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[2012] ZASCA 31
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Ersumo v Minister of Home Affairs and Others (69/2012) [2012] ZASCA 31; 2012 (4) SA 581 (SCA); [2012] 3 All SA 119 (SCA) (28 March 2012)

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REPORTABLE
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no: 69/2012
In the matter between:
Kadire Ibiro Ersumo
….............................................................................
Appellant
and
The Minister of Home Affairs
…..................................................
First
Respondent
Director General: Department of Home Affairs
…...................
Second
Respondent
Bosasa Operations (Pty) Ltd
…....................................................
Third
Respondent
Neutral citation:
Ersumo v Minister of Home
Affairs
(
69/2012)
[2012] ZASCA 31
(28 March 2012)
Coram:
MTHIYANE DP, NUGENT, MAJIEDT and WALLIS
JJA and NDITA AJA.
Heard
: 27 March 2012
Delivered
: 28 March 2012
Summary:
Foreigner seeking
asylum in South Africa – arrested when not in possession of an
asylum transit permit or an asylum seeker
permit – arrested as
an illegal foreigner in terms of s 34(1), read with
s 23(2)
of the
Immigration Act 13 of 2002
– claiming asylum and release
from detention in terms of
ss 2
and
21
(4) of the
Refugees Act
130 of 1998
– relationship between
Immigration Act and
Refugees
Act – foreigner
can rely on
Refugees Act at
any stage –
delay in indicating a wish to apply for asylum not a ground for
preventing such an application.
ORDER
On appeal from:
Eastern Cape High Court, Port
Elizabeth (Chetty J sitting as court of first instance) it is ordered
that:
The appeal is upheld with costs, such costs to include
those of two counsel.
The order of the court below is set aside and replaced
with the following order:
‘
(a) The Second Respondent is
directed, in terms of
regulation 2(2)
of the regulations in terms of
the
Refugees Act 130 of 1998
, forthwith, and in any event not later
than 48 hours after the issue of this order, to issue the Applicant
with an asylum transit
permit valid for 14 days in terms of
s 23(1)
of the
Immigration Act 13 of 2002
and subject to such conditions as
ordinarily attach to such a permit.
Subject to his reporting at the Refugee Reception
Office in Port Elizabeth, within 14 days of receiving such permit,
for the
purpose of applying for asylum in terms of
s 21
of the
Refugees Act, and
there applying for asylum, the First and Second
Respondents are interdicted from deporting the Applicant from South
Africa
before the final determination of his application for
asylum, including any review or appeal in relation thereto.
The First and Second Respondents are directed to
ensure that when the Applicant reports at the Refugee Reporting
Office in Port
Elizabeth, he shall immediately be dealt with and
assisted to make an application for asylum in accordance with the
provisions
of the said
regulation 2(2).
It is declared that, upon completion of an asylum
application in terms of paragraph (c) above, the Applicant will be
entitled
to be issued with an asylum seeker permit in terms of
s 22
of the
Refugees Act.
Upon
being furnished with an asylum transit permit in
terms of paragraph (a) above the Applicant will be entitled to his
immediate
release from detention at Lindela Detention and Holding
Facility in Krugersdorp and shall not thereafter be subject to
detention
in terms of either the
Refugees Act or
the Immigration
Act for so long as he is in possession of a valid asylum seeker
permit.
The First and Second respondents are directed to pay
the costs of this application.’
JUDGMENT
WALLIS JA
(MTHIYANE
DP, NUGENT and MAJIEDT JJA and NDITA AJA concurring)
[1] Mr Ersumo, the Appellant, is an Ethiopian national.
According to him he was unlawfully imprisoned in Shashena prison and
tortured
for his political beliefs by members of the ruling party,
the Ethiopian People’s Revolutionary Party. He escaped by
bribing
some prison officials and fled to Kenya. He did not regard
that country as a safe haven because, so he says, there are Ethiopian

