CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 250/22
In the matter between:
BENEYAM DESELEGN ASHEBO Applicant
and
MINISTER OF HOME AFFAIRS First Respondent
DIRECTOR GENERAL, DEPARTMENT OF
HOME AFFAIRS Second Respondent
NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent
MINISTER OF JUSTICE AND CORRECTIONAL
SERVICES Fourth Respondent
HEAD OF THE KGOSI MAMPURU II CENTRAL
CORRECTIONAL CENTRE, PRETORIA Fifth Respondent
Neutral citation: Ashebo v Minister of Home Affairs and Others [2023] ZACC 16
Coram: Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ,
Mathopo J, Potterill AJ, Rogers J and Theron J
Judgment: Maya DCJ (unanimous)
Heard on: 16 February 2023
Decided on: 12 June 2023
MAYA DCJ
Summary: Section 12(1 ) of the Cons titution — principle of
non-refoulement — section 49(1) and 34 of the Immigration Act
13 of 2002 — illegal foreigner’s intention to apply for asylum —
lawfulness of detention
ORDER
On appeal from the High Court of South Africa, Gauteng Division, Pretoria:
1. Leave for direct appeal is granted and the appeal succeeds.
2. The order of the High Court is set aside and is replaced with the following:
“(a) 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 c ause 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 asylu m has been determined in
terms of the Act.
(b) The first and second respondents shall pay the costs, including the
costs of two counsel where employed.”
3. The first, second, fourth and fifth respondents are directed, to the extent
necessary, to take all reas onable steps, within 14 days from the date of
this order, to give effect to paragraph 2(a), failing which the applicant
must be released from detention forthwith unless he may lawfully be
detained under the Criminal Procedure Act 51 of 1977.
4. The first and second respondents shall pay the costs, including the costs
in this Court of two counsel where employed.
MAYA DCJ
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JUDGMENT
MAYA DCJ (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ,
Rogers J and Theron J concurring):
Introduction
[1] This is an urgent application for leave to appeal directly to this Court.1
The applicant, Mr Beneyam Deselegn Ashebo, seeks to challe nge the order of the
High Court of South Africa, Gauteng Division, Pretoria (High Court). That Court
struck his urgent application from the roll for lack of urge ncy and mulcted him with
costs.
[2] In the High Court the applicant sought an order, inter alia, interdicting the
respondents from deporting him until his status under the Refugees Act, 2 alternatively
under the Refugees Amendment Act,3 had been lawfully and finally determined;
declaring his continued detention unlawful and that he was entitled to rema in in
South Africa for a period of 14 days in order to allow him to approach a
Refugee Reception Office (RRO); and for his immediate release from detention. He
also prayed for an order directing the respondents to accept his asylum application and
to issu e him with a temporary asylum seeker permit pending finalisation of his
1 The applicant mischaracterised the application as one for direct access in his notice of motion. But nothing turns
on this technical error as the threshold for the grant of applications for direct leave to appeal and direct access
requires the exercise of discretion by this Court in consideration of the same factors. These include the importance
of the constitutional issue and the desirability of obtaining an urgent ruling of this Court on that issue, whether
any dispute may arise in the matter, the possibility of obtaining relief in another court, the time and costs that may
be saved by coming directly to this Court and the overarching interests of justice. See Zondi v MEC for Traditional
and Local Government Affairs [2004] ZACC 19; 2005 (3) SA 589 (CC); 2005 (4) BCLR 347 (CC) at para 12; and
e.TV (Pty) Ltd v Minister of Co mmunications and Digital Technologies [2022] ZACC 22; 2023 (3) SA 1 (CC)
2022 (9) BCLR 1055 (CC) at para 26.
2 130 of 1998.
3 11 of 2017.
MAYA DCJ
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application, including any review or appeal in terms of Chapter 3 of the Refugees Act
and the Promotion of Administrative Justice Act 4 (PAJA), if he applied for such a
review or appeal.
Parties
[3] The applicant is an Ethiopian national and an “illegal foreigner” for purposes of
the Immigration Act. 5 He is currently detained at Kgosi Mampuru II Correctional
Services Centre (Kgosi Mampuru) pending his tr ial and deportation. The
first respondent is the Minister of Home Affairs, cited in his official capacity as the
official responsible for the administration of the Refugees Act. The second respondent
is the Director-General, Department of Home Affairs, also cited in his official capacity.
The third to fifth respondents are the National Director of Public Prosecutions, the
Minister of Justice and Correctional Services, and the Head of Kgosi Mampuru. They
are respectively cited in their official capacities. Only the first and second respondents
participated in these proceedings in the High Court. They did not oppose this
application and only filed written submissions in response to the directions of the
Chief Justice to do so. Any reference to “the respondents” in this judgment is reference
to them.
