2
KEMPTON PARK MAGISTRATE’S COURT Sixth Respondent
THE HEAD OF THE NATIONAL
PROSECUTING AUTHORITY Seventh Respondent
THE CONTROL PUBLIC PROSECUTOR:
KEMPTON PARK MAGISTRATE’S COURT Eighth Respondent
JUDGMENT
MAHOSI J
Introduction
[1] This is an urgent application for an order to, inter alia, interdict the
respondents from deporting the applicant until his status under the Refugees
Act1 has been lawfully and finally determined, declare his detention unlawful,
direct the respondents to release him from unlawful detention and review and
set aside any decision of a Magistrates’ Court to extend his warrant of
detention.
The parties
[2] The applicant is a Malawian national and an illegal “foreigner” for the purpose
of the Immigration Act. 2 He is currently detained at Kempton Park police
station.
[3] The first respondent is the Minister of Home Affairs, cited as an official
administrating the Refugees Act. The second respondent is the Director
General of the Department of Home Affairs, also cited in her official capacity.
The third respondent is the Chairperson, Refugee Status Determination
Officer, cited in his official capacity as an official responsible for determining
asylum applications. The fourth to eighth respondents are the Chief-Director of
Deportation, the Department of Justice and Correctional Services, the Chief
1 Act 130 of 1998, as amended.
2 Act 13 of 2002, as amended.
3
Magistrate, Kempton Park Magistrate’s Court , the Head of the National
Prosecuting Authority and the Control Public Prosecutor: Kempton Park
Magistrate’s Court. They are respectively cited in their official capacities. The
seventh respondent opposed the application.
Background facts
[4] The applicant entered South Africa from Malawi in April 2024 through the
Zimbabwe and South Africa Border post in Musina, Limpopo, where he
enquired about the process of applying for asylum and was advised to
approach the Refugee Centre, the Lawyers for Human Rights and the United
National Refugee Commissioner offices, so he narrates. He claims to have
been forced to flee his country because of socio-political persecution and is in
fear for his life.
[5] On 7 October 2024, the applicant was arrested and charged with
contravention of section 49(1)(a) of the Immigration Act. He appeared before
the Kempton Park Magistrate’s Court on 9 October 2024 for a bail application,
which was opposed. The matter was remanded to 23 October 2024 and
transferred to Court C of the same Magistrate’s Court for a guilty plea. On the
return date of 23 October 2024 and on the behest of his attorneys of record,
the matter was remanded to allow the applicant to launch this application. The
return date was set for 1 November 2024. The first hurdle that the applicant
faced was that of urgency.
Urgency
[6] The applicant's basis for urgency was that his application was inherently
urgent, he approached this Court at the earliest opportunity available to him,
and cannot obtain relief in the ordinary course because there is an imminent
threat of deportation to Malawi, where he will face the risk of persecutions and
threat to his life and freedom. He claims to be exposed to the risk of unlawful
detention and subjected to the ongoing violation of his rights to human dignity
and freedom of movement.
4
[7] The respondent disputes urgency because the applicant failed to raise his
asylum status at the time of his arrest or at his first appearance in the
Magistrate’s Court. Instead, he miraculously remembered that he intended to
seek asylum on 23 October 2024 during the last Court appearance, where the
matter was remanded for a guilty plea, and the impending sentencing was
imminent. Had the applicant followed the correct procedure provided for in the
Refugees Act, he could have avoided his arrest and deportation, argued the
respondent.
[8] To the extent that the applicant claimed that the immense urgency with which
he brought this application revolved around his continued detention and the
impending deportation, the respondent contended that such urgency was ill-
founded because there was no impending deportation as the matter in the
Magistrate’s Court was still pending and his detention was lawful. This
argument ignores the fact that the applicant is in detention and awaiting
imminent deportation upon being convicted for breaching the Immigration Act.
Therefore, his application is urgent.3
Submission
[9] The applicant submitted that his detention at the Kempton Park police station
was arbitrary and unlawful and subjected him to an ongoing violation of his
rights to apply for asylum, human dignity and freedom of movement . He
asserted that, albeit there was no conviction or date for deportation set, he
awaited to be transferred to the Lindelani Deportation camp from where he will
be deported to a country from which he fled. Under the circumstances, the
applicant argued that his deportation was imminent and he faced a real risk of
persecution and threats to his life, physical safety and freedom.