intelligence officers stationed there whose task is to find and
capture Ethiopian refugees and return them to Ethiopia. As he had
a
brother in this country he decided to seek refuge here. However, he
was arrested at Willowmore in the Eastern Cape as an illegal

foreigner and is at present detained at the Lindela Detention and
Holding Facility at Krugersdorp. An urgent application to secure
his
release and further relief relating to a claim for asylum in South
Africa was dismissed by Chetty J in the Eastern Cape High
Court.
Leave to appeal was likewise refused by Chetty J, but granted on
petition by this Court. It has been set down for expedited
hearing in
terms of directions issued by the President of the Court. The
Minister of Home Affairs and the Director-General of the
department,
to whom I will refer as the respondents, oppose the appeal.
[2] Mr Ersumo says that he entered
South Africa at Musina at the end of May 2011. He sought and was
given an asylum transit permit
in terms of
s 23(1)
of the
Immigration Act 13 of 2002
. Such a permit is valid for 14 days. If
within that time the holder of the permit does not report to a
Refugee Reception Officer
at a Refugee Reception Office in order to
apply for asylum in terms of
s 21
of the
Refugees Act 130 of
1998
, ‘the holder of that permit shall become an illegal
foreigner’ and be dealt with in accordance with the provisions
of the
Immigration Act relating
to illegal foreigners.
1
Those provisions are embodied in
s 34
of that Act and provide for the detention and deportation of the
person concerned.
[3] According to Mr Ersumo he endeavoured to comply with
the requirements of
s 23
at the Refugee Reception Office in
Pretoria but was unsuccessful because the officials at the office
helped only a few asylum seekers
and there were a number of people in
the queue who were not assisted. He then, in consultation with his
brother, who lives in Mafikeng,
set out for that town with a view to
his brother assisting him with his application. However, on 4 June
2011, he was mugged whilst
en route and all his personal belongings
were stolen, including the asylum transit permit. On 10 June 2011 he
reported the theft
to the police at Wolmaransstad and deposed to a
short affidavit. In it he said that he had lost his permit and wanted
to obtain
another one. He expressed the desire to be a citizen of
South Africa.
[4] Mr Ersumo says that his brother sought advice from a
cousin who also lives in South Africa and the cousin said that if he
came
to where he lived in Willowmore in the Eastern Cape, he would
help by taking him to Cape Town to apply for asylum. He does not
explain why Cape Town was chosen for this purpose, but says that he
went there and on 12, 13, 19 and 20 July 2011 slept outside
the
Refugee Reception Office in order to secure a place near the front of
the queue. However, he says that this proved unsuccessful
because the
office dealt with so few applicants on the days in question. He then
returned to Willowmore with the intention of making
an application in
Port Elizabeth, but does not say that he made any attempt to do so
before his arrest on 15 August 2011.
[5] The respondents do not accept Mr Ersumo’s
story. They say that they cannot verify his version because he does
not identify
any of the officials he dealt with at Musina. This seems
to be an odd contention. One would have thought that there would be a
register kept at places such as Musina of all asylum transit permits
issued to potential asylum seekers, which register could be
consulted
to check the accuracy of allegations such as these. To expect asylum
seekers, many of whom must speak languages unfamiliar
to South
African officials – Mr Ersumo speaks Amharic and has a limited
grasp of English – to note and record the names
of the
officials with whom they interact is not reasonable.
[6] The respondents point to other gaps and possible
contradictions in Mr Ersumo’s version of events. Thus he says
that he
spent two weeks in Pretoria attempting to apply for asylum,
but that is difficult to reconcile with his entering the country at

