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2021
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[2021] ZAGPJHC 141
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Mafadi and Another v The Minister of Home Affairs and Another (27878/2021) [2021] ZAGPJHC 141 (6 July 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
HELD
AT JOHANNESBURG
CASE
NO: 27878/2021
DATE:
2021-07-06
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between
MAFADI
HERBERT
First Applicant
MUSANA
LUZAKE
Second Applicant
and
THE
MINISTER OF HOME AFFAIRS
First Respondent
THE
DIRECTOR GENERAL,
DEPARTMENT
OF HOME AFFAIRS
Second Respondent
JUDGMENT
VICTOR
J :
Introduction
[1]
The applicants seek to set aside their arrest and detention as
unlawful and seek to
be released from Lindela Detention Centre with
immediate effect. The applicants have been convicted in the
Magistrates Court of
contravening the Immigration Act.
[1]
At issue here is
whether the respondents can deny the applicants an opportunity to
apply for asylum status before deportation in
terms of the Refugee
Act
[2]
notwithstanding
that they have been convicted of an immigration offence by a
Magistrate together with an order of deportation. A
further issue is
whether they can be released from Lindela Detention Centre pending
the outcome of the legal processes that they
intend to pursue.
Relevant background
facts.
[2]
The first and second applicants are adult males who fled Uganda when
their gay relationship
was discovered. Members of their community and
their family threatened to kill them. Being gay in Uganda carries
great risk.
[3]
[3]
They fled Uganda and in November 2020 entered South Africa through
Zimbabwe through
an unofficial port of entry. They did not apply for
asylum. They lived with a pastor in Makhado in the Limpopo Province.
He advised
they should move to Nongoma in KZN. On 14 April 2021 they
were arrested and brought before the Magistrate at the Magistrates
Court,
Nongoma. They always intended to apply for asylum, but their
hesitation in doing so was based on their fear that they might face
persecution in South Africa as well.
[4]
On 26 April 2021 they were convicted of contravening the Immigration
Act and sent
to the Lindela Detention Centre in Gauteng to await
deportation back to Uganda. They seek by way of urgency to be
released from
Lindela. The respondents oppose the relief. The first
respondent is the Minster of Home Affairs cited in his official
capacity
and responsible for the administration of the Refuge Act.
The second respondent is the Director General of Home Affairs.
[5]
On 14 April 2021, the applicants were apprehended by members of the
South African
Police at Nongoma KZN province and charged with
contravening the Immigration Act. The applicants tried to tell the
arresting officers
that they were seeking asylum in South Africa, and
required an opportunity to make such application, but their requests
were ignored.
They were prosecuted, convicted and sentenced at the
Nongoma Magistrate’s Court in terms of the Immigration Act and
transferred
to Lindela Detention Centre in Gauteng for deportation
where they are still being held.
Waiver
of a constitutional right.
[6]
The respondents submit that the applicants voluntarily agreed to be
deported and signed
documents to that effect. Various forms were
signed by the applicants and upon analysis of the contents of the
documents it is
questionable whether they understood their legal
rights. For example, in form 29 they acknowledge that they have
rights in terms
of section 34(1) (a) and (b) of the Immigration Act
and the right to appeal the decision or at any time request the
officer attending
to have their detention confirmed by a warrant. It
is clear from the record that these admissions were done without
legal advice,
without an interpreter being present and are suggestive
of a case contrary to what a persecuted refugee would agree to.
[7]
Form 29 also reflects that the applicants waived their right to
appeal the decision
to deport them. A waiver of legal rights is not
easily presumed, and the onus is heavily on one who alleges it to
prove it.
[4]
Although waiver is
more often used within the context of contract, the application of
waiver to constitutional rights still needs
to be finally pronounced
upon by the Constitutional Court. There is no evidence to suggest the
applicants understood and were aware
of their legal rights sufficient
to amount to a genuine waiver.
[5]
The respondents
have simply not produced that evidence. Based on the facts in this
case the purported waiver by the applicants cannot
confer validity on
their agreement to be deported. The respondents in charging and
convicting the applicants and getting them to
sign these forms
constitutes a series of blunders that demonstrate the complete
disregard for the Refugees Act and of course the
entire
jurisprudential context of refugee law in this country. The waiver of
a constitutional right and rights in terms of the
United Nations
Convention on Refugees 1951 inure to an individual refugee and
arguably may never be waived.
[8]
Like in the case of
Mohamed
the point of waiver of a constitutional right was not fully argued.