[10] The respondent conceded that the applicant had a right to be allowed to
appear before a Refugee Status Determination Officer ("RDSO") for the
processes under section 21(1B) of the Refugee Act, read with Regulation 8
(3), but denied that his arrest and detention were unlawful.
(3), but denied that his arrest and detention were unlawful.
3 See Ashebo v Minister of Home Affairs and others [2023] ZACC 16; 2024 (2) BCLR 217 (CC) ; 2023 (5) SA 382
(CC) at [13].
5
Legal Framework
Immigration Act
[11] Section 23 deals with asylum transit visas, and it reads:
“(1) The Director -General may, subject to the prescribed procedure under which
an asylum transit visa may be granted, issue an asylum transit visa to a
person who at a port of entry claims to be an asylum seeker, valid for a period
of five days only, to travel to the nearest Refugee Reception Office in order to
apply for asylum.
(2) Despite an ything contained in any other law, when the visa contemplated in
subsection (1) expires before the holder reports in person at a Refugee
Reception Office in order to apply for asylum in terms of section 21 of the
Refugees Act , the holder of that visa shall become an illegal foreigner and be
dealt with in accordance with this Act. ”
[12] Section 34 provides for the deportation and detention of illegal foreigners as
follows:
“(1) Without the need for a warrant, an immigration officer may arrest an illegal
foreigner or cause him or her to be arrested, and shall, irrespective of whether
such foreigner is arrested, deport him or her or cause him or her to be
deported and may, pending his or her deportation, detain him or her or cause
him or her to be detained in a manner and at a place determined by the
Director-General, provided that the foreigner concerned —
(a) shall be notified in writing of the decision to deport him or her and of
his or her right to appeal such decision in terms of this A ct;
(b) may at any time request any officer attending to him or her that his or
her detention for the purpose of deportation be confirmed by warrant of
a Court, which, if not issued within 48 hours of such request, shall
cause the immediate release of such foreigner;
(c) shall be informed upon arrest or immediately thereafter of the rights set
out in the preceding two paragraphs, when possible, practicable and
available in a language that he or she understands;
available in a language that he or she understands;
(d) may not be held in detention for longer than 30 calendar days without a
6
warrant of a Court which, on good and reasonable grounds, may
extend such detention for an adequate period not exceeding 90
calendar days, and
(e) shall be held in detention in compliance with minimum prescribed
standards protecting his or her dignity and relevant human rights. ”
[13] Section 49 reads:
“(1) (a) Anyone who enters or remains in, or departs from the Republic in
contravention of this Act, shall be guilty of an offence and liable on
conviction to a fine or to imprisonment not exceeding two years.
(b) Any illegal foreigner who fails to depart when so ordered by the
Director-General shall be guilty of an offence and liable on conviction
to a fine or to imprisonment not exceeding four years.’
Refugees Act
[14] Section 2 captures the fundamental principle of non-refoulement 4 and it states:
“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:
(a) 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
(b) his or her life, physical safety or freedom would be threatened on
account of external aggression, occupation, foreign domination or other
events seriously disturbing public order in any part or the whole of that
country.”
[15] Section 4 provides for exclusion from refugee status as follows:
4 See Abore v Minister of Home Affairs and Another [2021] ZACC 50; 2022 (4) BCLR 38 7 (CC); 2022 (2) SA 321
(CC) at [42].
7
“(1) An asylum seeker does not qualify for refugee status for the purposes of this
Act if a Refugee Status Determination Officer has reason to believe that he
or she:
(a) has committed a crime against peace, a crime involving torture, as
defined in the Prevention and Combating of Torture of Persons Act,
2013 (Act 13 of 2013), a war crime or a crime against humanity, as
defined in any international legal instrument dealing with any such
crimes; or
(b) has committed a crime outside the Republic, which is not of a political
nature and which, if committed in the Republic, would be punishable by
imprisonment without the option of a fine; or
(c) has been guilty of acts contrary to the objects and principles of the
United Nations or the African Union; or
(d) enjoys the protection of any other country in which he or she is a
recognised refugee, resident or citizen; or
(e) has committed a crime in the Republic, which is listed in Schedule 2 of
the Criminal Law Amendment Act, 1997 (Act 105 of 1997), or which is
punishable by imprisonment without the option of a fine; or
(f) has committed an offence in relation to the fraudulent possession,
acquisition or presentation of a South African identity card, passport,
travel document, temporary residence visa or permanent residence
permit; or
(g) is a fugitive from justice in another country where the rule of law is
upheld by a recognised judiciary; or
(h) having entered the Republic, other than through a port of entry
designated as such by the Minister in terms of section 9A of the
Immigration Act, fails to satisfy a Refugee Status Determination Officer
that there are compelling reasons for such entry; or
(i) has failed to report to the Refugee Reception Office within five days of
entry into the Republic as contemplated in section 21, in the absence
of compelling reasons, which may include hospitalisation,
8
institutionalisation or any other compelling reason: Provided that this
provision shall not apply to a person who, while being in the Republic
on a valid visa, other than a visa issued in terms of section 23 of the
Immigration Act, applies for asylum.