the end of May and being mugged on 4 June, whilst on his way to
Mafikeng. Much detail is also missing from his story, such as
identifying where he stayed in Pretoria; the means used to travel to
Mafikeng and his brother’s address in that town; why
he made
his report to the police at Wolmaransstad; why he went to Willowmore,
then Cape Town and then came back to Willowmore instead
of applying
for asylum in Port Elizabeth and what he did between 20 July, when he
was in Cape Town, and 15 August when he was arrested
in Willowmore.
These are all proper matters for investigation and may ultimately
justify the respondents’ doubts about Mr
Ersumo’s status
and purpose in coming to this country. However, they are not matters
that can be resolved on the papers and
the respondents are unable to
challenge Mr Ersumo’s statements about his treatment in
Ethiopia; the threats to his safety
and well-being if he had stayed
in that country; and the problems he would face were he now to be
returned there.
[7] It is unnecessary in those circumstances to address
the submission by counsel for Mr Ersumo that it is for the Refugees
Reception
Officer to determine whether a person is a genuine refugee
and that, because the details of an asylum seeker’s application

must remain confidential in terms of
s 21(5)
of the
Refugees
Act, it
is unnecessary for an applicant such as Mr Ersumo to furnish
details of his status as a refugee and impermissible for the court
to
enquire into that question. It suffices to say that on the evidence
before us there is sufficient material to indicate that
Mr Ersumo may
have a valid claim to refugee status. That being so we do not have to
consider whether he could have succeeded if
less had been placed
before the court.
[8] On the application papers as they stand the court
below was therefore obliged to approach the case on the basis that Mr
Ersumo
had left Ethiopia because of a well-founded apprehension of
being persecuted for his political opinions and because of that fear

he was unwilling to return to it. I stress that the final decision on
the truthfulness of his claims will need to be taken by a
Refugee
Reception Officer, but for the purposes of this application his
statements in that regard could not be disputed and the
case should
have been decided on that footing. However, even on that footing he
was at the time of his arrest and detention an
illegal foreigner in
terms of the
Immigration Act and
liable to arrest and deportation,
subject only to his right to claim refugee status under the
Refugees
Act.
[9
] It is unclear whether this was the approach of the
judge in the high court. He dealt with a number of similar
applications involving
Bangladeshi citizens and one from India,
together with that of Mr Ersumo. He held that the claims to be asylum
seekers in those
other cases were patently false and contained ‘a
plethora of lies’ in support of their claims to be refugees. He
described
these cases, which were apparently similar to a number of
others that he said have been brought on a weekly basis in that
court,
as an abuse. In dealing with Mr Ersumo he started by saying
that his previous remarks were of equal application, but he did not

then go on to say that his version of events was untrue. He merely
said that on any basis Mr Ersumo was an illegal foreigner and
fell to
be dealt with in terms of the
Immigration Act. He
added that this
would be so even if he applied for asylum under the
Refugees Act.
That
accorded with the case advanced by the respondents, which was
that irrespective of the truth of Mr Ersumo’s statements he
had
become an illegal foreigner in terms of
s 23(2)
of the
Immigration Act and
was accordingly liable to be detained and
deported in terms of
s 34
of that Act. The respondents’
stance was that no application for asylum had been made under the
Refugees Act and
, even if one was made, that would not affect Mr
Ersumo’s status as an illegal foreigner or the validity of his
detention.
[10] In
Arse
v Minister of Home Affairs
,
2
this Court held that the detention of
a refugee under
s 34(1)
of the
Immigration Act was
unlawful and
impermissible where the refugee had applied for asylum in terms of
the
Refugees Act. It
said that, in those circumstances, the refugee
was protected from arrest, detention and deportation by the
provisions of
s 21(4)
of the
Refugees Act, which
provides that:
‘
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 person has had an opportunity to exhaust his or her rights of
review or appeal in terms of Chapter 4 …’
[11] The contentions advanced by the
respondents in the court below were clearly postulated on the
proposition that the decision
in
Arse
applied only where
an application for asylum had already been made and did not affect
the operation of
ss 23(2)
and
34
(1) of the
Immigration Act where
no such application had been made. However, that approach to the
issues in this case has been overtaken by the later decision of
this
Court in
Bula &
others v Minister of Home Affairs
3
handed down on 29 November 2011
.
That case dealt with asylum seekers
from Ethiopia who had entered South Africa without seeking or
obtaining asylum transit permits
or any other documents that would
legitimise their presence in this country. Like Mr Ersumo they were
detained under the
Immigration Act, in
their case under
s 9(4)
,
but that does not affect the matter. Immediately after their
detention and removal to Lindela attorneys acting on their behalf