In this case before me this principle was also not fully argued
but
certainly can be inferred from the arguments presented to me on
behalf of the applicants.
[6]
Nevertheless, in
order for consent to deportation to be enforceable
,
it would have to be a fully informed consent and one clearly showing
that the applicants were aware of the exact nature and extent
of the
rights being waived in consequence of such consent. Some
constitutional rights inure to an individual and do not fall to
be
excised and may arguably never be waived. The principle of waiver was
approved in
Mohamed
where
a number of authorities were referred to. Essentially any waiver 'is
dependent upon it being clear and unequivocal' and must
be made 'with
full knowledge of the rights the procedure was enacted to protect and
of the effect the waiver will have on those
rights in the process.
[7]
The
issues of waiver of a constitutional right was not finally pronounced
upon in
Mohamed
.
[9]
A later case on the question of whether
a
constitutional right can be waived is that of
Occupiers,
Berea V De Wet.
Mojapelo AJ in a unanimous
judgment found that based on the facts in the case it was unnecessary
to decide whether the rights to
eviction are capable of waiver.
[10]
Mojapelo AJ noted that the applicants in that case and the amicus
curiae argued that:
“
the
[constitutional] rights are therefore incapable of being waived
because they are for the benefit of the public at large. Even
if they
were capable of waiver, such waiver would need to be free, voluntary
and informed.”
[8]
The
Court found:
“
It
has not been disputed that the applicants were not informed of any of
these rights. It must therefore be accepted that they were
not aware
of any such rights. Given that the applicants were not aware of their
rights, the factual consent that they gave was
not informed. Their
consent is therefore not legally valid. It is not binding on
them.”
[9]
[11]
The apparent ease with which the
applicants waived their constitutional rights and indeed their rights
emanating from the United
Nation Convention of Refugees (the
Convention) by signing the forms is startling.
Article
1 of the Convention defines the term “refugee” and in
subsection 2 provides
that if there is a
well-founded fear of being
persecuted for reasons of race, religion, nationality, membership of
a particular social group or political
opinion,
and
that person is outside the country of his nationality and is unable
or,
owing to such
fear, is unwilling to avail himself of the protection of that
country
.
[12]
If indeed the applicants waived these rights then at the very least
they should have had legal
representation and interpreters confirming
they unequivocally waived all these rights both in terms of the
Refugee Act and the
Convention.
The most
plausible explanation is that the rights were put to the applicants
in a mechanical manner without interpretation. There
is no indication
that a legal representation was present when they signed and that
their rights were explained to them and were
understood. I cannot
accept that they voluntarily waived their rights in these
circumstances.
[13]
In this matter neither the applicants nor the respondents fully
argued that these rights could
be waived. The applicants did however
assert that the answers on the forms were not accurately recorded and
there is no suggestion
that they knew they were waiving the rights
they had as refugees. I find that the rights embodied in section 2 of
the Refugee Act
cannot be waived unless the protections of legal
representation and the presence of an interpreter are in place and
that the consent
is an informed one.
[10]
Section 2 of the Refugees Act is an absolute protection if a person
can prove that should they be returned to their country of
origin
they will be persecuted for example because of their social grouping.
[14]
In terms of Form 1 which the applicants signed, it is recorded that
they have been informed that
they may request a review of the
decision. But if their conveyance arrived before this, they would
have to await the outcome in
the country of their origin. This is
contrary to the refugee jurisprudence set out in many cases before
this and in particular
the case of
Ruta
which set out in the clearest and definitive terms the rights of
refugees.
[11]
For example one of
the forms contains an ambiguous acknowledgment “I intend /do
not intend to request a review of the decision”.
The
appropriate election is not reflected. The ambiguity goes further “My
written request is attached /will be submitted
within three days”
The appropriate election is not reflected.
[15]
The respondents submit that this Court does not have jurisdiction to
entertain the matter since
there is a court order in place directing
that the applicants must be deported forthwith. The respondent also
submits that the
applicants pretended not to be able to sign their
names and used their thumbprints instead. Upon an analysis of the
documentation
which form part of the record it is quite clear that
the document itself requires that a thumbprint be applied as well as
the signature.
It is clear that the signature of the first applicant
has been applied above his left thumbprint. It is also clear from the
record
that the Immigration Officer conducting the investigation did
not indicate that there was interpreter present. Nor is it clear from
the record that the applicants understood the rights that were being
put to them by the Investigating Officer and to which they
were
appended their signature in the affirmative.
