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[2020] ZAGPJHC 377
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Nwankwo v Minister of Home Affairs and Others; Anyacho and Another v Director General: Department of Home Affairs and Another; Onwuakpa v Director General: Department of Home Affairs and Another (2021/01004; 2021/0013; 2021/0014) [2020] ZAGPJHC 377 (22 September 2020)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
In
re several matters on the urgent court roll 9 to 12 February 2012
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
CASE NUMBER: 2021/01004
In the matter between:
OBINNA FELIX NWANKWO

Applicant
and
THE MINISTER OF HOME AFFAIRS

First Respondent
THE DIRECTOR GENERAL: DEPARTMENT
OF HOME AFFAIRS

Second Respondent
THE DIRECTOR FOR DEPORTATIONS
DEPARTMENT OF HOME AFFAIRS

Third Respondent
THE CHIEF DIRECTOR ASYLUM SEEKER

Fourth Respondent
MANAGEMENT: DEPARTMENT OF HOME AFFAIRS
THE ACTING DIRECTOR LINDELA REPATRIATION
CENTRE
Fifth
Respondent
CASE NUMBER: 2021/0013
In the matter between:
OBINNA EDWIN
ANYACHO

First Applicant
SIMON OKECHUKWU JOHN AGBADOM

Second Applicant
and
THE DIRECTOR GENERAL: DEPARTMENT
OF HOME AFFAIRS

First Respondent
THE MINISTER OF HOME
AFFAIRS

Second Respondent
CASE NUMBER: 2021/0014
In the matter between:
UGUCHUKWU RAPHAEL ONWUAKPA

Applicant
and
THE DIRECTOR GENERAL: DEPARTMENT
OF HOME AFFAIRS

First Respondent
THE MINISTER OF HOME
AFFAIRS

Second Respondent
Applications
for the release from detention of asylum seekers; Application for the
release of from detention of applicant for residential
permit; Mwale
v The Minister of Home Affairs and Another Local Division, Port
Elizabeth ZAECPEHC (1982/2020) delivered on 22 September
2020 not
followed.
JUDGMENT
DE VILLIERS, AJ:
Introduction
[1]
In urgent court several asylum-seeking
matters and an immigration matter served before me. I have prepared
one judgment as the principles
overlap. The applicants all seek
release from detention at the Lindela Repatriation Centre where they
are being held pending their
repatriation to their country of origin,
Nigeria. I deal with the immigration matter last. Hence most of the
earlier references
herein are to the asylum-seeking matters. The
state (I refer herein to the respondents as “
the
state
”) avers that all the
applications that served before me are abuses by convicted and
sentenced criminals, convicted and sentenced
for serious drug related
crimes.
[2]
Our treatment of
bona
fide
refugees would stand at the centre
of the judgment visited on us as a humane society. In the cases
before me the Rule of Law, and
the separation of powers (and the role
of the courts) stand central too. Also central in these cases are the
principles about pleading
and proving a case in motion proceedings.
In short, the affidavits are the pleadings and the evidence, and a
party must allege
the legal basis for the relief claimed (or opposed)
and allege and prove the primary facts for such application of the
law. Conclusions
to be drawn (and facts inferred) from attachments to
the affidavits must be addressed in the affidavits themselves. I
simply refer
to fuller discussions in cases such as
MEC
for Health,
Gauteng
v 3P Consulting (Pty) Ltd
2012 (2) SA
542
(SCA) para 28 which approved the summary of the law in
Swissborough Diamond Mines (Pty) Ltd and
Others v Government of the Republic of South Africa and Others
1999 (2) SA 279
(T) at 323F-324C and in
Prokureursorde
van Transvaal v Kleynhans
1995 (1) SA
839
(T) at 849B. See too
Genesis Medical
Aid Scheme v Registrar, Medical Schemes and Another
2017 (6) SA 1
(CC) para 171 and
National
Director of Public Prosecutions v Phillips and Others
2002 (4) SA 60
(W) para 36. Where I refer below to the duty to allege
and prove a case, I refer to these principles.
[3]
The facts that the applicants need to
allege and proof for their release in essence are limited to alleging
that they are in detention
.
Once
detention has been established, the state must show that the
detention is lawful, or the detainee must be released. See the