wrote to the Department of Home Affairs demanding that all
deportation proceedings against their clients be stopped; that they

be released from detention and afforded an opportunity to apply for
asylum. That case, like this, therefore arose in circumstances
where
the asylum seekers had not applied for refugee status at the time of
their arrest and detention. Like Mr Ersumo they were
illegal
foreigners and as such liable to arrest and deportation under the
Immigration Act. This
Court nonetheless held that they were entitled
to invoke the protection of the
Refugees Act and
for that purpose
were entitled to their release from custody, protection against
deportation whilst applications for refugee status
were being
processed and ancillary relief.
[12] The Court in
Bula
held that once a
person claiming asylum indicated a desire to make an application for
refugee status the protection afforded to
such persons by the
Refugees Act applied
to such person. This emerges from the following
passages in the judgment:
‘
[70] An important regulation in this regard
is
Regulation 2
of the regulations under the RA [Refugees Act] which
provides:
“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,
4
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.”
[71] In para 24 of
Abdi
5
this court noted that the provisions of the Act
are in accordance with international law and practice as evidenced by
decisions
of the European Court of Human Rights.
[72] Regulation 2(2) ought to have been the starting point as the
appellants clearly fell within its ambit. They had not lodged
an
application within the terms set out in Regulation 2(1)(a). The word
“encountered” in Regulation 2(2) must be given
its
ordinary meaning which is to meet or come across unexpectedly. The
regulation does not require an individual to indicate an
intention to
apply for asylum immediately he or she is encountered, nor should it
be interpreted as meaning that when the person
does not do so there
and then he or she is precluded from doing so thereafter. The purpose
of subsection 2 is clearly to ensure
that where a foreign national
indicates an intention to apply for asylum, the regulatory framework
of the RA kicks in, ultimately
to ensure that genuine asylum seekers
are not turned away. It is clear that the appellants, when they were
detained at Lindela,
communicated to the Department’s officials
and enforcement officers by the letter referred to earlier in this
judgment that
they intended to apply for asylum. Once the appellants,
through their attorneys, indicated an intention to apply for asylum
they
became entitled to be treated in terms of Regulation 2(2) and to
be issued with an appropriate permit valid for 14 days, within
which
they were obliged to approach a Refugee Reception Office to complete
an asylum application …
[73] That does not mean that a decision on the
bona fides
of
the application is made upfront. Once the application has been made
at a Refugee Reception Office, in terms of s 21 of the RA,
the
Refugee Reception Officer is obliged to see to it that it is properly
completed, render such assistance as may be necessary
and then ensure
that the application together with the relevant information is
referred to a RSDO [Refugee Status Determination
Officer].
[74] In terms of s 22 of the RA an asylum seeker has the protection
of the law pending the determination of his application for
asylum.
To that end he or she is entitled to an asylum seeker permit
entitling a sojourn in South Africa. As can be seen from the

provisions of s 24(3) set out in para 67 above it is for the RSDO and
the RSDO alone to grant or reject an application for asylum.
In terms
of s 24(3)(c) the application could be rejected on the basis of being
‘unfounded’.
…
[78] Regulation 2(2) of the Refugee Regulations set out in para 70
above makes it even more clear that, once there is an indication
by
an individual that he or she intends to apply for asylum, that
individual is entitled to be issued with an appropriate permit
valid
for 14 days within which there must be an approach to a Refugee
Reception Office to complete an application for asylum. Read
with s
22 of the RA it is clear that once such an intention is asserted the
individual is entitled to be freed subject to the further
provisions
of the RA.
[79] …
[80] It follows ineluctably that once an intention to apply for
asylum is evinced the protective provisions of the Act and the

