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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2026/186100
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In the matter between:
DEMEKE ABAYINE SABICHO First Applicant
FIKADU WOLDE HANDEBO Second Applicant
and
MINISTER OF HOME AFFAIRS First Respondent
THE DIRECTOR GENERAL DEPARTMENT
OF HOME AFFAIRS Second Respondent
REFUGEE RECEPTION OFFICER Third Respondent
THE DIRECTOR OF THE NATIONAL PROSECUTING
AUTHORITY Fourth Respondent
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
[24 August 2026] ………………………...
SIGNATURE
ACTING JUDGE G NEL
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This Judgment is delivered electronically. Regardless of the date appearing on this
written Judgment, the deemed date of delivery is the actual date that the Judgment is
uploaded to CaseLines.
___________________________________________________________________
J U D G M E N T
___________________________________________________________________
Introduction
[1] In this Application, the Applicants, Demeke Abayine Sabicho and Wondimu Wolde
sought, inter alia, the following relief in the Urgent Court:
[2.1] A declaration that the Applicants may not be arrested, detained for purposes of
deportation, removed, deported, extradited, or otherwise returned to their country
of origin, pending the final determination of their applications for asylum lodged in
terms of Section 21 of the Refugees Act, Number 130 of 1998 (as amended) (“the
Refugees Act”);
[2.2] An order directing the First to Fourth Respondents to take all reasonable steps to
give effect to the declaratory order sought in paragraph [2.1] above;
[2.3] An order directing the First to Fourth Respondents to issue temporary asylum
seeker permits in terms of Section 22 of the Refugees Act to the Applicants,
pending the final determination of their applications for asylum status;
[2.4] An order declaring that the criminal proceedings in the Randburg Magistrates
Court, under case numbers 03/5718/24 and 03/571/24, relating to the Applicants
unlawful presence in the Republic of South Africa are suspended or stayed in
terms of Section 21 of the Refugees Act, pending the finalisation of the Applicants’
applications for asylum status;
[2.5] Alternatively to the relief set out in [2.4] above, interdicting the Fifth Respondent
from continuing with the criminal proceedings against the Applicants in the
Randburg Magistrates Court under the case numbers referred to above, pending
the finalisation of the Applicants’ applications for asylum seekers' status; and
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[2.6] An order directing the Respondents to pay the costs of the Application as between
attorney and client on Scale B.
[3] After hearing the submissions of counsel for the Applicants and the Respondents,
I made an Order that the Application is struck from the Roll for lack of urgency,
and that the Applicants, jointly and severally, were to pay the Respondent's costs
on Scale B.
[4] It is an unfortunate result of urgent proceedings that the Presiding Judge in the
Urgent Court does not have the luxury of writing extensive judgments at leisure,
but is required to make an Order without delay, and, when applicable, provide any
reasons for such Order as soon as possible thereafter.
RELEVANT FACTUAL MATRIX
[5] The Applicants are adult male Ethiopian citizens, currently residing in Cosmos
City, Randburg, Johannesburg.
[6] The Applicants allege that they are not fluent in the English language and have
required an interpreter at the criminal proceedings in the Randburg Magistrates
Court.
[7] There is no explanation provided as to whether the Affidavits on which the
Applicants rely were translated for them or explained to them by any particular
person, but this is not an issue that became necessary to consider during the
hearing of the Application.
[8] Although this aspect is somewhat vague, it appears that the Applicants left
Ethiopia at the beginning of 2024.
[9] The applicant's stated that they were being persecuted in Ethiopia, that they feared
for their life, liberty, and physical safety, and had no reasonable or viable
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alternative other than to seek international protection in the Republic of South
Africa.
[10] It is not clear whether the Applicants approached the Department of Home Affairs
upon their arrival in South Africa, as this aspect was not set out in any detail, and
was not only vague, but was also contradicted by what was set out in the
Respondents’ Second Replying Affidavit.
[11] The Applicants were arrested on 19 November 2024 by the South African Police
Services and were charged with contraventions of Section 49(1) of the Immigration
Act, Number 13 of 2002, as amended (“the Immigration Act”).
[12] The Applicants may have attended at the Department of Home Affairs prior to, and
subsequent to their arrest, but as already set out, this aspect was not dealt with in
any detail.
[13] The Applicants then formally applied for asylum at the Tshwane Refugee Centre
on 24 July 2025. It is alleged that the Applicants visited the Tshwane Refugee
Centre “several times”, but no details or dates were provided in respect of such
visits.
