REPUBLIC OF SOUTH AFRICA
,
IN THE HIGH COURT OF SOUTH AFRICA ,
GAUTENG LOCAL DMS ION JOHANNESBURG
CASE N0:2025--082129
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In the ma tter between;
UMERHAZAN
Ami
MINISTER OF HOME AFFAIRS
DIRECTOR GENERAL, DEPARTMENT OF HOME AFFA IRS
MINISTER OF CORREC TIONAL SERVICES
NATIONAL COMMISS IONER OF CORRECTIONAL SERVICES
HEAD OF JOHANNESBURG CORRECTIONAL SERVIC E S
CENTRE
Appficant
1d Respondent
2"' Responden t
3'" Respondent
4"' Respondent
S" Respondent

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NATIONAL DIRECTOR OF PUBLIC PROSECUTING AUTHO RITY
OF SOUTH AFRICA
6"' Respondent
JUDGMENT
Raubonholmor AJ:
(1] In this ma tter I make the following order.
1. The appllcalion is dismi$$ed with costs on scale A.
[2) The reasons for the order follow below.
Introduction
(3] The applicant approached the court on an urgent basis for the following relier.
5.2 cfl/eCling the Respondents w take aa nece=r1 stops wilhin 5 days or granting or
/his Older to assist u,e App5cant to wbm it his 8J>P(IC8tion for asylum in u,e Republic
of South Afric3 in tormsof section 21 of the Refugees Ac! 1300/ 1!198.
5.3 interdicting and restraining the 6th Re~ndont from conffnuing with tfle aim/net
legal prooeedings it1slifutlld B!}ainst /he Applicant rslaUng to Ills unlawful entry end
stay in the Repub5c in contravention of the Immigration Act of the Republic of South
Afric:J under "'1SC number 315715/2024, pending U,e (,nal detemiinaffon of tho
Applic.,nt status In /arms of the Refugee Act 130 of 1998.

3
5.4 inlerdicfing and resuaining the 1st ond 2nd Respondent from dcpotling the
npplicnnt until such lime that the Applicant status and stay In the Republic has been
fully ond fln:Jl/y determined in tenns of Refugees Act 130 of 1998 and un/il suc/I /im~
Oral o,e Applicant has fully exhausted his review or npponl p(O(;Oss in tonns or choptcr
4 of the Refugoos Act ond /ho promotion of Adminislrative Justice Act 3 of 2000. a
duty registered trade ur1ion, represents 32 of its member.; w1lO were employed by /he
Orird respondent
(4) The =pendents gave notice ol opposltion but only 1he nrst second and sbcth
respondents filed answering affidavits.
[5) The applicant entered the Republic of Sou1I, Africa on 2 November 2024, not lhrough
an official PO<t or entry. from Ethiopia lrom where he llcd duo 10 fear of perseeullon and
threats to his li!e due to his political convidlons and alfiliations.
[6) Upon arrival in South Africa he obl2Ined s11elter from people sympathetic lo the cause
ol Ethiopian refugeea. Shortly aller hls anival he presented himself at the Pretorta
Refugee Reception Centre wilh the purpose of subrrjttin9 his application to be granted
asylum status. He, however, had to waa in a long queue in lhe scon:hing sun and was
not assisted by the Ume the offices or the e11ntre dosed. Alter this single attempt he did
not again present himse!I at the centre.
m He decided to follow a different strategy by attempting to obtain financial assl,tance from
fellow countrymen so that he could employ the services ol an attorney lo assist him with
an application for refugee s1atus.
[8) Before he could secure funding he was anested on 19 December 2024, about a month
a.,d a hall after his arrival. He was charged aimlnally for contravening the Immigration

•
Act' by not entering Sooth Africa at a port or entry.
[9) The applicant contends that at his appearance In the Randt>u,g Magislr.ltes Court on 14
January 2025 he Informed the presiding magistrate of his intention to apply for asylum
and was reffflad by the magistrate to the Department of Home Affairs.
[10) The appncanrs attorneys directed correspondence to the Department of Home AlfaiB
ln<ficating that their client is desirous of applying lo, re!ugff status. The Department
contends that the correspondence was not forwarded to an e-mail address of a
Department dealing with refugee matte<s. It however. conceded in open court that they
are aware of their ob5galions in terms of the relevant legislation and are willing to assist
the applicant to lodge his applieaHon and wlll ma ke the necessary resources available
to hlm as required In terms of the Refugees Ad- and the Refugees Amelldment Act' to
apply for refugee status.
[ 11 J The applicant is currently in delenlion at the Johannesburg Correctional Centre awaiting
hls criminal trial for the contravention of the Immigration Act
Contentions by the apollc;ont
[12) The app6eanl contends that he should not be held in deten1ion as it infringes his right
to freedom of movement and $h0Uld he be released from Incarceration as an awaiting
trial Inmate. He furthl!r con!ends Illa! he should not be prosecuted for his iOegal entry
into and stay in the Republic until final determination of his refugee slab.ls in the
Republic.
[13) There is an obC,gation on the first respondent to assist him with his application for
refugee status as soon as he makes his intention to apply for refugee status known. so
the applicant contends. The applicant av= that as he informed the police officers when
1 N;t..1lot2002
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he was arrested of his intention to apply IOI' refugee status he was frOl'n then on a person
seeking retugeo stal1JS and consequently he could no longer be pmseculed for his
unlaw!ul entry Into Ille country until his application for refugee status has been finaflsed.
Hence his appfication against Ille National Director of Public ProseOJtions.
(14J His application against Ille Department of H«ne Affairs is to lnterlf,:t Ille department
from deporling him to Elhlopia and to orde< lhe department ID assist him with his refugee
sbl1JS appllcalion.
~ubm issions by Ille first second and sixth respondents
( 15) There is cwrentty no 0<der frOl'n Ille Ocparvnent of Home Affairs fo, Ille deportation
against Ille applicant in terms of section 49(1)(b) of Ille Immigration Aa. The
Department of Home Mairs confirmed in open court Iha! the deportation of the applicant
Is cum,ntly not under consideration as Ille Department is ;,wai~ng the outcome of his
criminal trlal.
(161 As Ille appficanrs app6cation for refugee status has not yet finally been rejected hO Is
consequently not at risk of being deported and is in any case protected by Ille principle
of norwefoulement against deportation.
Oiscv,sion
(17] The Refugees Act and Amended Refugees Act provides for two distinct processes for
applying for asylum nam<>ly on entry through an aulhorised port of entry and claiming to
be an asylum seeker. Such person wiD be granted an asyicm transit visa whim wiU be
valid for 5 days ID allow Ille asylum seeker to travel to Ille nearest Rcfugco Reception
Office ID apply for asylum.•
(18) The second process is where a person is excluded from refugee sta!lJS due to entry
other than th~h a designated port of entry or where Ille pe,son failed to report to a
.. $Qd "3 ~ Act