associated regulations come into play and the asylum seeker is
entitled as of right to be set free subject to the provisions of
the
Act.’
[13] Even if one were to accept that
Mr Ersumo’s story about his attempts to obtain refugee status
on reaching South Africa
is untrue, that does not mean that he does
not wish to apply for that status. When Mr Magadla, the Immigration
Officer, found him
at his cousin’s business premises he clearly
encountered him, within the meaning of regulation 2(2) of the Refugee
Regulations.
6
He had not yet made an application
for refugee status in terms of regulation 2(1). If he did not then
indicate his wish to apply
for refugee status, he had, by the time
the present proceedings were commenced, indicated such an intention.
Under regulation 2(2)
he was entitled to be issued with an
appropriate permit – clearly an asylum transit permit in terms
of
s 23(1)
of the
Immigration Act – valid
for 14 days
within which he was to approach a Refugee Reception Office in order
to complete an asylum application. The application
would then be
adjudicated by the Department of Home Affairs, which would, according
to
regulation 3(1)
, generally do so within a period of 180 days,
during which time Mr Ersumo would be under the obligations set out in
regulation 3(2).
If the application was found during this process to
be ‘manifestly unfounded, abusive or fraudulent’
7
the asylum seeker permit could be
withdrawn and he would then be subject to detention in terms of
s 23
of the
Refugees Act. All
of this flows from the judgment in
Bula.
[14] Counsel for the Minister and the
Director-General did not challenge the correctness of the judgment in
Bula.
His
submission, as it emerged in the course of argument, commenced with
the provisions of
regulation 2(1)(
a
)
of the Refugee Regulations. That requires an application for asylum
to be made ‘without delay’. Building on that foundation

he submitted that if, on all the facts in a particular case, there
has been an undue delay in applying for asylum then the immigration

authorities are not obliged to entertain an application for asylum
and the protection of the
Refugees Act is
lost. It was submitted that
before an applicant can rely upon that protection they must show that
there has been compliance with
the primary duty to report to the
authorities in order to apply for asylum. Stress was laid on the
point that this is in accordance
with international legal instruments
governing the treatment of refugees and applications for asylum.
[15] The difficulty with this
submission is that it is inconsistent with the emphatic terms of
regulation 2(2)
, which was held in
Bula
to be the starting
point of the enquiry.
8
Whilst
regulation 2(1)
says that an
application for asylum must be submitted without delay, neither it
nor the
Refugees Act prescribes
a time within which such an
application must be made, nor does the
Refugees Act sug5est
that
delay in making an application is of itself a ground for refusing an
otherwise proper claim for refugee status. The grounds
upon which an
application for asylum may be refused are set out in
s 24(3)
of
the
Refugees Act. They
are that the application is ‘manifestly
unfounded, abusive or fraudulent’ or simply ‘unfounded’.
There
is nothing to indicate that a meritorious application may be
refused merely on the grounds of delay in making the application.
[16]
Regulation 2(2)
is consistent
with this in that it foreshadows that, when the foreigner is
encountered by the immigration officer, they will be
in South Africa
in violation of the
Immigration Act. In
other words they will be an
illegal foreigner under that Act.
9
No distinction is drawn between one
type of illegal presence and another. In other words it makes no
difference whether the individual
entered the country and never
sought an asylum transit permit, or whether they obtained such a
permit and allowed it to lapse by
not reporting to a Refugees
Reception Office. Nor is there any reference to the duration of the
illegal presence, or to any mitigating
factors, such as poverty,
ignorance of these legal requirements, inability to understand any of
South Africa’s official languages
and the like. There is also
no reference to aggravating factors, for example, that their illegal
entry was deliberate and that
they have deliberately sought to avoid
the attentions of the authorities.
Regulation 2(2)
applies to any
foreigner encountered in South Africa, whose presence in this country
is illegal. It says, as this Court held in
Bula
,
that any such person who then indicates an intention to apply for
asylum must be issued with an asylum transit permit, valid for
14
days, and permitted to apply for asylum.
[17] There is no warrant in all this for the submission
that undue delay deprives the asylum seeker of the rights afforded by
regulation 2(2).
In any event counsel had difficulty in identifying
what would amount to undue delay. He accepted that the mere elapse of
14 days
from the time of entry into the Republic would not amount to
undue delay. He postulated, what he described as an extreme example,

