the
Refugees Act not to
be deported until the exhaustion
of all his appeal and review remedies” on the basis that “an
application for condonation
for the late filing of an appeal is
expressly recognised in Rule 6 of the Refugee Appeal Board Rules of
2003”. Although I
have difficulty in aligning myself with the
finding and reasoning of the learned judge I am for purposes of this
review, bound
by it as I am not sitting as a court of appeal or
review on the correctness of the judgment. The finding however, is
pivotal to
the present review: the respondents seek an extension for
a further period of 30 days in order to enable the Refugee Appeal
Board
to determine the applicant’s condonation application.
[5] The respondents have put preciously little before me in order to
enable me to exercise my discretion. In the supplementary
affidavit
filed on behalf of the respondents, the Deputy Director:
Directorate-Deportation Department of Home Affairs who is also
the
head of Lindela where the applicant is currently detained, states
that his attempt on 11 May 2011 to ascertain the status of
the
applicant’s application for condonation was met by a promise
made by the chairperson of the Refugee Appeal Board to investigate
this aspect and to revert to him on the outcome thereof. Nothing has
been put before me concerning either the outcome of the proposed
enquiry or for that matter, the status of the condonation application
at this stage, almost a month later.
[6] In a nutshell this court is now urged to extend the applicant’s
detention on the simple basis that the condonation application
is
pending but with no indication whatsoever as to when it will likely
be finalised. This is an unsatisfactory state of affairs
when regard
is had to the long chequered history of this matter and especially
where the freedom of an asylum seeker is at stake
(Cf
Arse v
Minister of Home Affairs and Others
2010 (7) BCLR 640
(SCA) para
[10]). Counsel for the respondents correctly submitted that the
respondents cannot be blamed for the absence of this
information as
the Refugee Appeal Board is an autonomous Board created by statute (s
12 of the Act) and therefore not falling under
the control of the
respondents. But, as counsel for the applicant rightly retorted,
nothing prevents the respondents from their
side exerting some form
of pressure on the Board to expedite matters. Be that as it may, I am
unable at this stage to find that
any reason exists for extending the
applicant’s detention. For these reasons the applicants’
continued detention cannot
be justified and I ordered his immediate
release.
[7] It remains to mention two further aspects: counsel for the
applicant correctly submitted that the applicant’s release
should be accompanied by the issuing to him of an interim refugee
permit in terms of s 22 of the Act as a safeguard to protect
him and
others from being exposed to the usual dire consequences that may
flow from refugee status without a permit. Finally, as
to costs, the
award thereof at this stage will be premature as the eventual outcome
of the condonation application may well have
a material bearing on
the decision concerning liability for costs.
[8]
In the result I make the following order:
1.
The applicant must be
released forthwith.
2. The respondents are ordered to immediately
re-issue the applicant with an asylum seeker’s permit in
accordance with
section 22
of the
Refugees Act 130 of 1998
, such
permit to be valid until the applicant’s application for
condonation has been finalised.
3
. The costs are
reserved.
_________________________
FHD VAN
OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR THE APPLICANT ADV S BUDLENDER
ADV
(MS) I DE VOS
APPLICANT’S
ATTORNEYS LAWYERS FOR HUMAN RIGHTS
COUNSEL
FOR THE RESPONDENTS ADV (MS) N MANAKA
RESPONDENTS’
ATTORNEYS THE STATE ATTORNEY
DATE
OF HEARING AND ORDER 6 JUNE 2011
DATE
OF REASONS FOR JUDGMENT 9 JUNE 2011