Background facts
[4] The applicant entered South Africa illegally from Zimbabwe on 11 June 2021 as
he recounts. He claims to have been persecuted by the ruling party in his homeland for
his political and religious beliefs. His family was tor ched and killed, but he managed
to escape and fled to South Africa to save his life. He did not have a passport with him
and did not use any of the official ports of entry as he feared being arrested and deported
to Ethiopia.
4 3 of 2000.
5 13 of 2002.
MAYA DCJ
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[5] On 7 July 2022, he was arrested in Pretoria for unlawfully entering and residing
in South Africa, in contravention of the Immigration Act, and was charged in terms of
section 49 thereof. He alleges that upon his arrest, he tried to explain to the arresting
officers that he was an asylum seeker and had been trying to apply for asylum since his
arrival but the RRO had been closed due to the COVID -19 outbreak. He also told the
officials who arrested him that he was fleeing his country for fear of persecution.
Shortly after his arrival in the country he had launched an application to compel the
respondents to accept his application for an asylum seeker permit but abandoned it
because of a lack of funds.6 However, his explanation fell on deaf ears.
[6] He informed the detention officer of the reasons he had entered the country
illegally. But the officer countered that he was in the country for economic reasons and
would not accept his explanation. The applicant alleges that he is not fluent in English.
During his conversation with the detention officer, which was conducted in English, no
interpreter was employed. Thus, he could not express himself properly and could not
understand fully what was being said. He contends that he was made to sign a document
although he did not understand its contents.
Litigation history
[7] On 9 September 2022 the matter was on the opposed roll in the High Court. It
was fully argued. The respondents’ counsel merely raised the defence that the matter
was not urgent and argued that the applicant could not claim a right to apply for asylum
because he had been in the country unlawfully for more than a year, and had also failed
to take the court into his confidence about the grounds on which he intended seeking
asylum.
[8] The following is gleaned from the record of the hearing in the High Court. As
soon as the proceedings started, the presiding Judge informed the parties that she was
of the view that the alleged urgency was self-created. The Judge indicated that she had
6 The relevant notice of motion is dated 18 June 2021 and was issued by CR Masilela Attorneys.
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read the papers and found the applicant’s version – that for the year preceding his arrest
he had been trying to apply for an asylum permit – to be unbelievable, contradictory
and inconsistent. In her view, it was only when the applicant was arrested after being
in the country illegally for more than a year that he created the urgency for purposes of
approaching the Court.
[9] Regarding the earlier application supposedly fi led by the applicant on
18 June 2021, which bore a court stamp, the Judge found it improbable that it was filed
because the applicant’s affidavit stipulated that upon his arrival in South Africa he did
not know where to go until he was advised by his countrymen. The Judge questioned
why the applicant’s affidavit indicated that he started visiting the RRO in May 2021,
when on his version he only arrived in the country in June 2021. When counsel for the
applicant indicated that this was an error, as the applicant had left Ethiopia in May 2021
and arrived in South Africa in June 2021, the Judge pointed out that the error was not
corrected in the replying affidavit.
[10] The Judge also dismissed a submission by counsel for the applicant that refusing
to hear the matter urgently would deny him an opportunity to apply for an asylum
permit, as he would be barred from applying once he was convicte d for being in the
country illegally in breach of the Refugees Act in the trial which would be conducted
in a few days. She also paid no heed to counsel’s submission that it was for the
Refugee Status Determination Officer (RSDO) to determine the truthfulness of the
applicant’s version and reasons for his delay in due course. In a terse judgment, the
High Court held that the urgency was self -created by the applicant as he had delayed
evincing his intention to seek asylum. On that basis, the Court struck the matter from
the roll with costs for lack of urgency.
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Preliminary matters in this Court
Jurisdiction and standing
[11] The applicant submits that his application engages this Court’s jurisdiction. This
is so, he contends, because it raises a constitutional issue in terms of section 167(7) of
the Constitution as it concerns his right to freedom and security of the person contained
in section 12(1)7 of the Constitution. He also argues that, in addition to standing in his
own interest, he has standing in terms of section 38(d)8 of the Constitution because there
are thousands of similarly positioned asylum seekers who will benefit from certainty on
the question of release from detention when an asylum seeker has evinced an intention
to apply for asylum. The applicant’s section 12 right is undoubtedly affected and this
factor alone vests this Court with the jurisdiction to entertain the application which the
respondents rightly concede.