judgment by the Supreme Court of Appeal (“
the
SCA
”)
Arse
v Minister of Home Affairs
2012 (4) SA
544
(SCA) para 5 and the cases collected there. See too the
Constitutional Court (“
the
ConCourt”)
judgment in
Zealand
v Minister for Justice and Constitutional Development and Another
[2008] ZACC 3
;
2008 (4) SA 458
(CC) para 24. As would appear from
Arse
,
habeas corpus
and the
interdictum de homine libero
exhibendo
are ingrained parts of our
law. Our Common Law has Constitutional application too. See section
35(2)(d) of the
Constitution
.
[1]
This summary of the law has an important
consequence: It is with respect irreconcilable with a finding that
such an applicant must
first make out a case that she or he is say a
bona fide
asylum seeker (with prospects of success), before she or he becomes
entitled to seek release from detention.
[2]
Potential
grounds for detention
[4]
These are not matters where the applicants
are in custody awaiting trial, or are still in prison serving their
sentences of imprisonment.
The applicants aver that they have served
their sentences, and were released, only to be detained again, over
periods now stretching
to a few months. Their sentences were reduced
because of presidential pardons prior to their stipulated dates for
release. Some
seem to have been released on parole. The fact is that
they are in detention and that the state must justify the detention.
In
the past such detention could potentially have been justified
under section 34(1) of the
Immigration
Act
13 of 2002 (“
the
Immigration Act
&rdquo
;).
[3]
There are two problems with this approach. One,
the
Refugees Act
130 of 1998 (“
the
Refugees Act
&rdquo
;)
trumps the
Immigration Act in
asylum matters, as referred to more
fully below. Two, in
Lawyers for Human
Rights v Minister of Home Affairs and Others
2017 (5) SA 480
(CC) the ConCourt issued this order (underlining
added):
“
2.
Section
34(1)(b)
and (d)
of the
Immigration Act 13 of 2002
is declared to be inconsistent with
ss 12(1) and 35(2)(d) of the Constitution and therefore invalid.
3.
The declaration of invalidity is suspended for 24 months from the
date of this order
to enable Parliament to correct the defect.
4.
Pending legislation to be enacted within 24 months or upon the expiry
of this
period,
any illegal foreigner detained under
s 34(1)
of
the
Immigration Act shall
be brought before a court in person within
48 hours from the time of arrest or not later than the first court
day after the expiry
of the 48 hours, if 48 hours expired outside
ordinary court days
.
5. …
6.
In the event of Parliament failing to pass corrective legislation
within 24 months,
the declaration of invalidity shall operate
prospectively
.”
[5]
The ConCourt in
Lawyers
for Human Rights
placed great emphasis
on judicial oversight over detention, and hence demanded that
detainees be brought to court, in person, without
unreasonable delay.
The state would have had to allege and prove compliance with
section
34(1)
of the
Immigration Act, as
read with
Lawyers
for Human Rights
to justify detention.
It did not do so in the cases before me. It appears that
section
34(1)
would no longer be grounds to detain a person without judicial
oversight for more than a very limited period. Once judicial
oversight
commences, the
Refugees Act does
not seem to stipulate any
power on anyone to detain a person thereafter. I had access to an
unreported judgment by Strydom J of
12 October 2020 in
OC
Lawrence v The Minister of Home Affairs and Others
(26145/2020) in this division, where the learned judge held that a
person arrested as an illegal immigrant under
section 34(1)
of the
Immigration Act, is
entitled to an immediate release when brought to
court, because of the effect of
Lawyers
for Human Rights
. This issue was raised
by Windell J in
O A v Minister of Home
Affairs and Others
[2019] ZAGPJHC 470
para 25 as well.
[6]
The
Refugees Act provides
for the other
basis why a non-citizen who seeks asylum, is safe from detention in
our country. See
section 21(4)
of the
Refugees Act (underlining
added):
“
Notwithstanding
any law to the contrary,
no
proceedings may be instituted or continued
against any person
in
respect of his or her unlawful
entry into or
presence
within the Republic
if
-
(a)
such person has applied for asylum in terms of subsection (1)
,
until a decision has been made on the application
and,
where
applicable, such application has been reviewed in terms of
section
24A
or where the applicant exercised his or her right to appeal in
terms of
section 24B
; or
(b)
such person has been granted asylum
.”
[7]
The applications for asylum in the matters
before me, have not reached the stage where decisions have been made
about their eligibility
for asylum.
Section 21(4)
of the
Refugees Act has
a material impact on the treatment of refugees
seeking asylum. Its origins are in international conventions about
the treatment
of refugees which I need not address in any detail this
judgment.
Section 1A
of the
Refugees Act
reflects
that the act must be interpreted in a manner that is
consistent with such conventions and it refers to the Universal
Declaration
of Human Rights, the 1951 Convention Relating to the
Status of Refugees, the 1967 Protocol Relating to the Status of
Refugees,
and the 1969 Organisation of African Union Convention
Governing the Specific Aspects of Refugee Problems in Africa.
[8]
The impact of
section 21(4)
of the of the
Refugees Act (and
the obligations we as a country assumed in the
treatment of refugees as asylum seekers, are profound. The ConCourt
in
Ruta v Minister of Home Affairs
2019 (2) SA 329
(CC) para 33 held that
section 21(4)
, read with
section 2
, must be interpreted to include (underlining added):
“…
that,
apart
from those officially recognised
as refugees and afforded refugee status,
no
applicant
for asylum may be expelled, extradited or returned to any other
country or be subjected to any similar measures
.”
[9]
A such
Ruta
held that the
Refugees Act trumps
the
Immigration Act when
someone
seeks asylum. The
Refugees Act applies
because of the mere fact that
asylum is claimed. I have already referred to the effect of
Arse
and
Zealand.
[10]
Ruta
further
held that under the doctrine of the separation of powers, any
determination about “
who may seek
asylum and who is entitled to refugee status
”
is determined under the
Refugees Act (para
40). Thus, the ConCourt
held in para 43 (footnotes omitted and underlining added):
“
[43]
The
Refugees Act makes
plain principled provision for the reception
and management of asylum seeker applications. The provisions of the
Immigration Act must
thus be read together with and in harmony with
those of the
Refugees Act. This
can readily be done.
Though
an asylum seeker who is in the country unlawfully is an “illegal
foreigner” under the
Immigration Act, and
liable to
deportation
,
the specific
provisions
of the
Refugees Act intercede
to provide imperatively that, notwithstanding that status,
his
or her claim to asylum must first be processed under the
Refugees
Act
>.
That is the meaning of
section 2
of that Act, and it is the meaning
of the two statutes when read together to harmonise with each other
.”
[11]
The ConCourt in
Ruta
expressly
held that this is the position too where asylum seekers enter the
country not through official ports of entry (para 53).
The
Immigration Act only
commences to apply after a proper determination
of an application to seek asylum is completed (para 54).
Ruta
expressly held
that the process is completed once it is completed in terms of
section 24(3)
of the
Refugees Act.
[4
]
That process in
terms of
section 24A
and
24B
is subject to rights of an internal
appeal and internal review. Hence
section 21(4)
affords protection
until the completion of those processes. The ConCourt repeatedly made
the point that the legislated procedures
in the
Refugees Act must
be
completed first before the
Immigration Act commences
to deal with
someone as an illegal foreigner (para 19, 39-41, and especially
43-47, 54, 56 and 59).
Ruta
formulated
questions for consideration in para 14 (footnotes omitted):
“…
An
ancillary question is: does the 15-month delay between Mr Ruta’s
arrival in South Africa in December 2014 and his arrest
in March 2016
bar him from applying for refugee status? More generally, can it be
that a foreigner may arrive and tarry illegally
for months, without
applying for refugee status, and then, when the law catches up,
insist on the right to apply?
…”
[12]
The short answer in
Ruta
is “
no,
delay is not a bar to a belated application, and yes, he or she can
wait to be caught before commencing the process
”.
The ConCourt upheld the position that simply claiming asylum is
sufficient to grant the applicant access to the application
process
stipulated in the
Refugees Act.
[13
]
The last point to reflect on is the
statement in
Ruta
in para 54 that “…
until
the right to seek asylum is afforded and a proper determination
procedure is engaged and completed, the Constitution requires
that
the principle of non-refoulement as articulated in
section 2
of the
Refugees Act must
prevail. The “shield of non-refoulement”
may be lifted only after a proper determination has been completed
”.
This statement gives effect to the international conventions I have
referred to.
[14]
Ruta
upheld
a quartet of cases in the SCA.
Abdi
v Minister of Home Affairs
2011
(3) SA 37
(SCA),
Bula v Minister of
Home Affairs
2012
(4) SA 560
(SCA),
Ersumo v Minister
of Home Affairs
2012
(4) SA 581
(SCA), and
Arse
.
It was not argued before me that they detract from the principles
stated already.
Determination
of impact of conviction
[15]
The structure of the
Refugees Act, is
that
a bureaucratic process is to be followed to determine if someone is
eligible for protection as an asylum seeker, or not. The
Refugees Act
provides
for, due to internal remedies, several layers of officials
who may decide the eligibility for asylum. It is not necessary to
restate
those processes in full in this judgment. The point is that
the whole legislated process is a bureaucratic process. Thus, the
role
of the court is that of an adjudicator of the legality of the
legislated bureaucratic process. See
Gorhan
v Minister of Home Affairs and Others
[2016] ZAECPEHC 70 para 18-22, a judgment by Plasket J. The court is
not involved in determining the likely outcome of the process.
[16]
It matters not that asylum seeker visas
lapsed (as they did in two cases before me), the asylum seekers still
have internal remedies
under the
Refugees Act. Sections
22(12) and
22(13) of the
Refugees Act stipulate
a deemed waiver of the
asylum-seeking application,
but only
after an administrative process has been completed
(underlining added):
“
(12)
The application for asylum of any person who has been issued with a
visa contemplated in subsection (1)
must
be considered to be abandoned
and
must
be endorsed to this effect by the Standing Committee
on the basis of the documentation at its disposal
if
such asylum seeker fails to present himself or herself for renewal of
the visa after a period of one month from the date of expiry
of the
visa
,
unless the asylum seeker
provides,
to the satisfaction of the Standing Committee, reasons that he or she
was unable to present himself or herself, as required,
due to
hospitalisation or any other form of institutionalisation or any
other compelling reason
.
(13)
An asylum seeker
whose
application is considered to be abandoned
in accordance with subsection (12)
may
not re-apply for asylum and must be dealt with as an illegal
foreigner in terms of
section 32
of the
Immigration Act
.”
[17]
The
Refugees Act also
does makes provision
for the withdrawal of an asylum seeker visa in cases of criminal
conduct. See first
section 22(5)
(underlining added):
“
(5)
The Director-General may
at
any time prior to the expiry of an asylum seeker visa withdraw such
visa
in the prescribed manner if-
(a)
the applicant contravenes any condition endorsed on that visa;
(b)
the application for asylum has been found to be manifestly unfounded,
abusive or fraudulent;
(c)
the application for asylum has been rejected; or
(d)
the
applicant is or becomes ineligible for asylum in terms of
section 4
or
5
.”
[18]
Sections 4
and
5
so referred to, address
inter alia
the effect of serious crimes committed in this country by an asylum
seeker.
Section 4(1)(e)
of the
Refugees Act determines
that “
an
asylum seeker does not qualify for refugee status for the purposes of
this Act if a Refugee Status Determination Officer
has
reason to believe
that he or she
has committed a crime in the Republic, which is listed in Schedule 2
of the Criminal Law Amendment Act, 1997 (Act
105 of 1997), or which
is punishable by imprisonment without the option of a fine
”.
[5]
In this case events proceeded beyond this point of
suspicion and
section 5(1)(f)
of the
Refugees Act (in
the case of
committed crimes) determines that “
a
person ceases to qualify for refugee status for the purposes of this
Act if he or she
has committed
a crime in the Republic, which is listed in Schedule 2 of the
Criminal Law Amendment Act, 1997 (Act 105 of 1997), or which is
punishable by imprisonment without the option of a fine.
”
[19]
The impact of an asylum seeker having
committed and having been convicted for a serious crime is thus not
automatic.
Section 5(3)
of the
Refugees Act states
that in such a
case, the refugee status of a person, who ceases to qualify for such
status,
may
be withdrawn in terms of
section 36.
A process is prescribed that the
Standing Committee must follow before the refugee status
may
be withdrawn. It is only then that a person that has committed a
serious crime becomes ineligible for asylum in terms in terms
of
section 5.
It is only then that the Director-General may withdraw an
otherwise valid asylum seeker visa in terms of
section 22(5)
referred
to above. It is only then that the Director-General may order the
detention of the asylum seeker in terms of
section 23
of the
Refugees
Act:
“
If
the Director-General has withdrawn an asylum seeker visa in terms of
section 22
(5), he or she may, subject to
section 29
, cause the
holder to be arrested and detained pending the finalisation of the
application for asylum
…”
[20]
Even such detention would be subject to
judicial oversight in terms of
section 29(1)
of the
Refugees Act.
[6
]
The point is this, the state had several months to
proceed the administrative processes to determine that the applicants
are ineligible
for refugee status (or similarly for immigration
status) due to the crimes that they have committed or for any other
reason. It
has not been pleaded and proven that such processes have
been commenced or have been completed in the cases before me.
On
the facts before me, no administrative finding precludes the
reliance on
section 21(4)
of the
Refugees Act.
The
asylum cases
[21]
Against this background I turn to the facts of the asylum matters
before
me. In summary, as would have appeared from the above, the
alleged refugees are entitled to be released, unless the state could