[16]
There is reference to the word
vacation
in their forms which form part of the record as being the reason for
their presence in South Africa. Both applicants contend that
it is
not a word they have in their vocabulary, and they denied making such
a statement to the Investigating Officer. It is also
unclear from the
record whether the applicants understood their rights during the
court hearing. There is no reference on the record
to indicate that
they were given an opportunity to obtain legal representation.
[12]
The magistrate
found them guilty of entering or remaining in the Republic of South
Africa without a valid permit of passport. Their
sentence was a fine
of R3000 or in default to undergo six months imprisonment wholly
suspended for a period of five years on condition
that the applicants
were not convicted of contravening section 49 of the Immigration Act.
The magistrate also ordered that they
be deported back to Uganda.
[17]
An analysis of the forms records that the applicants were informed
that they were persons whose
rights were adversely affected. Form 2
in terms of section 7(1)(g) read with section 8(3) and regulation
7(2) records that they
understood they would be deported for being in
South Africa illegally and more importantly had 10 working days from
receipt of
the notice to make written representations to the second
respondent to review the decision.
[18]
The document records that they understood its contents and that they
“intend/do not intend”
to make representations in terms
of section 8(2) and the document goes on to state that they may
within 10 working days from the
receipt of this notice make written
representations to the director-general to review the decision. The
ambiguity as to whether
they intended or did not intend to make
representations demonstrates in my view that the applicants were
unaware of their legal
rights and in any event the forms were not
accurately completed.
[19]
And so the sorry saga of incomplete forms
continues with not an iota of plausible evidence that the applicants
knew that they were
waiving their legal rights to which they were
entitled to as refugees.
[20]
In the absence of full
argument on this point as to whether a constitutional right can be
waived by both counsel and the possible
assistance of amici, I am
satisfied based on the facts in this case, the applicants have not
waived their rights. This is fortified
by the analysis of the forms
referred to above.
The
scheme and harmonisation of the Refugee and Immigration Act
[21]
The Refugee and Immigrations Act have to be read in harmony. Nothing
in the amended Act changes
this. Cameron J in
Ruta
held that:-
“
The
two statutes can, as already indicated, be read in harmony: the
Immigration Act affords an immigration officer a discretion
whether
to arrest and detain an illegal foreigner. That discretion must, in
the case of one seeking to claim asylum, be exercised
in deference to
the express provisions of the Refugees Act that permit an application
for refugee status to be determined. The
two statutes can, as already
indicated, be read in harmony: the Immigration Act affords an
immigration officer a discretion whether
to arrest and detain an
illegal foreigner. That discretion must, in the case of one seeking
to claim asylum, be exercised in deference
to the express provisions
of the Refugees Act that permit an application for refugee status to
be determined.
[13]
Footnotes
omitted.
[22]
The applicants upon arrest did not want to set out the details of
their asylum claim because
of their fear of what would happen to them
in South Africa. In any event they are entitled to their
confidentiality because of
the confidential nature of the process at
that stage. Section 21(5) of the Refugee Act makes provision in the
subsection
for the
confidentiality of asylum applications and the information contained
therein must be ensured at all times. This aspect is
relevant to what
the respondents submit should have been divulged by the applicants to
the Investigating Officer in terms of the
Immigration Act.
Importantly it is only the Refugee Status Determination Officer who
can make the determination and
who is
empowered to make the decision as to whether the applicants are valid
authentic asylum seekers or not. The applicants at
that stage would
have to divulge all that information to him or her. The further
question is whether their arrest and deportation
in terms of the
Immigration Act can trump their rights in terms of the Refugee Act.
[23]
In terms of s 21(2) of the Refugee Act in relevant part “the
Refugee Reception Office
must
accept
the application form from the applicant; and, where necessary, must
assist the applicant in this regard, may conduct such enquiry
as he
or she deems necessary in order to verify the information furnished
in the application, and must submit any application received
by him
or her together with any information relating to the applicants which
he or she may have obtained, to a Refugee Status Determination
Officer to deal with it in terms of section 24 of the Refugee Act.”
[14]
[24]
It is clear therefore that the amendment to the Act did not exclude
this existing right which
asylum seekers have. The amendment to the
Act has not removed the right to apply for asylum. The applicants
have not had an opportunity
to apply for asylum. The right to apply
for asylum was dealt with in
Ruto,
Cameron J stated:
“
[28]
The right to seek and enjoy asylum means more than merely a
procedural right to lodge an application for asylum — although
this is a necessary component of it. While states are not obliged to
grant asylum, international human rights law and international
refugee law in essence require states to consider asylum claims and
to provide protection until appropriate proceedings for refugee
status determination have been completed.