Urgency
[12] The applicant submits that his arrest and detention triggered the urgency of this
matter. He submits that, given his unemployment, he acted as fast as reasonably
possible to approach the courts. He contends that he cannot obtain relief in the ordinary
course because he cannot apply for asylum while he remains in detention. His
detention, he contends, is unlawful and should not be allowed to endure any longer.
Although no conviction or date for deportation has been secured, there is an imminent
7 Section 12(1) in relevant part reads:
“Everyone has the right to freedom and security of the person, which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or private sources.”
See also Abore v Minister of Home Affairs [2021] ZACC 50; 2022 (4) BCLR 387 (CC); 2022 (2) SA 321 (CC) at
para 9.
8 Section 38(d) reads:
“Anyone listed in this section has the right to approach a competent court, alleging that a right
in the Bill of Rights has been infringed or threatened, and the court may grant appropriate relief,
including a declaration of rights. The persons who may approach a court are —
(d) anyone acting in the public interest.”
MAYA DCJ
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threat of deportation and he will suffer great prejudice if the matter is not heard urgently,
whereas the respondents will not be prejudiced if the matter is heard urgently.
[13] The respondents dispute that the matter is urgent and insist on having it heard in
the High Court in due course. But their approach completely overlooks the fact that the
applicant was in detention, presumably since his arrest on 7 July 2022, awaiting
imminent deportation once he is convicted for breaching the Immigration Act when the
High Court struck his matter off the roll in September 2022. He remains in detention
to date and still faces the same threats. That clearly renders the application urgent.
Leave for direct appeal
[14] For his prayer for “direct access”, the applicant relies on Mazibuko.9 In that
decision, which endorsed what was said in Bruce,10 this Court held that for a matter to
warrant bypassing other courts, the interests of justice requirement will ordinarily be
met only where there are exceptional circumstances such as sufficient urgency or public
importance, and proof of prejudice to the public interest or the ends of justice and good
government.11
[15] The applicant submits that there are exceptional circumstances justifying this
application, namely that he remains in detention awaiting deportation to a country where
he is likely to face the death sentence or be killed; the application has prospects of
success on the merits as he was not afforded an opportunity to apply for asylum status;
his detention is unlawful because he still intends to apply for asylum and he needs to be
recognised as an asylum seeker; and he has exhausted all other avenues available to
him,12 and has nowhere else to go but to this Court in view of the order st riking his
matter from the roll.
9 Mazibuko v Sisulu [2013] ZACC 28; 2013 (6) SA 249 (CC); 2013 (11) BCLR 1297 (CC) at paras 34-5.
10 Bruce v Fleecytex Johannesburg [1998] ZACC 3; 1998 (2) SA 1143; 1998 (4) BCLR (CC) 415 at para 4.
11 Mazibuko above n 8.
12 Besserglik v Minister of Trade, Industry and Tourism (Minister of Justice Intervening) [1996] ZACC 8; 1996
(4) SA 331 (CC) 1996 (6) BCLR 745 (CC) at para 6.
MAYA DCJ
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[16] The resp ondents argue that this matter does no t warrant the attention of
this Court. They submit that once the matter was struck from the roll for lack of
urgency, the applicant should have enrolled it on the ordinary motion court roll, which
he can still do, or should have approached the Supreme Court of Appeal, as the urgency
was created by his own lengthy delay in seeking asylum after entering the country
illegally. They submit that the applicant is forum shopping, flouting the court hierarchy
and depriving th is Court of the views of the High Court and the Supreme Court of
Appeal before it makes its decision.
[17] In addition to the other factors flagged as exceptional by the applicant, there is
the important question raised by this Court in respect of which it must provide guidance
and clarity – whether the applicant is entitled to be released from immigration detention
upon expressing an intention to make an application for asylum in terms of the
Refugees Act. I grant leave for direct appeal in the circumstances.
The merits
The applicant’s contentions
[18] The applicant submits that the legislation that ought to regulate his circumstances
as an asylum seeker is the Refugees Act and not the Immigration Act. He contends that
this is because section 2313 of the Immigration Act itself directs an asylum seeker to the
provisions of the Refugees Act, as the Immigration Act does not apply to that class of
persons. He relies on section 2 of the Refugees Act and further references
section 21(1)(a) of the Refugees Amendment Act14 and regulation 8(1)(a) and (3) of the
new Refugees Regulations,15 which, inter alia, envisage two requirements to be met for
an application for asylum, namely that (a) an asylum seeker must report to the RRO
within five days for an interview by an immigration officer in which, if the asylum
13 Section 23 states that “[t] he Department may issue an asylum permit to an asylum seeker subject to the
Refugees Act, 1998 (Act No. 130 of 1998), on any prescribed terms and conditions”.