the case of a person who entered the country illegally, settled,
established a business, married and had children who were attending

school, when their illegal status was discovered. However, it was
unclear whether he regarded such a case as beyond redemption
or
merely at the extreme outer limits of what would be tolerated. All
that these examples illustrate is that the suggested limitation
on
the right to apply for asylum lacks a foundation in the
Refugees Act
and
the Refugee Regulations.
[18] The proposed limitation is too vague and too
dependent on the subjective judgment of the immigration officer in
each case to
provide a secure basis for determining the rights of
asylum seekers. That was illustrated by the attempt to apply it to
the facts
of the present case. The respondents are not in a position
to refute Mr Ersumo’s allegation that he tried time and again
to apply for asylum at various Refugee Reporting Offices in different
towns, without success. At best for them there was a period
from his
last unsuccessful attempt in Cape Town on 20 July 2011 until his
arrest on 15 August 2011 during which he did not claim
to have tried
to apply for asylum. That is 26 days, a period of a little over three
and a half weeks. It is twelve days more than
the period afforded to
the holder of an asylum transit permit. Having accepted that
non-compliance with the 14 day period was not
decisive, counsel was
at a loss to explain why the additional 12 days in this case meant
that there had been undue delay.
[19] For those reasons the suggested
qualification to this Court’s judgment in
Bula
is not in my view justified. That means that the appeal
must succeed. Before leaving the topic of regulation 2(2), however,
it is
important that I record an important qualification to what I
have said about the effect of that regulation. Everything I have said

is
on the footing that we are
dealing with a first encounter by an immigration officer with an
illegal foreigner who has not made an
application for asylum. Nothing
in this judgment addresses the situation where an asylum transit
permit has been issued under regulation
2(2), where no application
for asylum is made and that permit lapses. It would be odd were the
regulation to mean that, if an immigration
officer thereafter
encountered the same foreigner and the foreigner again indicated a
desire to apply for asylum, an obligation
to issue a fresh asylum
transit permit would arise. However, it is unnecessary to express any
final view on this, as those are
not the facts before us.
[20] Counsel for Mr Ersumo submitted
that in addition to relief based narrowly on regulation 2(2) his
client is entitled to a declaratory
order that his original arrest
and detention were unlawful. There are two insuperable obstacles in
his path. The first is that
this was not relief sought in the
original notice of motion and the respondents were accordingly not
afforded an opportunity to
address such a claim. The second is that,
in the very similar factual circumstances of
Bula
,
it was held that the initial arrest and detention of the applicants
was lawful in terms of
s 34(1)
of the
Immigration Act. It
would
be entirely inappropriate in those circumstances for us to enter upon
that question. Mr Ersumo cannot be adversely affected
by that being
left to be dealt with, if necessary, on another day and in another
court.
[21] As regards relief that must follow upon the
sequence prescribed by
regulation 2(2)
in the light of the remaining
provisions of the
Refugees Act and
the
Immigration Act. Mr
Ersumo
must first be issued with an asylum transit permit valid for 14 days.
His continued detention will then on any basis become
unlawful and he
must be released. He will be obliged to apply for asylum within 14
days. If he does not do so he will again become
an illegal foreigner
and be subject to the relevant provisions of the
Immigration Act. In
order to ensure that he is not prevented from applying for asylum
within the 14 day period the Minister and Director-General, as
the
representatives of the Department of Home Affairs will be directed to
afford him priority when he reports to the Refugee Reception
Office
for that purpose. In order to facilitate this the order will provide
that he shall report at the Port Elizabeth office,
which is the one
closest to the place where he was living prior to his arrest and
detention, namely Willowmore. His counsel indicated
that this would
be acceptable. Once Mr Ersumo has made an application for asylum it
will be dealt with in the ordinary course and,
so long as he is in
possession of an asylum seeker permit under
s 22
of the
Refugees
Act, he
will not be susceptible to detention or deportation. Of
course, his entitlement to such a permit is subject to the Minister’s