[29]
In sum, all asylum seekers are protected by the principle of
non-refoulement, and the protection applies as long as the claim
to
refugee status has not been finally rejected after a proper
procedure.”
[15]
[25]
The applicants also contend that the quartet of cases on refugee
jurisprudence as set out in
Abdi,
Arse, Bula
and
Ersumo
,
remains in place.
[16]
The applicants
also claim the right to dignity and the right to life as set out in
Ruta
.
A return to Uganda for the applicants will imperil their right to
life and to dignity because of the social group they belong
to. In
Ruta
Cameron J also referred to the relevant amendments at that stage and
found that:
“
It
followed 'ineluctably' that, once an intention to apply for asylum
was evinced, the protective provisions of the Refugees Act
and
regulations come into play and 'the asylum seeker is entitled as of
right to be set free subject to the provisions of the [Refugees]
Act”
[17]
[26]
The law is therefore settled that once a refugee demonstrates an
intention to apply for asylum
the
protective provisions
of the
Refugee Act must apply. South Africa has to proceed in terms of
established standards and principles of international law.
The
preamble to the Refugees Act also provides as follows:
“
WHEREAS
the Republic of South Africa has
acceded
to the 1951 Convention Relating to Status of Refugees, the 1967
Protocol Relating to the Status of Refugees and the I969 Organization
of African Unity Convention Governing the Specific Aspects of Refugee
Problems in Africa as well as other human rights instruments,
and has
in so doing, assumed certain obligations to receive and treat in its
territory refugees in accordance with the standards
and principles
established in international law.”
[27]
Section 2 of the Refugees Act provides that:
“
notwithstanding
any provision of this Act
or any other law to
the contrary
, no
person may be refused entry into the Republic, expelled, extradited
or returned to any other country or be subject to any similar
measure, if as a result of such refusal, expulsion, extradition,
return or other measure, such person is compelled to return to
or
remain in a country where- (u) he or she may be subjected to
persecution on account of his or her race, religion, nationality,
political opinion
or
membership of a particular social group;
or (6) his or her life, physical safety or freedom would be
threatened on account of external aggression, occupation, foreign
domination or other events seriously disturbing or disrupting public
order in either part or the whole of that country.
[28]
Until the matter is finally determined by the Refugee Status
Determination Officer, the principle
of non-refoulement applies,
meaning that asylum seekers cannot be forcibly returned
to
a country where they are liable to be subjected to persecution.
Section 3 in relevant part of the Refugees Act provides:
Subject to Chapter 3, a person
qualifies for refugee status for the purposes of this Act if that
person- (u) owing to a well-founded
fear of being persecuted by
reason of his or her race, tribe, religion, nationality, political
opinion or membership of a particular
social group, is outside the
country of his or her nationality and is unable or unwilling to avail
himself or herself of the protection
of that country, or, not having
a nationality and being outside the country of his or her former
habitual residence is unable or,
owing to such fear, unwilling to
return to it;
[29]
Cameron J in
Ruta
described it thus:
“
It
is a remarkable provision. Perhaps it is unprecedented in the history
of our country's enactments. It places the prohibition
it enacts
above any contrary provision of the Refugees Act itself — but
also places its provisions above anything in any
other statute or
legal provision. That is a powerful decree. Practically it does two
things. It enacts a prohibition. But it also
expresses a principle:
that of non-refoulement, the concept that one fleeing persecution or
threats to 'his or her life, physical
safety or freedom' should not
be made to return to the country inflicting it.
At
this stage of the proceedings neither the respondents nor this Court
can determine whether the applicants fall this and accordingly
the
applicants must be given an opportunity.”
Respondents’
submissions.
[30]
The respondents contended that because the Magistrate’s order
still stands it cannot be
set aside by this Court absent the
appropriate procedure of appeal or review nor can the implementation
of the order be delayed.
The respondents challenge the jurisdiction
of this Court to release the applicants whilst the magistrate’s
order is in place.
There has been a gross violation of the applicants
rights both at the Magistrate’s Court and by the Immigration
Officer in
placing the applicants in a position where they waived
their legal rights. The applicants dispute the information recorded
by the
Immigration Officer and contend that it is incorrect. The
respondents contend that the applicants had ample opportunity to
advise
the magistrate of the alleged falsities and irregularities and
did not do so. The respondents contend that the applicants failed
to
place before this Court, the fact that have actually been convicted
by a Court of law.