14 Section 21 is quoted at [36].
15 Refugees Regulations 2018, GNR 1707 GG 42932, 27 December 2019.
MAYA DCJ
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seeker fails to produce a valid asylum transit or other visa, the asylum seeker must show
good cause for his or her illegal entry o r stay in South Africa; and (b) the application
must be made in person.
[19] With regard to the first requirement, the applicant submits that he entered the
country with no knowledge of the laws and regulations of the country and was therefore
unaware of the five-day requirement. He further argues that he could not meet this
requirement because the RRO was closed due to the COVID -19 pandemic. Regarding
the second requirement, he contends that he cannot make an application in person as he
is currently unlawfully detained.
[20] The applicant contends that these requirements are irrational, unconstitutional
and invalid in his circumstances because they have no conceivable legitimate purpose
and are not a reasonable means to attain the intended end. He was arrested and charged
under the Immigration Act, which does not apply in his case as he has evinced his
intention to apply for asylum. He contends that he should be released immediately so
that he can apply for asylum status, as his detention is not justified under the
Immigration Act, the Refugees Act or the Constitution.
This Court’s directions
[21] The respondents filed a notice of withdrawal of opposition and a notice to abide.
Thereafter, this Court, on 28 October 2022, issued directions calling upon the parties to
file written submissions on the question whether the applicant is entitled to be released
from detention after expressing an intention to make an application for asylum in terms
of the Refugees Act, and with reference to Shanko.16
[22] It should be noted tha t the High Court decision in Shanko, which I favour for
reasons set out later in this judgment, has recently been overturned by the Full Court of
16 Shanko v Minister of Home Affairs; Shambu v Minister of Home Affairs; Bogala v Minister of Home Affairs
[2021] ZAGPJHC 857.
MAYA DCJ
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its Division. In that case the High Court dealt with the authority of the state to detain
three illegal foreigners for breaching the Immigration Act by entering and staying in the
country illegally. The men were held in detention unde r section 34 of the
Immigration Act despite their expression of a wish to apply for asylum. The High Court
ordered that all reasonable steps be taken to give effect to the intention of the applicants
to apply for asylum, within 14 days from the date of the order, but refused to order their
release during that process. Challenging the lawfulness of some of the new Refugee
Regulations17 and in direct contrast to the decision of the High Court, the Full Court18
held that an illegal foreigner is entitled to be released from detention under section 34
of the Immigration Act once he expresses a wish to apply for asylum.
The applicant’s submissions
[23] In his submissions filed in response to this Court’s directions, the applicant
rehashes the importance of his constitutional rights envisaged in section 12(1)(a) to (c)
of the Constitution and highlights section 7(2) of the Constitution which r equires the
state to protect, respect and promote the fundamental rights in Chapter 2 of the
Constitution. He submits that section 12 guarantees him both substantive and
procedural protection, which respectively require that the state must have sound reasons
for depriving him of his freedom and the deprivation must accord with fair procedures.
[24] The applicant states that he has shown that he is a genuine candidate for refugee
status in accordance with article 31(1) of the 1951 United Nations Convention relating
to the Status of Refugees (Convention).19 He argues further that his continued detention
17 In particular, regulations 8(3) and (4) and 4(1)(h) and (i), which are discussed later in the judgment.
18 In a judgment of the Full Court of the High Court of South Africa, Gauteng Division, Johannesburg de livered
on 14 March 2023 in Shanko Abraham v The Minister of Home Affairs and Another; Shambu Jamal v The Minister
of Home Affairs; Bogala Iyoba v Minister of Home Affairs Case numbers A5053/2021; A5054/2021; A5055/2021
2023 ZAGPJHC 253.
19 Convention relat ing to the Status of Refugees , 28 July 1951. South Africa acceded to the Convention on
12 January 1996. Article 31(1) provides:
“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 authorisation, provided they
MAYA DCJ
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is unlawful and constitutes a penalty in terms of the article and that the threat of
deportation violates the principle of non-refoulement20 as his refugee status has not been
finally rejected after a proper procedure in the manner envisaged in this Court’s
judgments in Abore21 and Ruta.22 He concludes that this Court is required by
regulation 8(4) to come to his rescue and order his release from detention so that he can
apply for asylum.