allege and prove grounds for the detention. I have earlier referred
to
Zealand
;
The ConCourt held at para 24:
“…
Accordingly,
it was sufficient in this case for the applicant simply to plead that
he was unlawfully detained. This he did. The
respondents then bore
the burden to justify the deprivation of liberty, whatever form it
may have taken
.”
[22]
The state avers that the applications
before me are bogus. On the one hand the laconic pleadings support
such a view, on the other
hand, the limited issue for decision
(justified deprivation of liberty) reflects that very little needs to
be alleged by the applicants
before me. They were not prepared in
this manner, and contain much duplication and irrelevant mater.
[23]
As I have stated, the applicants are
detained at the Lindela Repatriation Centre. The applicants had been
convicted of serious drug
related crimes and were, at the time of the
hearing, illegally in our country. Their cases for the most part
include bald versions
about their alleged persecution in Nigeria, and
no information about their journeys to South Africa. Either nothing,
or very little,
is said about their entries into our country. In two
of the cases either no, or very unconvincing explanations, are given
why they
did not apply for asylum or seek the renewal of their
asylum-seeking permits before they were apprehended for their crimes
and
ultimately sentenced. There is complete silence about how they
earned a living previously in Nigeria, and complete silence about
how
they earned a living in South Africa. All state, or suggest, that
they belong to the Christian faith (being the reason or suggested
for
their alleged persecution).
In no case is
the court given any assurance that the applicants would reside at an
ascertainable address once released. (In one
case the applicant avers
that he resides at “
Nigel
”,
in another conflicting addresses are given). They all allegedly
intended to seek redress in the form of internal administrative