[31]
In terms of section 165 of the Constitution, the Magistrates Court is
an established court and
in terms of section 165(1) the judicial
authority of the Republic is vested in the courts. The courts are
independent and subject
only to the Constitution and the Rule of Law.
The importance of ensuring that court orders are obeyed was referred
to by the Constitutional
Court in
Tasima I
,
“
The
obligation to obey court orders 'has at its heart the very
effectiveness and legitimacy of the judicial system'. Allowing
parties
to ignore court orders would shake the foundations of the
law, and compromise the status and constitutional mandate of the
courts.
The duty to obey court orders is the stanchion around which a
state founded on the supremacy of the Constitution and the rule of
law is built.
[18]
[32]
In
SALC
,
it was held that “if the State, an organ of State or State
official does not abide by court orders, the democratic edifice
will
crumble stone by stone until it collapses, and chaos ensues.”
[19]
[33]
In the case of the
Secretary
of the Judicial Commission,
Khampepe
J stated that it cannot be gainsaid that orders of court bind all to
whom they apply.
[20]
Section 165(5) of
the Constitution itself provides that an order or decision binds all
persons to whom it applies. The reason being
that ensuring the
effectiveness of the Judiciary is an imperative. It is one of the
foundational principles of our Constitution.
Section 165(5) of
the Constitution that an order of court binds all persons to whom it
applies. In
Mjeni,
the Court stated that “there is no doubt, I venture to say,
that [complying with court orders] constitutes the most important
and
fundamental duty imposed upon the State by the Constitution”.
[21]
[34]
It was submitted by the respondents that
the applicants did not advise the Magistrate on 26 April 2021 of
their reason for coming
to the country. The respondents claim that
the applicants claimed to be on vacation, and this was inserted by
the Investigation
Officer in the relevant form.
[35]
The applicants’ counsel argued that there was no need to appeal
or review the magistrate’s
decision. The charge related to an
immigration offence and because an immigration officer can sign a
warrant for their release
it is unnecessary to set aside the
Magistrate’s Court order. Should the applicants wish to
challenge the decision which was
confirmed by the magistrate the
remedy would be the process through section 8 of the Immigration Act
and not judicial appeal or
review. It was submitted on behalf of the
applicants that the net effect is that the decision of the magistrate
is one that confirms
the Immigration Officer’s decision and not
a judgment per se and it is not one which can only be set aside by
appealing the
decision. I cannot accept this submission. The court
order stands until set aside. A process which involves an official
given certain
powers in terms of another statute cannot override a
court order. This does however not preclude a higher court from
providing
relief pending the conclusion of the asylum application and
the appeal or review process.
The effect of the
amendment to the Refugee Act
[36]
The applicants submit notwithstanding their arrest, conviction and
deportation they are in law
entitled to have their asylum
applications determined by the Refugee Status Determination Officer
(RSDO) in terms of section 21
of the Refugee Act. In relevant part,
section 21(1) of the Act was amended as follows:
“
(1)
An application for asylum must be made in person in accordance with
the prescribed procedures,
within
five days of entry into the Republic,
to a Refugee Status Determination Officer at any Refugee Reception
Office or at any other place designated by the Director - General
by
notice in the Gazette”;
By
the insertion of (1A) “that prior to an application for asylum,
every applicant must submit his or her biometrics or other
data, as
prescribed, to an immigration officer at a designated port of entry
or a Refugee Reception Office.”
[37]
It is self-evident that the applicants cannot comply with those
requirements as they have been
in the country since November 2020 and
in any event all the refugee reception offices have been closed for
some time because of
the Covid pandemic. The applicants wanted to
approach the refugee reception office before they were arrested in
order to legalise
their stay, but all the refugee offices have been
closed since March 2020. This was common cause. In addition, as
required by the
amendment, they have not given their biometric data
to an immigration officer whether at a designated port of entry or at
a Refugee
Reception Office. This too has not been done and in any
event now impossible because of Covid shut down. This patent
inability
to comply with these amended provisions does not preclude
the applicants from applying for asylum.
[38]
The further relevant part of the amendment provides that when the
applicants apply for asylum
at a Refugee Reception Office they will
have to show
good cause
for their illegal entry and stay in
South Africa. Regulation 8(3) of the Refugee Act requires
“
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.”
[39]
In terms of regulation 8 (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).