The respondents’ submissions
[25] The respondents repeat their submissions in the High Court and insist that this
matter is not urgent. They press for the re -enrolment of the matter on the ordinary
High Court roll and argue that it is incorrect and disingenuous for the applicant to
contend that there would be delay in hearing it under ordinary court procedures, as there
have been many immigration and asylum cases which have been considered timeously
by the High Court, among them Shanko.
[26] The respondents bemoan the applicant’s long delay in applying for asylum and
contend that there is a need for a yardstick regarding timelines for refugee status
applications so that they are brought within a reasonable period after foreign nationals
enter the country. In their submission, the applicant can only be released from detention
after he has applied for an asylum seeker permit in terms of section 22 of the
Refugees Act and it is granted by Home Affairs. They argue that to do otherwise would
render the Immigration Act an empty vessel in relation to foreigners who enter the
country illegally and, after a long stay in the country, make assertions that they seek to
make an application for asylum.
present themselves without delay to the authorities and show good cause for their i llegal entry
or presence.”
20 The principle 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.
21 Abore above n 7 at para 45.
22 Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC); 2019 (3) BCLR 383 (CC) at
paras 14-16.
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[27] The respondents seek a dismissal of the application. However, they submit that
they embrace the overriding principle of non -refoulement and propose a specific order
in the event that this Court finds in the applicant’s favour. They propose that he should
be ordered to enrol the matter in the High Court for hearing and the respondents ordered
to ensure that he is not deported to Ethiopia pending finalisation of his application for
asylum by a RSDO and to provide him with a temporary 14 -day asylum permit, to be
extended if his application is not finalised within 14 days.
Discussion
[28] Two issues arise from this background. The first concerns the time afforded to
an illegal foreigner, in this case the applicant, to apply for an asylum seeker permit in
terms of the Refugees Act after entering the country. The second is whether the illegal
foreigner is entitled to be released from detention after expressing an intention to seek
asylum while awaiting deportation until such time that his or her applica tion has been
finalised.
[29] The first issue may be disposed of shortly as this Court has already settled it in
Ruta23 and, more recently, in Abore.24 These decisions have unequivocally established
that once an illegal foreigner has indicated their intention to apply for asylum, they must
be afforded an opportunity to do so. A delay in expressing that intention is no bar to
applying for refugee status. Abore, following Ruta, held that although a delay in
applying for asylum is relevant in determining credibility and authenticity, which must
be made by the RSDO, it should at no stage “function as an absolute disqualification
from initiating the asylum a pplication process”.25 Until an applicant’s refugee status
has been finally determined, the principle of non-refoulement protects the applicant
from deportation.
23 Id.
24 Abore above n 7.
25 Id at para 47.
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[30] To answer the second issue, it is necessary to consider the relevant legislative
framework wh ich underwent amendment with effect from 1 January 2020. 26 These
amendments followed after Ruta but do not detract from its ratio and the relevant broad
principles this Court laid down in the decision. 27 The starting point is section 2 of the
Refugees Act which was unaffected by the changes and reads:
“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 subjected 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, national ity, 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 or disrupting public order in either part or the whole of that country.”
[31] Abore neatly articulated this Court’s eloquent description of the nature and
purpose of these provisions and the other principles laid down in Ruta as follows:
“In a nutshell, this Court in Ruta highlighted that our country adopted [a] rticle 33 of
the [Convention], which guarantees the right to seek and enjoy in other countries
asylum from persecution. It also clarified that Parliament decided to enforce the
Convention in the country through secti on 2 of the Refugees Act. Section 2 captures
the fundamental principle of non -refoulement. As this Court reasoned, the
1951 Convention protects both what it calls ‘de facto refugees’ (those who have not yet
had their refugee status confirmed under domestic law), or asylum seekers, and ‘de jure
refugees’ (those whose status has been determined as refugees). The protection applies
as long as the claim to refugee status has not been finally rejected after a proper
26 Sections 4 and 21 of the Refugees Act, which are relevant for present purposes, were substantively amended
and the Refugees Regulations 2000 GN R366 GG 21075, 6 April 2000 (old Regulations) were repealed in their
entirety and replaced with the Refugees Reg ulations, 2018, GN R1707 GG 42932, 1 January 2020
(new Regulations).
27 Ruta above n 20. See also Abore above n 7 at para 42 citing Ruta.
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procedure. This means that the right to seek asylum should be made available to every
illegal foreigner who evinces an intention to apply for asylum, and a proper
determination procedure should be embarked upon and completed. The ‘shield of
non-refoulement’ may only be lifted after that process has been completed.”28
[32] Ruta also made the point that the Immigration Act, which regulates the entry and
exit of foreigners (including potential asylum seekers) into and out of the country, and
the Refugees Act, which provides for the reception and managemen t of asylum seeker
applications, must be read harmoniously. This Court went on to say:
“Though an asylum seeker who is in the country unlawfully is an ‘illegal foreigner’
under the Immigration Act, and liable to deportation, the specific provisions of th e
Refugees Act intercede to provide imperatively that, notwithstanding that status, his or
her claim to asylum must first be processed under the Refugees Act. That is the
meaning of section 2 of that Act, and it is the meaning of the two statutes when rea d
together to harmonise with each other.