right in the circumstances set out in
s 22(6)
of the
Refugees
Act to
withdraw the permit. However it is unnecessary at this time to
explore the Minister’s right to do that or the legal
consequences
of that occurring.
[22] In regard to costs an order was sought for costs to
include the costs of three counsel and to be on the attorney and
client
scale. I am not persuaded that either order would be
appropriate. The costs of two counsel should be allowed.
[23] In the result the appeal succeeds and it is ordered
that:
The appeal is upheld with costs, such costs to include
those of two counsel.
The order of the court below is set aside and replaced
with the following order:
‘
(a) The Second Respondent is
directed, in terms of
regulation 2(2)
of the regulations in terms of
the
Refugees Act 130 of 1998
, forthwith, and in any event not later
than 48 hours after the issue of this order, to issue the Applicant
with an asylum transit
permit valid for 14 days in terms of
s 23(1)
of the
Immigration Act 13 of 2002
and subject to such conditions as
ordinarily attach to such a permit.
Subject to his reporting at the Refugee Reception
Office in Port Elizabeth, within 14 days of receiving such permit,
for the
purpose of applying for asylum in terms of
s 21
of
the Refugees Act, and there applying for asylum, the First and
Second Respondents are interdicted from deporting the Applicant

from South Africa before the final determination of his
application for asylum, including any review or appeal in relation

thereto.
The First and Second Respondents are directed to
ensure that when the Applicant reports at the Refugee Reporting
Office in
Port Elizabeth, he shall immediately be dealt with and
assisted to make an application for asylum in accordance with the

provisions of the said
regulation 2(2).
It is declared that, upon completion of an asylum
application in terms of paragraph (c) above, the Applicant will be
entitled
to be issued with an asylum seeker permit in terms of
s 22
of the
Refugees Act.
Upon
being furnished with an asylum transit permit in
terms of paragraph (a) above the Applicant will be entitled to his
immediate
release from detention at Lindela Detention and Holding
Facility in Krugersdorp and shall not thereafter be subject to
detention
in terms of either the
Refugees Act or
the
Immigration
Act for
so long as he is in possession of a valid asylum seeker
permit.
The First and Second Respondents are directed to pay
the costs of this application.’
M J D WALLIS
JUDGE OF APPEAL
For appellant: Anton Katz SC (with him Mushahida
Adhikari and Ashley Moorhouse)
Instructed by:
McWilliams & Elliott Inc, Port Elizabeth
Webbers Attorneys, Bloemfontein.
For respondents: G Bofilatos SC (with him S Rugunanan)
Instructed by:
State Attorney, Port Elizabeth
State Attorney, Bloemfontein
1
Section
23(2)
of the
Immigration Act.
2
Arse
v Minister of Home Affairs
[2010] 3
All SA 261
(SCA).
3
Bula
& others v Minister of Home Affairs
[2011]
ZASCA 209.
4
Now
the
Immigration Act.
5
Abdi
v Minister of Home Affairs
2011 (3) SA
37
(SCA).
6
Regulations
promulgated in terms of
s 38
of the
Refugees Act by
GN R366 in
GG
6779
dated 6 April 2000.
7
Section
22(6)(b)
of the
Refugees Act.
8
See
para 72.
9
In
s 1
of the
Immigration Act an
illegal foreigner is defined as
meaning a foreigner who is in the Republic in contravention of that
Act.