[40]
In this case it is not apparent from the record whether the
Magistrate granted the applicants
an option to pursue their rights in
terms of the Refugee Act. There is no court record attached,
recording whether the Magistrate
gave the applicants an opportunity
to
show good cause
in terms of sub regulations (3) and (4).
[41]
The principle of
good cause
is an elastic and flexible
concept. The amended regulation 8(3) itself attributes reliance on
Article 31(1) of the Convention.
The respondents themselves have
adopted a fatal contradictory approach by deporting the applicants
without granting them an opportunity
to show good cause.
If
the concept of good cause is interpreted within the ambit of the
field of jurisprudence of human rights then it should not pose
any
difficulty for the applicants to show good cause. If a refugee has a
well-founded fear of persecution in Uganda then this is
a substantive
jurisdictional fact which of itself should constitute good cause.
[42]
The applicants should not be denied an opportunity to at least have a
hearing to show good cause.
It requires little effort on the part of
the respondents to ascertain the nature of the threats to members of
the LBGTI community
in Uganda. The applicants face human rights
abuses that appear to be systemic in Uganda, should they be returned.
[43]
Notwithstanding that the amendment and the regulations make it more
difficult for asylum seekers
especially those who have entered the
country at an illegal point of entry, the entire jurisprudential
framework pertaining to
refugees remains intact. The respondents were
not able to refer the Court to any substantive jurisprudential
changes pertaining
to the amended Refugee Act and Regulations which
bars the applicants from exercising their constitutional and
Convention rights.
Fair
trial rights
[44]
Section 35 of the Constitution guarantees a detainee and an accused
person fair trial rights.
It is unclear whether these fair trial
rights as required by the Constitution were explained to the
applicants prior to the proceedings
when they were prosecuted in
terms of the Immigration Act. This is not evident from the record.
The record does not reflect whether
the applicants were given an
opportunity to pursue their rights in terms of the Refugee Act and
perhaps postpone the proceedings
in terms of the Immigration Act.
Both sections 35(2) and (3) of the Constitution protects persons
detained and accused respectively.
It is not recorded whether the
applicants either after their detention or before the trial commenced
were explained these rights
at all or in a language they understood.
[45]
In my view in the absence of complete clarity as to whether their
rights were properly and fully
explained at the stage prior to
conviction, this of itself is a violation of their rights to a fair
trial. In terms of section
35 (2) (c ) everyone who is detained, such
as the applicants were, has a right
whilst detained
by the
state to have assigned a legal practitioner at state expense, if
substantial injustice would otherwise result, and to be
informed of
this right promptly. In terms of section 35(3)(f)
every accused
person has the right to choose, and be represented by, a legal
practitioner, and to be informed of this right promptly. In terms
of
section 35(2)(g) an accused person has the right to have a legal
practitioner assigned by the state and at state expense, if
substantial injustice would otherwise result, and to be informed of
this right promptly. In addition, in terms of section 35(4)
of the
Constitution whenever this section requires information to be given
to a person, that information must be given in a language
that the
person understands. There is nothing on the record which reflects
that the magistrate applied these principles.
[46]
The continued detention of the applicants at Lindela and the order of
deportation is the result
of the infringement of their fair trial
rights.
Right
to be released.
[47]
The applicants seek their immediate release from Lindela. The
respondents object to this as there
is a court order in place
deporting them. The respondents submit that the court order must be
obeyed even if it is wrong. Of course,
the law is clear that court
orders must be obeyed. In the circumstances of this case, however,
the respondents have not provided
any basis why this Court cannot
place the deportation in abeyance pending the challenge to the order
made at Nongoma Magistrates
Court and to allow the applicants their
constitutional right to apply for asylum.
[48]
The very amended regulation 8(3) on which the respondents rely,
continues to embrace the principle
in Article 31(1) in the Convention
which provides:
That:
“
1.
The Contracting States shall not
impose
penalties
, on account
of their illegal entry or presence, on refugees who, coming directly
from a territory where their life or freedom was
threatened in the
sense of Article 1, enter or are present in their territory without
authorization, provided they present themselves
without delay to the
authorities and show good cause for their illegal entry or presence.”
[49]
Continued incarceration at Lindela would be such a penalty as
envisaged in Article 31(1) of the
Convention. The respondents have
not demonstrated that continued detention is necessary. Whilst
regulation 8(3) does not mention
the next subsection 2 in Article 31,
South Africa as a contracting party would also have to recognises the
free movement of refugees
and this would include their release.
Article 31(2) in relevant part provides:
“
2.