. . .
[T]he 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.”29
[33] Section 23(1) of the Immigration Act empowers the Director-General, subject to
the prescribed procedure under which an asylum transit visa may be granted, to issue
an asylum transit visa to a person who at a port of entry claims to be an asylum seeker.
This visa is valid for five days only, for travel to the nearest RRO in order to apply for
asylum. In terms of section 23(2), if that visa expires before the person reports at a
RRO in order to apply for asylum in terms of section 21 of the Refugees Act, its holder
shall become an illegal foreigner and be dealt with in accordance with the
Immigration Act.
28 Ruta above n 20 at para 42.
29 Id at paras 43 and 46.
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[34] Section 4(1) of the Refugees Act, which deals with exclusion from refugee
status, was amended with effect from 1 January 2020 to incorporate two new groun ds
of exclusion, as follows:
“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—
. . .
(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, institutionalisation or any other
compelling reason: Provided that this provision shall not apply to a pe rson
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.”
[35] These provisions require an asylum seeker to advance compelling reasons to the
RSDO for the failure to have an asylum transit visa or for entering the country illegally
or for failure to report to a RRO within five days.
[36] Section 21 of the Refugees Amendment Act 30 stipulates the procedure for the
making of an asylum application and now provides in relevant part:
“(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 accordance with
the prescribed procedures, to a Refugee Status Determination Officer
30 The applicant challenged the constitutionality of section 21(1) of the Refugees Amendment Act in his written
submissions. But no claim at all was made for such relief during the hearing and accordingly I say no more about
this submission. Neither do I venture any opinion on the constitutionality or otherwise of any of the amendments
to the Refugees Act and the new Regulations thereto as no substantial constitutional attack has been launched
against them.
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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.
. . .
(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.
(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 applicatio n 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.”
[37] Regulation 7 of the new Regulations is titled “Asylum transit visa”, and provides:
“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;
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(c) names and surname;
(d) date of birth and age;
(e) nationality or origin; and
(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.”
[38] Regulation 8 in relevant part provides:
“(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
Office 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 unde r 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 not 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.
. . .
(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
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).”
[39] Importantly, regulation 2(2) of the old Regulations, which perished with the rest
of those regulations when the new Regulations came into force on 1 January 2020, gave
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an illegal foreigner who intended seeking asylum an automatic right to so apply and
made provision for the temporary release of an illegal foreigner pending the making of
an asylum application. The new Regulations do not contain a comparable provision.
Regulation 2(2) of the old Regulations provided:
“Any person who entered the Republic and is encountered in violation of the Aliens
Control Act, who has not submitted an application pursuant to sub-regulation 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.”
[40] The ordinary wording of this provision was clear. Read with section 22 of the
unamended Refugees Act, once that intention was expressed, the person was entitled to
be freed subject to further provisions of the Refugees Act. 31 As stated, there are no
provisions similar to the old regulation 2(2) in the new Regulations. Instead,
regulation 7 of the new Regulations, which deals with asylum transit visas, imposes
conditions more stringent than the old Regulations and requires an individual to declare
his or h er intention to apply for asylum while at a port of entry before entering the
country and not when he or she is encountered in violation of the Immigration Act. And
once he or she has expressed such an intention, he or she must provide his or her
biometrics and other relevant data as required and only then would he or she be eligible
to be issued with an asylum transit visa for five days.
[41] Regulation 8, which governs the asylum application process, is similarly strict.