[14] At the time of their arrest, the Applicants advised the arresting officers that they
were seeking asylum status in the Republic of South Africa, and that they had
visited the Tshwane Refugee Reception Office for the purpose of applying for
asylum seekers p ermits but were not assisted due to the backlog of pending
applications.
[15] Both Applicants are currently out on bail and are attending the criminal
proceedings at the Randburg Magistrates Court of their own volition.
[16] The Applicants state that they fear that if found guilty of the contravention of
Section 49(1) of the Immigration Act, the Applicants may be deported to Ethiopia.
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[17] The Applicants state in the Founding Affidavit that during the criminal proceedings
they have consistently informed the Magistrate, through their legal representative,
Mr. Manamela, that they had expressed their intention to apply for asylum and
were entit led to have their asylum applications accepted, processed, and
determined.
[18] It is recorded in the Founding Affidavit that Mr. Manamela placed on record, during
the criminal proceedings, on 29 May 2026, 25 June 2026, and 9 July 2026, that
the criminal proceedings could not be conducted fairly because no competent
interpreter had be en provided to assist the Applicants. This has resulted in the
criminal proceedings been postponed on every occasion.
[19] It appears that on 9 July 2026, Mr. Manamela brought an application, in terms of
Section 342A of the Criminal Procedure Act, Number 51 of 1977, submitting that
the criminal proceedings had been unreasonably delayed and that the continued
postponements infr inged the Applicants’ constitutional right to a fair trial, as
envisaged by Section 35(3) of the Constitution.
[20] The Magistrate presiding over the criminal proceedings dismissed the application,
and the criminal proceedings were postponed to 21 August 2026.
[21] The Applicants allege that they are likely to be found guilty of the contravention of
Section 49(1), and that such finding of guilt would affect their pending applications
for asylum, and that they faced a real and imminent risk of arrest, detention, and
deportation to Ethiopia before their asylum applications could be fully processed
and determined.
[22] The Application was opposed by the First, Second, Third, and Fourth
Respondents, and two Answering Affidavits were filed, one on behalf of the First,
Second, and Third Respondents, and the second on behalf of the Fourth
Respondent.
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[23] At the hearing of the application, counsel for the Respondents made submissions
to the effect that the Application was not urgent, that any urgency was self-created,
and that the Application should be dismissed for lack of urgency, and struck from
the Roll, with costs.
[24] Applicants’ counsel made substantial and detailed submissions, relating not only
to the aspect of urgency, but also the merits of the entire Application.
THE ISSUE OF URGENCY
[25] In the Founding Affidavit, the Applicants essentially alleged that the Application
was urgent, having regard to the pending continuation of the criminal proceedings
on 21 August 2026, and that the Applicants had satisfied the requirements of
Urgency.
[26] In the Replying Affidavit the Applicants sought to bolster the aspect of urgency,
and it was raised, for the first time, that the date that triggered urgency was 17
June 2026, being the “last day for processing our application for asylum”.
[27] The Applicants alleged that they became eligible for temporary asylum seeker
permits in terms of section 22 of the Refugees Act on 17 June 2026. There is no
explanation as to why the launching of the Urgent Application was delayed from
17 June 2026 until 3 August 2026, if such date was the “trigger event” date.
[28] In the Replying Affidavit the Applicants version mutated somewhat in that it was
stated that on 9 July 2026 the Applicant's attorney, Mr. Manamela , made
application in the Randburg Magistrates Court for the criminal proceedings to be
halted or suspended pending the determination and finalization of the Applicants
asylum status applications.
[29] I raised this discrepancy with the Applicants’ counsel, who informed me that he
had attempted to ascertain what had occurred at the various criminal proceedings,
and that he was advised that this application was launched on 9 July 2026.
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[30] Despite the contradiction, there was no Confirmatory Affidavit from the Applicants’
attorney, and no explanation as to the contradictions between the Founding
Affidavit and the Replying Affidavit.
[31] There was no proper explanation provided as to what had occurred since the
arrest of the Applicants in November 2024 and why they appear to have only made
application for asylum seeker status on 25 March 2026.
[32] The Applicants only launched this Application on 3 August 2026, requiring the
Respondents to indicate their intention to oppose the relief sought in the
Application on 4 August 2026 and to file Answering Affidavits on 5 August 2026.
The Application was then set down for hearing on 11 August 2026.