The Contracting States shall not apply to the movements of such
refugees restrictions
other
than those which are necessary
and such restrictions shall only be applied until their status in the
country is regularized or they obtain admission into another
country..”
[50]
The continued detention of the applicants in Lindela constitutes an
unnecessary restriction of
movement which is contrary to Article
31(2). The respondents have failed to show that the detention is
necessary.
Conclusion
[51]
It follows therefore that South Africa as a contracting state to the
Convention, cannot penalise
the applicants any further by continuing
to incarcerate them at Lindela Detention Centre. Their movements
cannot be restricted.
The respondents are not however precluded from
ordering the applicants to report to a Refugee Reception Office,
where the applicants
must apply for asylum. Section 22(1) of the
Refugees Act permits the refugee “while awaiting the
adjudication of their application
in terms of section 21(1) to
request to be issued with an asylum seeker visa allowing the
applicant to remain in the Republic temporarily,
subject to such
conditions as may be imposed, which are not in conflict with the
Constitution or International Law
.” This is another
example where the amendment fully recognises that the conditions
cannot conflict with the Constitution
as it must, but also
International Law.
[52]
The continued detention of the applicants cannot be justified and is
unlawful. The applicants
are being deprived of their liberty and an
urgent order for their release is justified. Counsel on behalf of the
applicants submits
that there is no jurisprudential basis for their
detention and that they are being treated contrary to the laws of
this country
and the international treaties to which South Africa is
a signatory. Counsel on behalf of the applicants correctly submits
that
they do not have an alternative remedy, they will suffer
irreparable harm by virtue of their detention and without an
opportunity
to exercise their rights in terms of the Refugees Act.
They suffer irreparable harm with each day of detention. In my view
it is
appropriate for them to be released on condition they make the
necessary application for asylum and challenge the orders made by
the
Magistrate at Nongoma Magistrates Court. The balance of convenience
favours their release to enable them to have an opportunity
to apply
for asylum and for the reasons already stated, not to be incarcerated
at Lindela Detention Centre by virtue of their rights
in terms of the
Constitution and the Convention.
[53]
The applicants have been successful, and costs should follow the
result.
Order
1.
This application is heard on an urgent basis in terms of Rule
6(12)(a).
2.
The first applicant shall by 31 August 2021 institute proceedings
to
appeal or review the orders of the District Court, Nongoma case
numbers B50/2021 and 89/04/2021 handed down on 26 April 2021.
3.
The second applicant shall by 31 August 2021 institute proceedings
to
appeal or review the orders of the District Court, Nongoma case
numbers B49/2021 and 88/ 04/2021 handed down on 26 April 2021.
4.
Subject to the applicants approaching the Refugee Office as
contemplated in prayers 6 below and the completion of the proceedings
referred to in prayers 2 and 3 above, the first and second
respondents are interdicted from deporting the applicants unless and
until:
4.1
their status under the Refugee Act, 130 of 1998, has been lawfully
and finally determined; and
4.2
the proceedings referred to in prayers 2 and 3 above have been
completed.
5.
The first and second respondents are directed to release the
applicants forthwith.
6.
It is declared that the applicants shall be entitled to remain
in the
Republic of South Africa to a date, whichever is the later:
6.1
for a period of 5 days after the refugee reception office re-opens,
in order to allow them to approach a refugee reception office;
and
6.2 the finalisation of the proceedings referred to in prayers 2 and
3 above.
7.
Pending the finalisation of the applicants’ claims, the
first
and second respondents are directed, upon submission by the
applicants of their asylum application, to accept the applicants’
asylum application and to issue them with a temporary asylum seeker
permit in accordance with Section 22 of the Refugee Act:
7.1
including the exhaustion of their right of review or appeal in terms
of Chapter 3 of the Refugee’s Act and the
Promotion of
Administrative Justice Act 3 of 2000
provided that the applicants
applies for review or appeal in the time periods as afforded by him
in terms of Chapter 3 of the Refugee
Act and the Promotion of
Administrative Justice Act 3 of 2000; and until
7.2
The completion of the proceedings referred to in prayer 2 and 3
above.
8.
The first and second respondents to pay the costs of this application
including the 23 and 30 June 2021, jointly and severally, the one
paying the other to be absolved.
Victor
J
Judge of the High Court
Counsel
for Applicant: Ms Lipschitz
Counsel
for first and second respondent: Adv N Nharmuravate
State
attorney.
[1]
Immigration Act 13 of 2002
[2]
Refugee Act 130 of 1998
[3]
The
Uganda
Anti-Homosexuality Act, 2014
was
passed on 17 December 2013 with a punishment of
life
in prison
for "aggravated homosexuality".