remedies in the
Refugees Act to
apply for and/or restore rights as
asylum seekers and/or judicial reviews of alleged administrative
action, now that their deportation
is imminent. The prospects of
success of these steps are not addressed.
[24]
The applications fill me with little
confidence that they are
bona fide
applications with prospects of success. Still, I would be hesitant to
find that I could dismiss them on paper as abuses of the
process of
court, especially when in my understanding of the law, the applicants
only need to allege and prove a simple case of
detention (until or
unless they seek to attack the case made out by the state). It is
correct that in motion proceedings onus plays
a lesser role in
determining factual disputes, but it is still important to assess the
adequacy of the pleaded and proven cases.
[25]
I need to say very little more of the facts
of each of the asylum cases before me.
[26]
In case number 2021/1004, Obinna Felix
Nwankwo (“
Mr Nwanko
”)
had a temporary residency permit. He allegedly entered our country in
early 2018. Mr Nwanko had not applied for asylum
in almost three
years, after two alleged attempts by him in 2018 and 2019 to almost
make such application, but from which he allegedly
turned back. Mr
Nwanko was arrested in August 2019 (thus not long after his alleged
arrival). He was sentenced to imprisonment
for ten months on 13
January 2020. According to the founding affidavit, he was released
from prison on 14 November 2020, and on
the common cause facts,
re-arrested. Facing deportation, after about three years in the
country, Mr Nwanko gave notice that he
intended to apply for asylum
only on 9 December 2020. The answering affidavit reflects these
versions:
[26.1]
“
The
applicant
was
then released upon completion of serving his sentence on 14 November
2020
,
as is apparent from Annexure "B". Owing to the fact that
the applicant was an illegal foreigner, he was handed over
by
Correctional Services to Mohale Mochekgechekge ("Mchale"),
an Immigration Officer in the employ of the Department
of Home
Affairs (the "DHA") for purposes of deportation
…”
;
[26.2]
“
The
applicant's detention was, and remains lawful on the strength of the
detention warrant issued by the Nigel Magistrate Court
attached
hereto and marked Annexure "D
"
”
;
[7]
[26.3]
“
A
warrant for the applicant's detention pending deportation was issued
in terms of
section 34(1)
of the
Immigration Act upon
an enquiry
being conducted by the Magistrate
”
.
[27]
These averments fall short of how a defence
must be pleaded and proven. If I may look at the annexures to seek to
understand the
case, it seems that Mr Nwanko appeared on 13 November
2020 before a magistrate in Nigel and that his detention was ordered
for
purposes of deportation in terms of
section 34(1)(b)
(presumably
of the
Immigration Act).
[8
]
There is also an annexure “F” to the
answering affidavit. It is not a notice as pleaded, but seemingly an
application
to the Krugersdorp court in terms of
section 34(1)(d)
(presumably of the
Immigration Act). I
have referred to the impact of
Lawyers for Human Rights on
sections 34(1)(b)
and
34
(1)(d)
of
the
Immigration Act.
[28
]
In case number 2021/2013, Simon Okechukwu John [Agbadom] (“
Mr
John
”
)
entered our
country to work as an engineer
in
2008. He obtained a temporary asylum seeker permit on 14 December
2009 and it expired on 14 January 2010. He was last issued,
by an
extension, with a temporary asylum seeker permit on 2 February 2011
which permit expired on 2 May 2011, nine years ago.
It was not
renewed; the reason is not provided. He stated that he was “
arrested
for criminal activities on 22 March 2014 and sentenced to
imprisonment on 14 April 2015
”
.
[9]
The answering
affidavit shows that he was sentenced to an 8-year term of
imprisonment. He finished his sentence on 14 April 2020
on his
version, was kept in prison, until transferred to Lindela on 10
November 2020. According to the founding affidavit, he commenced
a
judicial review in Pretoria to review an alleged decision, taken by
an unidentified person or body, on a date not mentioned,
allegedly to
reject his alleged asylum application (on the known facts, no such
application has been rejected). In the next paragraph
of his founding
affidavit he also avers that he seeks his release from detention to
pursue internal remedies of the
Refugees Act, without
stating what
they are, or what he intends to do about them, or why he has not
pursued them yet. Still, it remains clear that he
seeks asylum
protection, on the version that he advances.
[29]
The release of Mr John (and of the applicant mentioned next) is
common
cause. The state avers that the applicants were released on
parole and “
handed over to
Immigration Officers for purposes of deportation
”
.
The answering affidavit reflects these versions:
[29.1]
“
Warrants
for placement under correctional supervision on parole/ release upon
expiration of sentence were issued to the applicants
by the
Department of Correctional Services as is apparent from Annexures
"DHA7" and "DHA8"”
;
[29.2]
“
The
applicants' detention at Lindela was on the strength of a warrant
lawfully issued by Magistrates. The said warrants of detention
are
attached hereto and marked Annexures "DHA 13" and "DHA14"
”
;
[29.3]
“
The
applicants' detention at Lindela was on the strength of a warrant
lawfully issued by Magistrates. The said warrants of detention
are
attached hereto and marked Annexures "DHA 13" and "DHA14"
”
.
[30]
Also in case number 2021/2013, Obinna Edwin Anyacho (“
Mr
Anyacho
”
)
entered our country in June 2015, obtained a temporary asylum permit,
and was arrested almost immediately in August 2015 for criminal

conduct. He was kept in custody until conviction and sentencing on 4
December 2018. He also gives no detail of his crime(s) or
sentence.
The answering affidavit shows that this he was sentenced to a 7-year
term of imprisonment. His temporary asylum permit
expired whilst he
was in prison. It was issued on 9 July 2015 and expired on 15 October
2015. He was released from prison on an
unspecified date, seemingly
kept in prison, until transferred to Lindela on 23 October 2020. He
too commenced a review an alleged
decision, taken by an unidentified
person or body, on a date not mentioned, also allegedly to reject his
alleged asylum application.
He too in the next paragraph makes the
averment that he seeks his release to pursue internal remedies of the
Refugees Act, without
stating what they are or what he intends to do
about them, or why he has not pursued them yet. Still, it also
remains clear that
he seeks asylum protection, on the version that he
advances. I have already reflected the version in the answering
affidavit in
the previous paragraph.
[31]
Again, these averments by the state fall short of how a defence must
be pleaded and proven. If I may look at the annexures to seek to
understand the case, it seems that:
[31.1]
Annexures "
DHA7
"
and "
DHA8
"
are mere warrants for placement of a sentenced prisoner on parole or
to be released on completion of the sentence served;
[10]
[31.2]
Annexures "
DHA13
"
and "
DHA14
”
are
two sets of documents, commencing with a warrant issued by the
Department of Home Affairs (?). In the case of Mr John on 22
October
2020 and in the case of Mr Anyacho on 15 October 2020. In the case of
Mr John, on 23 October 2020 a magistrate in Port
Elizabeth confirmed
his detention. Seemingly in terms of
section 34(1)(b)
(presumably of
the
Immigration Act).
[11
]
After some more
documents follows in the case of Mr Anyacho a confirmation of
detention by a magistrate dated 15 October 2020, seemingly
in terms
of
section 34(1)(b)
(presumably of the
Immigration Act).
[32]
In summary, two facts arise: The three applicants are in detention,
and
they allegedly seek protection as asylum seekers.
[33]
On what grounds does the state rely for the detention of these three
applicants? I use case number 2021/1004 to illustrate the defences
raised. The state relied on up to five justifications and partial

justifications in these matters. In law each such justification ought
to have been pleaded properly, and where appropriate, proven.
This
has not happened in the cases before me. Assuming (but not deciding
that) I still had to consider the annexures and argument
based on
them:
[33.1]
A warrant issued by the Nigel Magistrate’s Court for the
detention
of Mr Nwankwo, issued in terms of
section 34(1)
of the
Immigration Act
>
(addressed
earlier herein)
[12]
on 13 November
2020. In the light of the ConCourt decision in
Ruta
,
this defence is bad in law, as he seeks asylum protection. In
addition, the state made no attempt to allege and prove that the