It requires a person who does not po ssess an asylum transit visa when seeking asylum
at a RRO to show good cause for his illegal entry into or stay in the Republic as
contemplated in article 31(1) of the Convention. This must be done before the person
is permitted to apply for asylum. Arti cle 31(1) envisages that refugees must present
31 Abore above n 7 at para 23.
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themselves without delay to the authorities and show good cause for their illegal entry
or presence.32
[42] On the interpretation of section 21(1B), this Court said the following in Abore:33
“Section 21(1B) of the [Refugees Act] imposes its own requirements which seem to be
aimed at eliciting more information from an illegal foreigner. It provides that a person
who may not be in possession of an asylum transit visa, contemplated in section 23 of
the Immigration Act , must be interviewed by an immigration officer to ascertain
whether valid reasons exist as to why that person is not in possession of such a visa. It
is not clear at what stage the interview envisaged in section 21(1B) should be
conducted. However, it seems that the requirement in regulation 8(3) that the applicant
for asylum should show good cause for his or her illegal entry or stay in the Republic
prior to them being permitted to apply for asylum, means that this must be done during
the interview. It also seems that the applicant for asylum must furnish good reasons
why he or she is not in possession of an asylum transit visa before he or she is allowed
to make an application for asylum. In addition, regulation 8(4) empowers a judicial
officer to req uire any foreigner appearing before court, who indicates his or her
intention to apply for asylum, to show good cause as contemplated in
sub-regulation (3). If regulations 8(3) and (4) are read with section 21(1B), it appears
that good cause which is required to be shown refers to the reasons that must be given
on why the applicant for asylum does not have an asylum transit visa.”
[43] It is clear, therefore, that the combined effect of the amended provisions in
sections 4(1)(h) and (i) and 21(1B) of the Refug ees Amendment Act and regulations 7
and 8(3) is to provide an illegal foreigner, who intends to apply for asylum but who did
not arrive at a port of entry and express his or her intention there, with a means to evince
the intention even after the five -day period contemplated i n section 23 of the
Immigration Act. The illegal foreigner does so during an interview with an immigration
officer at which they must show good cause for their illegal entry or stay in the country
32 See n 18 above.
33 Abore above n 7 at para 29.
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and furnish good reasons why they do not possess an asylum transit visa, before they
are allowed to apply for asylum.
[44] In my view, these provisions do not offend the principle of non-refoulement
embodied in section 2 of the Refugees Act. Their effect is by no means out of kilter
with article 31 of the Convention, the fount of section 2. Rather, they accord with its
import because it too does not provide an asylum seeker with unrestricted indemnity
from penalties. The article provides that a Contracting State may not impose penalties
on refugees on account of their illegal entry or presence in the country provided they
present themselves without delay to the authorities and show good cause for their illegal
entry or presence.
[45] The applicant admittedly entered the country illegally by “j umping the border”,
in his own words. He had no passport and did not obtain an asylum transit visa at a port
of entry. He remained in the country illegally for over a year. He alleges that since his
arrival on these shores he has been precluded from mak ing an asylum application by
circumstances beyond his control – the closure of the RROs due to the COVID -19
outbreak. These facts form a basis for him to show good cause as required by law.
The door is not closed to an application for asylum.
The lawfulness of the continued detention
[46] It remains to be determined whether there is a lawful basis to detain an illegal
foreigner whilst the process of establishing whether there was good cause for the
absence of a visa and an asylum application is yet to occur.
[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 det ention is authorised by
section 34 of the Immigration Act. However, where the detained person has been
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charged with a criminal offence in terms of section 49(1), the further detention may also
be authorised by the Criminal Procedure Act.34
[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 regulat e 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.
[49] Section 49(1) reads:
“(a) Anyone who enters or remains, 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.”
[50] The applicant in this case falls within the ambit of paragrap h (a) of the
subsection. 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 entitle d him to be released
from such detention. The answer must be no.
[51] Once more, it is significant to mention that article 31 of the Convention does not
give an illegal foreigner unrestricted indemnity from penalties. It requires them to
present themselves without delay to the authorities and to show good cause for their
illegal entry or presence.
34 51 of 1977.
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[52] Further, this Court in Ruta made clear that the Refugees Act, despite its wide
compass, is meant to cater only for authentic asylum seekers and genuine refugees.
This Court left no doubt as to the great importance of the responsibility which this
legislation is intended to regulate – the sanctity of our country’s sovereignty and the
protection of our national borders. As this Court put it:
“The statute spells ou t prominent exclusions from refugee status. In addition, it
specifies precisely when refugee status ceases. Inside the asylum determination
process, the Minister may ‘at any time’ withdraw an asylum seeker permit if the
application has been found to be m anifestly unfounded, abusive or fraudulent. An
asylum seeker whose permit is withdrawn may be arrested and detained. And, finally,
a Refugee Status Determination Officer ‘must’ reject an application for asylum if it is
‘manifestly unfounded, abusive or fraudulent’.