"Where
is it illegal to be gay?"
.
BBC
News
.
10 February 2014. Retrieved 7 January
2017
.
LGBT
people continue to face major discrimination in Uganda, actively
encouraged by political and religious leaders. Violent and
brutal
attacks against LGBT people are common, often performed by state
officials. Households headed by same-sex couples are
not eligible
for the same legal protections available to opposite-sex couples.
Same-sex marriage has been constitutionally banned
since 2005.
Vigilante torture, beatings, and executions are tolerated.
[4]
Gross v
Unity Cafe
1948
(3) SA 1164
(C) *at 171
[5]
Further, being a matter of intention, election or waiver can only
occur when the party concerned had full knowledge of the legal
right
which he is said to have waived, and of the facts under which, or
from which, the right arose (
Ex
parte Sussens
1941 TPD 15
at 20; upra [24] para 17; and
Borstlap
v Spagenberg en Andere
1974
(3) SA 695
(A) at 704). As stated by Steyn CJ in
Hepner
v Roodepoort-Maraisburg Town Council
1962
(4) SA 772
(A) at 778H – 779A:
'In the ordinary case of
waiver, the facta probanda would be full knowledge of the rights in
question and express waiver or waiver
by plainly inconsistent
conduct, knowledge of a particular kind and surrender of the right
in a particular manner.'
[6]
Mohamed
and another v President of the Republic of South Africa and others
(society for the abolition of the death penalty in
South Africa and
another intervening)
2001
(3) SA 893 (CC)
[7]
Ibid 6
[8]
Occupiers,
Berea v De Wet No and another
2017 (5) SA 346
(CC) at para 33
[9]
Ibid para 33
[10]
Section 2 of the Refugee Act provides
Notwithstanding
any provision of this Act or any other law to the contrary, no
person may be refused entry into the Republic,
expelled, extradited
or returned to any other country or be subject to any similar
measure, if as a result of such refusal, expulsion,
extradition,
return or other measure, such person is compelled to return to or
remain in a country where- (u) he or she may be
subjected to
persecution on account of his or her race, religion, nationality,
political opinion or membership of a particular
social group; or (6)
his or her life, physical safety or freedom would be threatened on
account of external aggression, occupation,
foreign domination or
other events seriously disturbing or disrupting public order in
either part or the whole of that country.
[11]
Ruta v
Minister of Home Affairs
2019
(2) SA 329 (CC)
[12]
In terms of s 35(2)(b) of the Constitution '(e)veryone who is
detained . . . has the right . . . to choose, and to consult with,
a
legal practitioner, and to be informed of this right promptly'.
[13]
Ruta
para 46 – footnotes omitted
[14]
The amendment in 2020 to the Act did not change this
[15]
Ruta
see ibid 9
[16]
Abdi
and Another v Minister of Home Affairs and Others
2011
(3) SA 37
(SCA) ([2011]
3 All SA 117).
Arse
v Minister of Home Affairs and Othe
rs
2012 (4) SA 544
(SCA)
(2010 (7) BCLR 640
;
[2010] 3 All SA 261
;
[2010] ZASCA 9).
Bula
and Others v Minister of Home Affairs and Others
2012 (4)
SA 560
(SCA) ([2011] ZASCA 209).
Ersumo
v Minister of Home Affairs and Others
2012 (4) SA 581
(SCA).
[17]
Ibid ft 5 para 18
[18]
Department
of Transport v Tasima (Pty) Limited
[2016] ZACC 39
;
2017 (2) SA 622
(CC);
2017 (1) BCLR 1
(CC) (
Tasima
I
) at
para 183.
[19]
Southern
Africa Litigation Centre v Minister of Justice and Constitutional
Development
2015 (5) SA 1
(GP) (
SALC
)
at para 37.2.In the
[20]
Secretary
of the Judicial Commission of Inquiry into Allegations of State
Capture, Corruption and Fraud in the Public Sector including
Organs
of State v Zuma and Others
[2021]
ZACC 18
[21]
Mjeni v
Minister of Health and Welfare, Eastern Cape
2000 (4) SA 446
(Tk) at 452C-E, which was cited by Kirk Cohen J
in
Federation
of Governing Bodies of South African Schools v MEC for Education,
Gauteng
[2016]
ZACC 14
;
2016 (4) SA 546
(CC);
2016 (8) BCLR 1050
(CC) at 678G-679A.