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[2021] ZAGPJHC 565
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Hassim v The Minister of Home Affairs and Another (27877/2021) [2021] ZAGPJHC 565 (21 July 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 27877/2021
REPORTABLE:
YES / NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED.
Date:
21/7/2021
In
the matter between:
HASSIM
ALLAMIN
APPLICANT
And
THE
MINISTER OF HOME
AFFAIRS
1
ST
RESPONDANT
THE
DIRECTOR GENERAL DEPT OF HOME AFFAIRS
2
ND
RESPONDANT
JUDGMENT
MAKUME
J
:
[1]
In this matter the Applicant seeks an order declaring his continued
detention at Lindela
Transit Facility declared unlawful and that he
be afforded an opportunity to apply for asylum in terms of Section 21
of the Refugees
Act as amended. The application is brought in the
urgent court.
[2]
This application is opposed by the Minister and the Director in the
Department of
Home Affairs on the basis that the Applicant has failed
to comply with the provisions of the Refugees Act accordingly that
his
arrest, detention and pending deportation is justified in law.
[3]
It is common cause that the Applicant who is a national from
Bangladesh was arrested
in Vereeniging on the 26
th
March
2021 he could not produce any documents entitling him to remain in
the Republic of South Africa in terms of the Immigration
Act. He
appeared in court and was convicted in terms of of the Immigration
Act and sentenced to six (6) months imprisonment.
[4]
Whilst in detention he was interviewed by an Immigration officer and
was finally declared
an illegal foreigner in the Country and placed
at Lindela for purposes of deportation to his country.
[5]
Whilst at Lindela he consulted with his attorneys who addressed a
letter to the Department
of Home Affairs requesting that he be
released and be granted an opportunity to apply for Refugee Status.
This was declined.
[6]
In this application the Applicant maintains that he wants an
opportunity to present
himself to the Refugee officer and to apply
for Refugee status.
[7]
The Applicant says that he arrived in South Africa from Bangladesh
via Mozambique
and entered through the Lebombo Border not at a proper
Border Post. This he says was in January 2020 and when he visited the
Refugees
Office in Pretoria same were closed because of covid-19
Regulations and later when he visited the queues were long, he lost
interest
and left. He never again presented himself for status
determination.
URGENCY
[8]
The Respondent contended that the matter is not urgent it having been
removed from
the urgent court roll of the 22
nd
June 2021
and re-enrolled for hearing in the urgent court for the week of the
5
th
July 2021.
[9]
I accept that the application was removed from the urgent court roll
of the 22
nd
June 2021 not because of lack of urgency nor
failure to comply with the Practice Directive but it was to afford
the Respondent
an opportunity to file their Answering Affidavit. This
is evident by the fact that the Answering Affidavit is dated the 29
th
June 2021 and the Replying Affidavit is dated the 5
th
July
2021.
[10]
This application accordingly remained urgent as the prospects of the
Applicant being deported
are continuing.
DOES
THE FACT THAT THE APPLICANT FAILED TO PRESENT HIMSELF AT A REFUGEE
OFFICE ON HIS ARRIVAL DEPRIVE HIM OF THE RIGHT TO DO SO
NOW
[11]
It is common cause that when he was arrested he
did not inform the arresting officer that he wishes to apply
for
asylum. It is also correct that he gave conflicting versions to his
attorneys as to how and where he entered the country. When
he was
questioned by the Immigration Officer he said that he entered the
country on a visit and never said that he had fled Bangladesh
in fear
of persecution and never told the officer that he wishes to apply for
Asylum. The first time that he indicated his intent
to apply for
Asylum was on the 31
st
May 2021 when his attorney
addressed a letter to the Department demanding his release.
[12]
The answer to the question posed above was answered by the
Constitutional Court in the matter
of
Ruta vs Minister of Home
Affairs
2019 (2) SA 329
CC specifically at paragraph 44
where the
following was said:
“
Moreover in
entrusting the processing of Asylum application to Refugee Reception
Officers and the determination of refuges status
to Refugee Status
Determination Officers, the Refugees Act makes precise and detailed
provisions for the matters it covers in a
way that the Immigration
Act does not envisage at all. It is the Refugee Status Determination
Officer and that Officer alone, who
is empowered under our law to
determine whether an Asylum claimant is a refugee or is not. This
level of specificity indicates
that regardless of chronological
order, the provisions of the Refugees Act govern asylum
applications.”
[13]
The Applicant has not submitted himself for scrutiny before any of
the Refugee Officials to enable
them to determine if he does or does
not qualify. The Immigration Officer is not such an officer his
duties are different from
those set aside for the Refugee Status
Determination Officer. The fact that the Applicant has stayed a year
does not take away
his rights in terms of the Refugees Act read
together with International Provisions relating to refugees.
[14]
The court in Ruta (supra) dealt with the issue of delay in paragraph
19 as follows:
“
These were
that delay in itself does not disqualify an asylum application, that
the only grounds on which an application may be
refused are those set
out in Section 24(3) of the Refugees Act and that the Refugees Status
Determination Officer alone is entitled
to adjudge bogus or
underserving applications.”
[15]
To support the question of delay as a non-issue the Constitutional
Court made reference to the
Supreme Court of Appeal case in
Bula
and Others vs Minister of Home Affairs and Others
2012 (4) SA 560
(SCA)
where it was held that Regulation 2(2) of the Refugees Act
did not require an individual to indicate an intention to apply for
asylum immediately on being encountered, nor ought it to be
interpreted to mean that when a person did not do so there and then,
that he was precluded from doing so thereafter.”
[16]
I am accordingly persuaded that the Applicant has made out a good
case and I hereby grant judgment
in his favour and I make the draft
order handed up to me and marked “X” an order of court.
DATED
at JOHANNESBURG this the 21 day of JULY 2021.
M
A MAKUME
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION, JOHANNESBURG
DATE
OF HEARING
:
6 JUILY
2021
DATE
OF JUDGMENT :
21 JULY
2021
FOR
APPLICANT
:
ADV
LIPSHITZ
INSTRUCTED
BY
:
BUTHELEZI ATTORNEYS
FOR
RESPONDENT
:
ADV
MALEMA
INSTRUCTED
BY
:
THE
STATE ATTORNEY