None of this provides a sweetheart’s charter for bogus asylum seekers or an open door
for non -refugees. Nor do the provisions render our borders leaky to a flood of
importuning supplicants posing as asylum seekers. The Refugees Act’s provisions and
its mechanisms are hard-headed and practical. In design and concept they protect our
national sovereignty and our borders.”35
[53] It follows that the implementation of the statute must be equally hard-headed and
practical. This brings one to a practi cal challenge which is created by the applicant’s
submission that an illegal foreigner may not be detained from the time of evincing an
intention to seek asylum until formally making the asylum application and that an illegal
foreigner in immigration detention is entitled to be released from detention immediately
once an intention to apply for asylum is expressed.
[54] The absence in the legislation of provisions similar to the old r egulation 2(2)
poses an anomalous and highly undesirable scenario that could re sult if an illegal
foreigner in the applicant’s position were simply allowed to remain at large on their
mere say-so that they intend to seek asylum. That person would remain undocumented
35 Ruta above n 20 at paras 39-40.
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and there would be absolutely no means of checking whether they ind eed promptly
applied for asylum. There would be nothing to stop them from making the same claim
to the next immigration officer who encounters them, thus repeatedly preventing their
detention. That is not a result the Legislature could have intended.
[55] In Abore this Court was not required to decide the lawfulness of detention under
the Immigration Act before an application for asylum had been submitted. But it did
make findings which support the view that the detention of an illegal foreigner pending
the submission of an application for asylum that is authorised by a court’s warrant of
detention is valid as the court order must be obeyed until set aside.36
[56] The order of the High Court before us made no provision for the applicant’s
release. One presumes that as an illegal foreigner awaiting deportation or criminal trial
for his contravention of the Immigration Act, he would have been lawfully detained
under the auspices of sections 34 and 49(1)(a) of the Immigration Act read with the
Criminal Procedure Act. But, the respondents’ legal obligation to assist him with the
process of applying for asylum in accordance with his expressed wish, which they
should have set in motion once he made his intention to seek asylum known to them,
throws a spanner in the works.
[57] It was undisputed in the High Court papers that the applicant informed the
officers who arrested him, in July 2022 that he wanted to apply for asylum and had been
trying to do so since his arrival in the country in June 2021. However, until the hearing
of the application before this Court, the respondents had made no effort at all to assist
him in that regard. The lapse of several months of inaction on the respondents’ part
whilst the applicant was left to wallow in detention hardly accords with this Court’s
injunction in Ruta, Abore and their ilk, that once an illegal foreigner evinces an intention
to seek asylum they must be afforded an opportunity to do so.
36 Abore above n 7 at paras 49-51.
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[58] In that case, the applicant’s detention – to the extent that it rested on section 34 –
may have become unlawful at some point, once a reasonable period elapsed with no
effort made on the respondents’ part to bring him before a RSDO for the process
envisaged in section 21(1B) of the Refugees Amendment Act, read with regulation 8(3).
But p recisely when that would have been is difficult to discern in light of the new
amendments to the relevant legislative regime, especially the repeal of the old
regulation 2(2), discussed above. To the extent that the applicant’s detention was
authorised pursuant t o section 49(1) of the Immigra tion Act read with the
Criminal Procedure Act, the immigration officials’ failure to facilitate his asylum
application would not render his detention unlawful. In my view, a just and equitable
remedy under section 172(1)(b) i n all the circumstances would be to compel the
respondents to facilitate his application for asylum, failing which to release him from
detention unless he may lawfully be detained under the Criminal Procedure Act.
[59] To sum up, the applicant is entitled to an opportunity to be interviewed by an
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
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
determined – 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
become 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,
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particularly 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 arrang ements either to
transport the applicant to a RRO for his interview or to bring the relevant i mmigration
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.
Costs
[60] The applicant has enjoyed substantial success in the matter and is, on the basis
of the principle in Biowatch,37 entitled to the costs of the applications in the High Court
and in this Court.
Order
[61] I make the following order:
1. Leave for direct appeal is granted and the appeal succeeds.
2. The order of the High Court is set aside and is replaced with the following:
“(a) 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.
(b) The first and second respondents shall pay the costs, including the
costs of two counsel where employed.”
3. The first, second, fourth and fifth respondents are directed, to the extent
necessary, to take all reasonable steps, within 14 days from the date of
37 Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14; 2009 (6) SA 232 (CC); 2009 (10) BCLR 1014
(CC).
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this order, to give effect to paragraph 2(a) failing which the applicant must
be released from detention forthwith unless he may lawfully be detained
under the Criminal Procedure Act 51 of 1977.
4. The first and second respondents shall pay the costs, including the costs
in this Court of two counsel where employed.
For the Applicant:
For the Respondents:
S Vobi and A Nase instructed by
Manamela MA Attorneys
N A R Ngoepe instructed by State
Attorney, Pretoria