(2) For the purpo ses of subsection (1) (c), no exercise of a human right
recognised under international law may be regarded as being contrary to the
objects and principles of the United Nations or the African Union. ”
[16] Section 9 reads:
(1) Subject to this Act, no person shall enter or depart from the Republic at a
place other than a port of entry.
(2) Subject to this Act, a citizen shall be admitted, provided that he or she
identifies himself or herself as such and the immigration officer records his or
her entrance.
(3) No person shall enter or depart from the Republic —
(a) unless he or she is in possession of a valid passport and, in the case
of a minor, has his or her own valid passport;
(b) except at a port of entry, unless exempted in the prescribed manner
by the Minister, which exemption may be withdrawn by the Minister;
(c) unless the entry or departure is recorded by an immigration officer in
the prescribed manner; and
(d) unless his or her relevant admission documents have been examined
in the prescribed manner and he or she has been interviewed in the
prescribed manner by an immigration officer: Provided that, in the
case of a child, such examination and interview shall be conducted in
the presence of the parent or relative or, if the minor is not
accompanied by the parent or relative, any person of the same
gender as the minor.
(4) A foreigner who is not the holder of a permanent residence permit contemplated
in section 25 may only enter the Republic as contemplated in this section if —
(a) his or her passport is valid for a prescribed period; and
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(b) issued with a valid visa, as set out in this Act.
[17] Section 21 provides for the application for asylum. It reads:
“(1) (a) Upon reporting to the Refugee Reception Office within five days of
entry into the Republic, an asylum seeker must be assisted by an
officer designated to receive asylum seekers.
(b) An application for asylum must be made in person in accorda nce with
the prescribed procedures 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.
(1A) 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.
(1B) An applicant who may not be in possession of an asylum transit visa as
contemplated in section 23 of the Immigration Act, must be interviewed
by an immigration officer to ascertain whether valid reasons exist as to
why the applicant is not in possession of such visa.
(1C) The Director -General may, by notice in the Gazette, require any
category of asylum seekers to report to any particular or designated
Refugee Reception Office or other place specially designated as such
when lodging an application for asylum, if the Director General
considers it necessary for the proper administration of this Act.
(1D) For purposes of subsection (1C), a category of asylum seekers refers
to asylum seekers from a particular country of origin or geographic
area or of a particular gender, religion, nationality, political opinion or
social group.
(2) The Refugee Status Determination Officer must, upon receipt of the
application contemplated in subsection (1), deal with such application in terms
of section 24.
(2A) When making an application for asylum, every applicant must declare
all his or her spouses and dependants, whether in the Republic or
elsewhere, in the application for asylum.
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(3) When making an application for asylum, every applicant, including his or her
spouse and dependants, must have his or her biometrics taken in the
prescribed manner.
(4) Notwithstanding any law to the contrary, no proceedings may be instituted or
continued against any person in respect of his or her unlawful entry into or
presence within the Republic if :
(a) such person has applied for asylum in terms of subsection (1), until a
decision has been made on the application and, where applicable, such
application has been reviewed in terms of section 24A or where the
applicant exercised his or her right to appeal in terms of section 24B; or
(b) such person has been granted asylum. ”
[18] Section 22 is titled “Asylum seeker visa” and it reads:
“(1) An asylum seeker whose app lication in terms of section 21 (1) has not been
adjudicated, is entitled to be issued with an asylum seeker visa, in the prescribed
form, allowing the applicant to sojourn in the Republic temporarily, subject to
such conditions as may be imposed, which are not in conflict with the Constitution
or international law. ”
Regulations
[19] Regulation 7 reads:
“Any person who intends to apply for asylum must declare his or her intention, while
at a port of entry, before entering the Republic and provide his or her biometrics and
other relevant data as required, including―
(a) fingerprints;
(b) photograph;
(c) names and surname;
(d) date of birth and age;
(e) nationality or origin; and
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(f) habitual place of residence prior to travelling to the Republic.
and must be issued with an asylum transit visa contemplated in section 23 of the
Immigration Act.”