continued detention complied with the prescripts of the
Immigration
Act
as
read with
Lawyers for Human Rights
.
The court order seems to have been issued invalidly in terms of
section 34(1)(b)
of the
Immigration Act. Mr
Nwankwo is entitled to
the protection of
section 21(4)
of the
Refugees Act (addressed
earlier herein)
[13]
and to be
released thereunder;
[33.2]
Section 29(1)(b)
of the
Immigration Act.
[14
]
In the light of
the ConCourt decision in
Ruta
,
this defence is bad in law, as the internal processes under the
Refugees Act must
first be exhausted to determine if the applicant
qualifies for asylum before the
Immigration Act stands
to be
considered;
[33.3]
Mr Nwankwo would never qualify for asylum or even a temporary visa
due to
his criminal record. In themselves, such averments would only
be relevant if they constitute a basis for lawful detention. As set

out earlier, the impact of criminal proceedings in any event must be
considered under the processes under the
Refugees Act, and
not by
this court;
[33.4]
A submission that the applicant has waived his right to seek asylum.
This
is a factual issue. The only reference to such a waiver is to a
signature by the applicant on a document, a notice of deportation,

where he alleged elected not to appeal the decision to deport him.
That process refers to a process followed under the
Immigration Act.
This
was not expressly pleaded as a waiver of a right to apply for
asylum, even if the applicant would have been bound thereby
forevermore.
(I make no such finding.) The defence of waiver is a
factual defence, but on the facts of this matter I need to say no
more than
to refer to the summary of principles by Van Zyl DJP in
Coppermoon Trading 13 (Pty) Ltd v
Government of the Province of the Eastern Cape and Another
2020 (3) SA 391
(ECB) para 23-27; and
[33.5]
Non-compliance with “
new
”
regulation 8.
I
address this below, as the state relies on a judgment that I
respectfully disagree with. My ultimate finding is that this ground

for justification must fail too.
[34]
Section 4
was amended with effect from 1 January 2020 in terms of the
Refugees Amendment Act, 11 of 2017. This included the introduction of

sections 4(1)(e) referred to earlier and 4(1)(h) of the
Refugees Act.
Also
introduced was
section 4(1)(i)
, as section that has not been
addressed fully before me. It seems to me that the amendments do not
change the fact that the determination
of eligibility for asylum
remains a bureaucratic process, involving mainly a Refugee Status
Determination Officer and/or the Standing
Committee for Refugee
Affairs and/or the Refugee Appeals Authority.
[35]
The “
new
”
regulations were
published as
Regulations 1707
on 27 December 2019 in Government
Gazette 42932 and came into effect on 1 January 2020 (on the same day
as certain amendments to
the
Refugees Act). I
do not find that it
would be permissible to remove the right of an asylum seeker to apply
for asylum at any time (as set out earlier
herein) by way of a
regulation where such asylum seeker was already in our country by 1
January 2020 (and applied before that date
for asylum). I make no
such finding, as retrospective operation would be unusual.
[15]
In addition, I do
not make a finding that any such regulation could impose stricter
conditions for asylum seekers than what the
Refugees Act, read
in the
context of international conventions, envisages. As the matter was
not fully pleaded or argued before me, I restrain my
comments.
[36]
The new
regulations 8(3)
and
8
(4) state:
“
(
3)
Any
person who upon application for asylum fails at a Refugee Reception
Office to produce a valid visa issued in terms of the
Immigration Act
must
prior to being permitted to apply for asylum, show good cause
for his or her illegal entry or stay in the Republic as contemplated

in Article 31(1) of the 1951 United Nations Convention Relating to
the Status of Refugees
.
(4)
A judicial officer must require any foreigner appearing before the
court, who indicates his or her intention to apply for asylum,
to
show good cause as contemplated in subregulation (3
)
.”
[37]
In context such an application purportedly must be made at a port of
entry:
“
7.
Any person who intends to apply for asylum must declare his or her
intention, while at a port of entry, before entering the Republic
…”
[38]
Gqamana J in the Eastern Cape Local Division, Port Elizabeth
delivered
on 22 September 2020,
Mwale
v The Minister of Home Affairs and Another
(case
number 1982/2020) dealt with these regulations. The judgment is
unreported.
[39]
It seems to me, with respect, that the removal of the right to apply
for asylum at any place other than at a port of entry, as found by
the learned judge in
Mwale
,
[16]
would require
more than the regulation relied upon. In fact,
section 4(1)(h)
of the
Refugees Act by
necessary implication still recognises alternate
entry (underlining added to reflect the bureaucratic process):
“
(1)
An asylum seeker does not qualify for refugee status for the purposes
of this Act
if
a Refugee Status Determination Officer
has reason to believe that he or she-
(a)
…
(h)
having
entered the Republic, other than through a port of entry
designated as such by the Minister in terms of
section 9A
of the
Immigration Act,
fails
to satisfy a Refugee Status Determination Officer that there are
compelling reasons for such entry
”
.
[40]
I do not make a finding that it would be permissible in terms of the
international conventions binding on our country, to limit asylum
seekers to entry through ports of entry and to keep them to strict