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Refugee Re<:epfion Office wttllin S days after entering into the Repubfic' due to
compelling reaoons.•
[19] The appOcant is entiUed to lodge an application to be granted refugee •tatus irr~ctive
of being il~ly in the Republic.' He has not been deprived ol such an opportunity.
[201 The applicant is entilled to an opportunity to be interviewed by an immigration officer
and to provide valid reasons fa, not being In PD"""•ion ol an asylum transit visum. •
eerore being permitted to submit an application for asylll'Tl he must be afforded an
opportunity to show good cause for his illegal entry and slay in the Republic.•
[21] Only after he has ele"'1>CI the above obstacles 'Ml! he be entitled lo be issued with an
asylum seeker permit He will then be enli!led lo remain in the Republic temporanly
pen<f,ng the finafisation of his rerugee status."
[22] The mere expression of an intention to seek asylum does not entitle the applicant to be
released from de!ention.11 Neither does the failure of the immigration official to facilitate
the applicant's asylum application render the detention unlawful. 12
[23] The applicant entered the Republic other than through a designated port of entry. He
did not present himself at a Refugee Reception Ofli0e within S days after entering the
Republic. ANer allending at a Refugee Reception Office and having had to wait for a
day in the sun he decided not to return and by Ille time he was arrested he had not
made any effort to present him to an immigration officer except lo try and obtJin funding
to instruct a lawyer. He only evinced his inle1ltion to apply for asylum alter being arrested
and his attorney only after his appearance In court attempted to contact the Department
'~21 1~Ad
11 $cd" "(1) Rdugca, Act
1 lb..~vMIM1ordlbnoA.•_..po,aiv.r;cs,; 2010(2)SA~lCC i 201Sl(J) tlQJ<JlSJ(CC)a:p.ns 1.C 16.Abore
v ~ cl Mic,T.o ~Its ('m1J ZACC M; 202' (4) DCUl S!7 (CC), ZlZZ (2) SA 321 (CC) at pat». g_
I Sea 21(19) - Aa

I Sea 21(19) - Aa
'II R.e;-Jbllon 8(3) ti. N R~ • in 1eOnS oftt. P..f\jgNS M.
,o ~~ v M.niS3trofHcmtA.-..I~ .-2 O!M,.(CCT2!i0/221 t20231 ZACC 11!1; ~ (5)SI\ ~ (CC ); ~4 P') BCLA
217 (CC)lliJ.r,o~3)
11 As.."lebo (n10 CIC'VC)
u Al..-..to fntO~)

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of Home Affail"3,
(24) Even in his founding affidavit the appf,cant Is scant with the infonnalion pertaining his
enby into the Republic and his attendance at a Refugee Reception Centre.
(251 The applicant Is not entitled to be released from cle!ention or to have his aiminal trial
halted due to his mere evincing or an intention lo apply for asylum. His application
against the third to $ix1h respondenlS must consequently la~.
(261 The first and second respondents never refused to assist the applicant and indicaled
that to be am,,nable to lacifilate the interviews required for the applleanls" asylum
application. His application against the Int and second respondents must likewise fail.
Conciusion
(271 Based on the above I concluded that the appficanl has not shown the application to be
urgent and has not shown that he is entilled to the refier sought in the Notice or Motion.
(281 I therefore granted the order appearing in Par 1.
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
JOHANNESBURG
EJ-c.,/ly svflmitted
DclivCfed: This Judgement was p,epared ond au111ored by the Acting Judge wllose name Is '8ftectod
ond is handed down clcctrooieall'f by clrcui:ltlon to the Portles / their legal represenl!ltlves by email
and by uploading It lo the eledrooic file of this matte, on Cascl.lncs. The dale of !he j~cnt is
deemed to be 29 JULY 2025

COUNSEL FOR THE PLAJNTIFFS:
INSTRUCTED BY:
COUNSEL FOR THE RESPONDENT :
INSTRUCTED BY :
DATE OF ARGUMENT: 12 June 2025
REASONS REQUESTED : 23 June 2025
DATE OF JUDGMENT : 29 July 2025
Adv A Maranele
AJ Masiye Attorneys
Adv JMT Tlokana
Slate AllDmey South Africa
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