[20] Regulation 8 provides for the manner in which the application for asylum must
be made. It reads:
“(1) An application for asylum in terms of section 21 of the Act must ―
(a) be made in person by the applicant upon reporting to a Refugee
Reception Offic e or on a date allocated to such a person upon
reporting to the Refugee Reception Office;
(b) be made in a form substantially corresponding with Form 2 (DHA -
1590) contained in the Annexure;
( c) be submitted together with―
(i) a valid asylum transit visa issued at a port of entry in terms of
section 23 of the Immigration Act, or under permitted
circumstances, a valid visa issued in terms of the Immigration
Act;
(ii) proof of any form of a valid identification document: Provided that
if the applicant does n ot have proof of a valid identification
document, a declaration of identity must be made in writing
before an immigration officer; and
(iii) the biometrics of the applicant, including any dependant.
(2) Any person who submits a visa other than an asy lum transit visa issued in
terms of section 23 of the immigration act must provide proof of change of
circumstances in the period between the date of issue visa and the date of
application of asylum.
(3) Any person who, upon application for asylum, fails at a Refugee Reception
Office to produce a valid visa issued in terms of the Immigration Act must,
prior to being permitted to apply for asylum, show good cause for his or her
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illegal entry or stay in the Republic as contemplated in Article 31(1) of the
1951 United Nations Convention Relating to the Status of Refugees.
(4) A judicial officer must require any foreigner appearing before the Court, who
indicates his or her intention to apply for asylum, to show good cause as
contemplated in sub- regulation (3)."
Analysis
[21] The applicant’s case rest of his submission that the moment he expressed his
intention to apply for asylum he fell under the protection of Refugees Act and
International Conventions and as such his further detention and threats of
expulsion were unlawful. The law in this regard has become crystalized.
[22] In Ashebo v Minister of Home Affairs and others ,
5 the Constitutional Court
considered the issue of whether there was a legal basis to detain an illegal
foreigner whilst the process under section 21(1B) of the Refugee Act read with
Regulation 8(3) was still pending and said:
“
[47] It must be observed, at the outset, that the fact that an illegal foreigner is
still entitled to apply for asylum does not negate the fact that he or she
has contravened the Immigration Act by entering and remaining in the
country illegally. Where the detention is solely for the purpose of
deportation then the detention is authorised by section 34 of the
Immigration Act. However, where the detained person has b een charged
with a criminal offence in terms of section 49(1), the further detention may
also be authorised by the Criminal Procedure Act.
[48] It is important to note that the applicant was charged under section
49(1)(a) of the Immigration Act. Sections 34 and 49 both regulate illegal
entry and stay by non -South African citizens in the country. However,
each has a distinct purpose. Section 34 does not create or refer to any
criminal offence. But section 49 does. Section 34 is primarily intended for
deporting illegal foreigners and detaining them for that purpose, whereas
section 49 criminalises certain conduct. ”
section 49 criminalises certain conduct. ”
[23] The Court further stated that:
5 [2023] ZACC 16; 2024 (2) BCLR 217 (CC); 2023 (5) SA 382 (CC) .
13
“However, and whether the detention was in terms of section 34 or pursuant to a
criminal charge in terms of section 49(1)(a), the same question arises – whether
the applicant’s expression of an intention to apply for asylum entitled him to be
released from such detention. The answer must be no. ”6
[24] Regarding the International Convention, the Court stated that Article 31 of the
Convention does not give illegal foreigners unrestricted indemnity from
penalties but requires them to present themselves to the authorities and to
show good cause for their illegal entry or presence without delay. In light of the
above, the respondent correctly contended that the relief sought by the
applicant, a declaration of his detention unlawful and directing the respondents
to release him from unlawful detention, is gravely out of this Court’s purview.
[25] The applicant was arrested and charged with contravention of section 49(1)(a)
of the Immigration Act. Thus, his arrest and detention do not violate the non-
refoulement protection in section 2 of the Refugees Act, and his expression of
an intention to apply for asylum does not entitle him to be released from
detention. First, he has to show good cause for his illegal entry and stay in this
country, and the respondent must assist him by facilitating an interview with an
immigration officer to determine whether he has a valid reason for not being in
possession of an asylum transit visa. Should he succeed, and an application is
lodged, he may be issued with an asylum seeker visa that would enable him to
sojourn in the Republic temporarily, subject to such conditions as may be
imposed, which are not in conflict with the Constitution or international law.