timelines. In fact and with respect, I struggle to see the
application of the “
non-refoulement
”
principle to such
an approach to dealing with asylum seekers. As the matter was not
fully pleaded or argued before me, I restrain
my comments.
[41]
The learned judge in
Mwale
also recognised
exceptions to entries through official ports of entry. The learned
judge held in para 28
[17]
that in the
absence of a good explanation why he/she is illegally in the country,
non-compliance with
regulation 8(3)
precludes an asylum seeker from
seeking his/her release from detention in a court pending the
completion of the processes under
the
Refugees Act (and
then
determined the issue on the facts averred in the founding papers). I
respectfully disagree. The law
as
set out by the ConCourt and the SCA, and as contained in
section
21(4)
of the
Refugees Act, with
respect is clear. A court has no role
to play in the prescribed bureaucratic processes to determine if an
asylum seeker is a bona
fide asylum seeker (or not), and this court’s
jurisdiction is limited to judicial oversight of the bureaucratic
processes.
The regulation does not, if this was permissible, remove
the right to apply for asylum and to exhaust internal remedies in
that
process. Until the process is completed, the detainee is
entitled to be released in terms of
section 21(4)
of the
Refugees
Act, and
a court is not involved in making determinations on the
merits of the application for asylum.
[42]
The finding by the learned judge in
Mwale
that the repeal of old
regulation 2
[18]
materially changed the law on the release of
detainees, is with respect, incorrect. On my reading of the
judgments, the ConCourt
and the SCA with respect did not make their
findings based on the existence or not of the old
regulation 2.
It is
true, if one has regard to two of the four SCA cases referred to as
part of the quartet approved by the ConCourt in
Ruta
,
Bula and Others v Minister of Home
Affairs and Others
2012 (4) SA 560
(SCA) para 59, 72 and 78 and
Ersumo v
Minister of Home Affairs and Others
2012
(4) SA 581
(SCA) para 12-19, the courts had regard to the old and now
repealed
regulation 2
, but with respect it was only part of the
courts’ reasoning.
[43]
As such it seems to me that one in the context of trite law and the
constraints
of regulations having to be
intra
vires
,
that one should interpret
regulation 8(4)
not to preclude a court
hearing an application by a detainee to be released to apply trite
law and order the release for the bureaucratic
processes to be
completed (even if after such an inquiry the court is sceptical about
the application’s prospects of success
or the motivation of the
applicant).
[44]
The learned judge in
Mwale
further
held in para 31
[19]
that (in any
event) an unchallenged detention order by a magistrate under the
Immigration Act bars
a reliance on the
Refugees Act. I
respectfully
disagree. I have dealt with the authorities about the interaction
between the two acts and how the
Refugees Act trumps
the
Immigration
Act when
someone seeks asylum.
[45]
Lastly, the learned judge in
Mwale
para 33
made the following factual determination:
“
[33]
Section 4(1)(e)
excludes an asylum seeker to qualify for refugee
status if such person has committed a crime in the Republic, which is
listed in
Schedule 2 of the Criminal Law Amendment Act, 1997 (Act No.
105 of 1997), or which is punishable by imprisonment without the
option
of a fine. Therefore, due to her conviction and sentence, the
applicant does not qualify for refugee status for purposes of the
Refugees Act. The
applicant is accordingly not entitled to any of the
relief sought and her application must fail
.”
[46]
With respect I disagree. The findings by the learned judge with
respect
does not accord with the wording of the section (referred to
earlier), the scheme of the act, the separation of powers, or the
case authority I have referred to and sections in the act.
[20]
It is not for the
court to make a finding that the applicant is an undesirable person
(or that the applicant will be found to be
such a person).
[47]
Accordingly, the five grounds relied upon by the state would not
justify
the continued detention of the applicant. Urgency and
non-joinder were not pursued in argument. I also need not address in
urgent
court the additional remedies the applicant seeks, even if he
had made out a case for them (a finding I do not make).
[48]
Mr Nwankwo is entitled to be released.
[49]
In case number 2021/2013, the state relied on similar justifications
for the detention of Mr John and Mr Anyacho. The main factual
difference between these two cases and the previous one pertaining
to
Mr Nwankwo, is that the two applicants had applied for asylum, and
their temporary asylum permits lapsed. Mr Nwankwo had not
applied for
asylum earlier. I do not believe that the other factual nuances are
determinative of the applications by Mr John and
Mr Anyacho.
[50]
The point is this: Lapsed temporary asylum permits or not, the state
has taken no steps to terminate their status as refugees as set out
earlier herein. As such their asylum applications have not been

resolved. As such the asylum-seeking process is still pending and
they are entitled to be released from detention.
[51]
A structured order to determine timelines for the officials to issue
renewed asylum-seeker permits and to compel the officials to consider
withdrawing the permits was granted in an unreported judgment
in this
division on 17 December 2020,
SD
David v The Minister of Home Affairs and Others
(case
number 2020/29434). Upon reflection I decided against applying it.
(a) Such relief was not requested. (b) I also cannot detain
the
applicants if their detention is not lawful. (c) Once I start issuing
executive orders, I will transgress onto matter not reserved
for
judges (and where do I stop with such orders?) (d) In my view, with
respect, my power in terms of section 172(1)(b) of the
Constitution
to grant a just and equitable order in a constitutional matter (such
as the present), should not be used to cure the
failure by the state
to address in its bureaucratic processes the status of the
applications for asylum (and residency, dealt with
next).
[52]
Also in this case, urgency and non-joinder were not pursued in
argument.
I also need not address in urgent court the
additional remedies the applicants seek, even if they had made out a
case for
them (a finding I do not make).
[53]
Mr John and Mr Anyacho are entitled to be
released.
The
immigration case
[54]
This brings me to the immigration matter,
case number 2021/0014.
[55]
In terms of
section 10(1)
of the
Immigration Act, a
non-citizen requires a permanent residence permit
to be lawfully in the country (issued in terms of
section 27)
, or
alternatively one of several temporary visas listed in
section 10(2).
Any temporary visa issued as contemplated in
section 10(2)
of the
Immigration Act, is
issued in terms of
section 10(4)
“
on
condition that the holder is not or does not become a prohibited or
an undesirable person
” as set out
in
sections 29
and
30
respectively. A prohibited person so referred
to, includes in terms of
section 29
, anyone against whom a conviction
has been secured in the Republic of South Africa in respect of
drug-related charges or money
laundering. Still, the Director-General
may in terms of
section 29(2)
of the
Immigration Act “
for
good cause, declare a person referred to in subsection (1) not to be
a prohibited person
”. If the
state relies on a finding that a person is a prohibited person who
does not qualify for a temporary visa in terms
of the
Immigration
Act, it
must allege and prove the material facts
[56]
I personally made very certain that the
applicant in case number 2021/0014, Uguchukwu Raphael Onwuakpa (“
Mr
Onwuakpa
”) does not seek asylum
protection. He only seeks relief under the
Immigration Act. As
was
the case in the other applications, Mr Onwuakpa is also in detention
at Lindela Repatriation Centre and he also seeks his release.
He
allegedly resides in East London. Mr Onwuakpa entered the country in
2006 to seek asylum. However, on 5 January 2010 he married
a South
African citizen and obtained a temporary residency permit. Mr
Onwuakpa’s temporary residency permit, after some renewals,
was
due to expire on 22 July 2017. Mr Onwuakpa avers that he is lawfully
in the country, self-evidently untrue. He was arrested
for a crime
not described his affidavit on 15 August 2015, kept in custody, and
sentenced on 2 December 2018 for an unspecified
time.  Mr
Onwuakpa gives no detail of their married life or living
arrangements, but states that they have three children.
Mr Onwuakpa
makes out no case that a good faith spousal relationship exists. He
does not tell one how he made a living in Nigeria
and later in South
Africa. He avers that he was released from prison on about 19
November 2020 and thereafter detained at Lindela.
[57]
Some of the omitted matter appears from the
answering affidavit. Regarding the crime, this statement was made:
“
The
applicant was arrested in East London in the Eastern Cape province on
15 August 2015 for contravening section 5(b) of the Drugs
and Drugs
Trafficking Act 1992 (the "Drugs Act") as he was in
possession of and was dealing in drugs and contravention
of section
2(1) (e) of the Prevention of Organized Crime Act of 1998
(Recketeering). As a result, on 4 December 2018, the applicant
was
convicted and sentenced to a 10-year term of imprisonment in terms of
section 276(1)(b) of the Criminal Procedure Act (1977)
(the "CPA")
under case number RC2/l 00/15. A copy of SAPS 69 Form evidencing the
same is annexed hereto marked Annexure
“A
”
.”
[58]
The answering affidavit avers that the three children reside in
Nigeria
in Lagos, cared for by Mr Onwuakpa’s sister.
[59]
Against this background, the relief sought in the notice of motion,
apart
from dealing with urgency and costs, is:
“
2
Declaring the detention of the Applicant to be unlawful.
3
Directing the Respondents to release the Applicant immediately
”
.
[60]
The relief sought is not that Mr Onwuakpa’s
deportation be stayed pending some relief, and/or that he be assisted
by the state
to prosecute such remedies. He only seeks his
unconditional release. As reflected earlier, if his detention is
unlawful, unconditional
release would be proper relief. If his
detention is lawful, he would have to make out some other basis for
such unconditional release.
The basis for such relief must be
pleaded and proven.
[61]
The case for unconditional release must not
be confused with the question if Mr Onwuakpa has internal remedies in
terms of the
Immigration Act to
renew his temporary residence permit,
or what is prospects of success in such an endeavour would be. Those
questions might be relevant
to seeking on some basis his
unconditional release, but in the absence of the equivalent of
section 21(4)
of the
Refugees Act, are
not in themselves grounds for
the unconditional release of a lawfully detained person.
[62]
The founding papers did not address the
above distinction between the
Refugees Act and
the
Immigration Act.
Seemingly
the highlight of the case purportedly made out for Mr
Onwuakpa’s unconditional release, is the following:
“
I
am advised that a person may only be detained under
Immigration Act
if
the said person has breached a permit condition, and their permit
have been removed by the First Respondent in accordance with fair