[33] It is trite that an applicant in an urgent application must, in complying with the
requirements of Rule 6(12) of the Uniform Rules of Court explicitly state the
reasons that render the application urgent and why the applicant would not obtain
substantial redress in due course. It is equally trite that such reasons must be set
out in the applicant's founding affidavit.
[34] An applicant cannot simply sit back when the clock starts ticking but must take
reasonable steps to bring an application for urgent relief within a reasonable time.
[35] An applicant must also show that the time period afforded to respondents to deal
with an urgent application are appropriate in relation to the degree of urgency
asserted and are as far as practicable in accordance with the Uniform Rules of
Court.
[36] In the matter of Ex Parte Sibiya v Old Mutual Life Assurance (SA) Limited and
Others 1, the Court reiterated and broadly outlined the requirements for an urgent
application, and stated that in addition to setting out explicitly the circumstances
which render the matter urgent with full and proper particularity and setting out the
1 Ex Parte Sibiya v Old Mutual Life Assurance (SA) Limited and Others (025033/2025) [2025] ZAGPPHC
259 (13 March 2025)
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reasons why an applicant believes that he or she will not get substantial redress
at a hearing in due course, the urgency must also not be self-created.
[37] In the matter of Chung Fung Pty Ltd and another v Mayfair Residents Association
and Others 2, it was stated that self -created urgency is not constituted by delay
alone but also implies a degree of contrivance to jump a queue. It was also stated
that an applicant that is fully appraised of its rights and any harm that it may suffer
cannot wait unti l the last possible moment to launch an urgent application, and
that such conduct would constitute an abuse.
DISCUSSION
[38] Having considered all of the allegations in the Affidavits and the submissions made
on behalf of the Applicants relating to urgency, I ultimately found that the
Application was not urgent, as any potential urgency was clearly self-created.
[39] As regards the submissions that the Applicants would not be afforded substantial
redress at a hearing in due course, I was, and am, of the view that the bringing of
the Application in the Urgent Court is in effect premature, as the Application
launched in this Urgent Court ought properly to have firstly been launched in the
Magistrates Court hearing the criminal proceedings, at the first appearance of the
Applicants in the Magistrates Court , when they became entitled to bring such an
application.
[40] Even if the Applicants only subsequently became aware of their entitlement to
bring an application of the nature now raised, there is nothing preventing the
Applicants from raising such application at the next date for the continuation of the
criminal proceedings.
2 Chung Fung Pty Ltd and another v Mayfair Residents Association and Others (2023/080436) [2023]
ZAGPJHC 1162 (13 October 2023)
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[41] There is also no certainty that the criminal proceedings will indeed proceed on 21
August 2026, and there is no certainty that any findings will be made on 21 August
2026, to the effect that the Applicants would be arrested, detained or deported.
[42] The real “trigger” for an urgent application would be the arrest of the Applicants
with an intention to detain and ultimately deport the Applicants.
[43] There is nothing preventing the Applicants from appealing or, if appropriate,
reviewing the findings of the criminal proceedings in the Randburg Magistrates
Court.
[44] There cannot be any merit in the submission that if the Applicants are found guilty
in the Magistrates Court of a contravention of the Immigration Act, they would not
be able to proceed with their asylum seekers applications. If the criminal
proceedings should not have taken place, or should have been stopped, as was
submitted to me, an incorrect finding of a Magistrate could not hamper any asylum
application.
[45] The conduct of the Applicants in launching the application only on 3 August 2026,
and requiring the Respondents, who are all government functionaries or
departments, to file Answering Affidavits by 5 August 2026, is clearly an abuse, as
the Respondents were not provided reasonable time periods.
[46] The failure to have launched the Application timelessly and provide reasonable
time periods resulted in Answering Affidavits and a Replying Affidavit having to be
prepared during the course of the week of the sitting of the Urgent Court and the
Application ultimately being heard on Friday 14 August 2026.
ORDER
[47] In the circumstances, I made an Order, which I repeat below;
[47.1] The Application is struck from the Roll for lack of urgency.
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[47.2] The Applicants, jointly and severally, are to pay the costs of the Respondents on
scale B.
_______________________________
G NEL
Acting Judge of the High Court,
Gauteng Division,
Johannesburg
DATE OF JUDGMENT: 19 AUGUST 2026
JUDGMENT REISSUED: 24 AUGUST 2026
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Appearances
Counsel for the Applicants: Adv SI Vobi
Instructed by MI Manamela Attorneys
Counsel for Respondents Adv Siyabonga Tshungu
Instructed by State Attorney