[26] The respondent proposed an alternative remedy, which was identified in the
Ashebo decision. It reads:
“[59] …The applicant is entitled to an opportunity to be interviewed by an
immigration officer to ascertain whether there are valid reasons why he is
immigration officer to ascertain whether there are valid reasons why he is
not in possession of an asylum transit visa. And he must, prior to being
permitted to apply for asylum, show good cause for his illegal entry and
stay in the country, as contemplated in the above provisions. Once he
passes that hurdle and an application for asylum is lodged, the
entitlements and protections provided in sections 22 and 21(4) of the
6 Id at [50].
14
Refugees Act – being issued with an asylum seeker permit that will allow
him to remain in the country, without delay, and being shielded from
proceedings in respect of his unlawful entry into and presence in the
country until his application is finally determi ned – will be available to him.
[60] Once the applicant has an asylum seeker visa issued in terms of section
22, he would be entitled to remain in this country temporarily. His
continued detention, to the extent that it rests solely on section 34 of the
Immigration Act, would unquestionably b ecome unlawful, because he
would no longer be an “illegal foreigner” for purposes of the Immigration
Act. Merely expressing an intention to seek asylum does not entitle the
applicant to release from detention. On the other hand, however, the
respondents, p articularly the first, second, fourth, and fifth are obliged –
regardless of the basis of his detention – to assist him to give effect to his
intention to apply for asylum. At a practical level, this simply means that
these respondents must facilitate arra ngements either to transport the
applicant to a RRO for his interview or to bring the relevant immigration
and refugee officials to the correctional centre in which he is detained to
conduct the necessary processes, whichever means is convenient. They
must further refrain from deporting him until his asylum application is
finalised.”
[27] The above remedy was recently applied in the judgment in D S L and others v
Minister of Home Affairs and others ,7 where the Court gave the following
order:
“1. The application is dismissed.
2. The first, second, third and fourth respondents are directed, to the extent
necessary, to take all reasonable steps, within 60 days from the date of this
order, to afford the applicants an opportunity in terms of section 21(1B) of the
Refugees Act 130 of 1998, read with regulation (8)(3) thereto, to show good
cause, and to allow the whole process of any review or appeal, in the event
cause, and to allow the whole process of any review or appeal, in the event
where good cause is not established, to unfold until it is finally determined.
3.The first, s econd, third and fourth respondents are directed to approach the
Magistrates Court for the extension of time should the review or appeal
7 [2024] ZAGPJHC 123 at [95].
15
process not be finalised within the 60 -day period. This request should be
accompanied by a report directed to the Magis trates Court, setting out what
steps have been taken and why the processes have not been finalised within
the 60-day period.”
[28] In the circumstances, there is no reason why this Court should not adopt the
remedies above. Accordingly, the following order is granted:
Order
1. The rules relating to forms, services and time periods as prescribed by
the Uniform rules of this Court are dispensed with the matter heard as
an urgent application in terms of rule 6(12).
2. The application to declare the applicant’s detention unlawful, direct the
respondents to release him from unlawful detention and review any
decision of a Magistrates’ Court to extend his warrant of detention is
dismissed.
3. It is declared that in terms of section 2 of the Refugees Act 130 of 1998
(Act), the applicant may not be deported until he has had an opportunity
of showing good cause as contemplated in section 21(1B) of the
Refugees Amendment Act 11 of 2017, read with regulation 8(3) thereto,
and, if such good cause has been shown, until his application for
asylum has been finally determined in terms of the Act.
4. The first, second, fourth, fifth and seventh respondents are directed, to
the extent necessary, to take all reasonable steps within 60 days from
the date of this order to give effect to paragraph 3 above.
5 The first, second, fourth, fifth and seventh respondents are directed to
approach the Magistrates Court for the extension of time should the
review or appeal process not be finalised within 60 days. This request
should be accompanied by a report directed to the Magistrates Court,
setting out what steps have been taken and why the processes have
yet to be finalised within the 60-day period.
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______ ___
D. Mahosi J
Acting Judge of the High Court
Heard: 01 November 2024
Delivered: This judgment was handed down electronically by circulation to the
parties' representatives through email. The date for hand-down is deemed to be 13
November 2024.
Appearances
For the applicant: Advocate A. Mafanele
Instructed by: Tandoh Desmond Attorneys
For the seventh respondent: Advocate L. Msomi
Instructed by: State Attorney, Johannesburg