administrative procedures under the
Promotion of Administrative
Justice Act 3 of 2000
. I respectfully maintain that this has not been
done in my case
”
;
“
I
respectfully submit that I am entitled to sojourn temporarily in the
Republic of South Africa because a good faith spousal relationship

exists between us. I maintain that I am also entitled to be given an
opportunity to make an application for the extension of my
Temporary
Residence permit. This will also enable me to rejoin my family. I
believe it is my constitutional right to live together
as husband and
wife in community with my wife and my children in terms of the
provisions of the Constitution of South Africa
”
;
[63]
My failure to comment on these averments, does not indicate
acceptance
of the averments as grounds for unconditional release.
Whether or not the applicant has made out a case for his
unconditional release
would be a question that would only arise if
his detention was lawful to begin with.
[64]
A lot of confusion was caused by Mr Onwuakpa’s numerous
irrelevant
statements about the
Refugees Act (whilst
in fact it
became common cause at the hearing that he did not rely thereon).
This confusion impacted on the answering affidavit,
but is no reason
why the lawfulness of (continued) detention not be alleged and proven
in due compliance with trite principles.
This is what was pleaded:
“
The
applicant's detention at Lindela was on the strength of a warrant
lawfully issued by the Magistrate at the Uitenhage Court
”
;
[Nothing was pleaded about the legal basis for the warrant, or even
when it was issued.]
“
A
warrant for the applicant's detention pending deportation was issued
in terms of
section 34(1)
of the
Immigration Act. This
warrant is
annexed hereto marked Annexure "E"”
;
[Nothing
was pleaded about when (or by whom) the warrant was issued. As in the
asylum cases already dealt with, “E”
is not a warrant
issued by a Magistrate, but a document seemingly issued by an
official. It bears the date stamp 27 October(?)
2020(?)
[21]
of the Department
of Home Affairs. Attached thereto is an illegible confirmation by a
court, ostensibly issued in terms of
section 34(1)(b)
(presumably of
the
Immigration Act). It
bears the date stamp 28 October 2020 of the
Uitenhage Magistrate’s Court. I have referred to the order in
Lawyers for Human Rights
setting
aside
section 34(1)(b)
of
the
Immigration Act
.
Nothing
was placed before me to show why such an order would be valid.]
“
The
allegations herein contained are denied. The applicant's detention
was confirmed by warrant of detention issued and confirmed
by a
Magistrate in terms of the law. The Confirmation by Court of
Detention for Purposes of Deportation is attached hereto and
marked
Annexure "J"
”
;
[The papers on CaseLines stopped at annexure “I”. Not
only was no detail pleaded, but no proof was annexed either.]
[65]
As matters stand, the state has failed to allege and prove any basis
for the detention of Mr Onwuakpa, other than perhaps a warrant issued
in terms of a section of the
Immigration Act set
aside in
Lawyers
for Human Rights
.
[66]
Mr Onwuakpa is entitled to be released on the facts as they are
before
me.
Costs
[67]
Costs must follow the results. In one
instance counsel informed me that he acted pro bono and that his
attorney acted pro bono.
He asked for costs. I enquired if that would
not be a contravention of the rules of the advocates profession. It
would be. See
General Council of the Bar
Rule 7.3.1:
“
7.3.1
A member may take a brief subject to an agreement to charge no fees;
in such a case no fee shall be recoverable by the member
and he must
immediately give notice that he is receiving no fees to the registrar
or clerk of the Court and to the secretary.
7.3.2
When a member agrees to charge no fees, no fees for such member shall
be brought up for taxation by the attorney instructing
him
.”
[68]
The Code of Conduct of the Legal Practice
Council has a different rule, rule 31.1:
“
31.1
Counsel who accept pro bono briefs shall not, after acceptance, seek
to charge a fee except as may be permissible under section
92 of the
Act
.”
[69]
I am not certain if
section 92
of the
Legal
Practice Act 28 of 2014
addresses the counsel’s ethical
dilemma, as it addresses recovery. I do not have to resolve it
either.
Accordingly,
I make the following orders:
In case
number 21/01004:
1.
Dispensing with forms, services and time
periods prescribed by the Uniform Rules of Court and directing that
the matter be enrolled
and heard as an urgent application in terms of
Uniform Rule 6(12);
2.
The First, Second and Third Respondents are
hereby ordered to release the applicant from detention forthwith;
3.
The First, Second and Third Respondents are
hereby ordered to pay the costs of this application,
4.
It is recorded that the applicants’
attorney and counsel acted pro bono;
5.
The remainder of the relief sought is
postponed sine die;
In case number 21/0013:
6.
Dispensing with forms, services and time
periods prescribed by the Uniform Rules of Court and directing that
the matter be enrolled
and heard as an urgent application in terms of
Uniform Rule 6(12);
7.
The First and Second Respondents are hereby
ordered to release the applicants from detention forthwith;
8.
The First and Second Respondents  are
hereby ordered to pay the costs of this application;
9.
The remainder of the relief sought is
postponed sine die;
In case number 21/0014:
10.
Dispensing with forms, services and time
periods prescribed by the Uniform Rules of Court and directing that
the matter be enrolled
and heard as an urgent application in terms of
Uniform Rule 6(12);
11.
The First and Second Respondents are hereby
ordered to release the applicant from detention forthwith;
12.
The First and Second Respondents  are
hereby ordered to pay the costs of this application.
DP de Villiers AJ
Heard:

During the urgent week of 2 to 5 February 2021
Delivered on:
18 February 2021 by uploading on CaseLines
Case
Number: 21/01004
On behalf of the applicant:
Adv S. Mbunzu
Instructed by:

Hulana Attorneys
For the respondents:

Adv MZ Raphesu
Instructed by:

Molefe Dlepu Incorporated
Case
Number: 21/0013
On behalf of the applicants:
Adv SB Mngomezulu
Instructed by:

Jafta (Lerato) Attorneys
For the respondents:

Adv MZ Raphesu
Instructed by:

State Attorney
Case
Number: 21/0014
On behalf of the applicant:
Adv SB Mngomezulu
Instructed by:

Jafta (Lerato) Attorneys
For the respondents:

Adv MZ Raphesu
Instructed by:

State Attorney
[1]
“
Everyone who is detained, including
every sentenced prisoner, has the right- (a) … (d) to
challenge the lawfulness of the
detention in person before a court
and, if the detention is unlawful, to be released
”.
[2]
For a contrary view see
O
A v Minister of Home Affairs and Others
[2019] ZAGPJHC 470 para 8, 17 and 18. I respectfully disagree.
[3]
“
Without the need for a warrant, an
immigration officer may arrest an illegal foreigner or cause him or
her to be arrested, and
shall, irrespective of whether such
foreigner is arrested, deport him or her or cause him or her to be
deported and may, pending
his or her deportation, detain him or her
or cause him or her to be detained in a manner and at a place
determined by the Director-General,
provided that the foreigner
concerned-
(a)      shall be notified in writing of
the decision to deport him or her and of his or her right to appeal

such decision in terms of this Act;
(b)      may at any time request any
officer attending to him or her that his or her detention for the

purpose of deportation be confirmed by warrant of a Court, which, if
not issued within 48 hours of such request, shall cause
the
immediate release of such foreigner;
(c)      shall be informed upon arrest
or immediately thereafter of the rights set out in the preceding
two
paragraphs, when possible, practicable and available in a language
that he or she understands;
(d)      may not be held in detention
for longer than 30 calendar days without a warrant of a Court which

on good and reasonable grounds may extend such detention for an
adequate period not exceeding 90 calendar days; and
(e)      shall be
held in detention in compliance with minimum prescribed standards
protecting his or
her dignity and relevant human rights
.”
[4]
“
24(3) The Refugee Status Determination
Officer must at the conclusion of the hearing conducted in the
prescribed manner, but subject
to monitoring and supervision, in the
case of paragraphs (a) and (c), and subject to review, in the case
of paragraph (b), by
any member of the Standing Committee designated
by the chairperson for this purpose-
(a) grant
asylum;
(b)
reject the application as manifestly unfounded, abusive or
fraudulent; or
(c)
reject the application as unfounded
.”
[5]
“
This schedule includes any offence
referred to in
section 13
(f) of the
Drugs and Drug Trafficking Act,
140 of 1992
, if it is proved that-
(a)
the value of the dependence-producing substance in question is more
than R50 000,00;
(b)        the
value of the dependence-producing substance in question is more than
R10 000,00 and
that the offence was committed by a person, group of
persons, syndicate or any enterprise acting in the execution or
furtherance
of a common purpose or conspiracy
…”
[6]
“
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
court in whose area of jurisdiction the person is detained, and such
detention must
be reviewed in this manner immediately after the
expiry of every subsequent period of 30 days of detention
.”
[7]
The attached forms show detention in terms
section 34(1)(b).
[8]
Also mentioned is section 7(1)(g), a section
empowering regulations.
[9]
The papers also reflect 14 April 2016
[10]
Although not addressed, this may be a basis for
the initial hand-over of a person to an immigration officer, before
the state
is compelled to follow the processes of judicial
supervision. See
section 34(7)
of the
Immigration Act.
[11
]
Also mentioned is
section 7(1)(g)
, a section
empowering regulations.
[12]
Para 4-5, and 9-13.
[13]
Para 6-8.
[14]
It is addressed more fully later herein.
[15]
See
National
Director of Public Prosecutions v Carolus and Others
2000 (1) SA 1127
(SCA) para 31-36.
[16]
“
[19] The
Refugees Act and
the new
regulations made under it prescribe the procedure to be followed
when applying for an asylum. An individual who intends
to apply for
asylum must declare his or her intention while at a port of entry
before entering the Republic
(Regulation 7
of the new regulations)
…”
and
“
[30]
Clearly from the passages quoted above, delay on applying for asylum
is not a bar in itself. However, and more fundamentally
the
principle enunciated by Wallis JA, in Ersumo must be understood on
the factual and legal position applicable then.
Regulation 2
(2) has
since been repealed and accordingly it is not applicable in the
instant matter. The current relevant legal prescript
is reg 7 of the
new regulations, and the only interpretation to be given to it is
that, the intention to apply for asylum must
be declared while at
the port of entry, before entering the Republic. The new regulations
are now more restricter as compared
to the repealed reg 2 (2), which
allowed an individual to assert his or her intention to apply for
asylum when he or she is “encountered'
to be in violation of
the
Immigration Act. So
all the judgments (See footnotes 23 and 24
above) upon which the applicant places reliance on for her
submissions are of no assistance
to her plight having regard to the
legislative amendments since then
.”
[17]
“
[
28] So the
answer to the first point of argument raised by the applicant is
that, immigration officers are empowered in terms
of
section 21
(IB)
of the Refugees Act and reg 8 (3) of the new regulations to
interview an applicant to ascertain whether valid reasons exists
as
to why such an applicant is not in possession of an asylum transit
visa and an applicant has a duty to show good cause for
her illegal
entry or stay in the Republic. No evidence has been presented by the
applicant to establish good cause for her illegal
entry or stay in
the Republic. Argument advanced on her behalf by Mr Menti, was that,
all what was required of the applicant
was merely to assert an
intention to apply for asylum (See: applicant's founding affidavit,
paras 31 and 34), and once she has
done so at any stage, she was
entitled to be released from detention and to be allowed to apply
for asylum. This argument is
not sustainable having regard to the
provisions of
s 21(1B)
of the
Refugees Act and
reg 7 and 8 (3) of
the new regulations
”;
[18]
It read:
“
2(1)
An application for asylum in terms of section 21 of the Act:
(a)        must be lodged by
the applicant in person at a designated Refugee Reception Office

without delay;
(b)        must be in the form and
contain substantially the information prescribed in Annexure 1
to
these Regulations; and
(c)   must be completed in
duplicate.
(2) Any person who entered the Republic and is encountered in
violation of the Aliens Control Act, who has not submitted an
application
pursuant to subregulation 2(1), but indicates an
intention to apply for asylum shall be issued with an appropriate
permit valid
for 14 days within which they must approach a Refugee
Reception Office to complete an asylum application.”
[19]
“
[31] Mr Menti on behalf of the
applicant, argued in no uncertain terms that the confirmation of the
warrant of detention by the
magistrate on 20 August 2020, is not
challenged in these proceedings. The applicant's case was simply
that despite such a confirmation
she was not barred to assert her
intention to apply for asylum. Such argument is unsustainable on a
proper and correct interpretation
of the new amendments to the
Refugees Act and
the new regulations
.”
[20]
See
sections 4(1)(e)
,
24
(2),
24
(4),
24B
,
5
(1)(f),
36
, and
9A
of the
Refugees Act.
[21
]
The copy is unclear.