South Africa: South Gauteng High Court, Johannesburg

10.  In the subsequent leave to appeal judgment,[4] the Full Court contextualised the lawfulness of detention of asylum seekers:

“[9]  ….. The judgment dealt with persons who had not yet shown good cause. In any event, it bears repeating that neither persons who have not shown good cause, nor de-jure or de-facto refugees can be deported after intimating their intention to apply for asylum, or once being granted asylum as in the case of de-facto refugees. However, unlike de-jure and de-facto refugees, for those who have not shown good cause, as the main judgment went to great lengths to explain, there is no protection from detention arising from a contravention of section 49(1) of the Immigration Act.” [Underlining my own]

11.  As a general principle, the reliance on Ashebo by the Respondents in casu to justify the continued detention of the applicants at Lindela is accordingly misplaced.  Ashebo, as read with Lebore, is in fact authority for the converse: de-jure and de-facto refugees are protected from detention arising from a contravention of section 49(1) of the Immigration Act. Where applications for asylum have already been made, the protections contained in S22 and S21(4) of the Refugee’s Act have already been “triggered”.

Boamah v The Minister of Home Affairs and others Case no: 2024-068962

Background

12.  The applicant alleges that he fled Ghana and upon his arrival in the Republic around 2019, he applied for asylum, and  was issued with an asylum seeker permit bearing file number PTAGH00024021. He only renewed the said asylum seeker permit once, around 2020. He was unable to renew his asylum seeker permit due to the covid-19 outbreak. When the Refugee Reception centre re-opened around 2023, he approached the Refugee Reception centre situated in Pretoria, in order to renew the permit, however on each occasion that he had been to the centre he was turned back at the gate without being assisted and advised that access to the centre is through appointment only.

13.  In his founding affidavit he further states that:

“I was arrested in Tembisa on the 22^nd  of February 2024, in Gauteng Province and charged and detained for contravention of the immigration laws of the Republic, notwithstanding the fact that I informed the arresting officers that I am an asylum seeker in the Republic who is in possession of an asylum seeker permit which has expired and I could not renew it due to no fault of my own, and I requested that I be afforded an opportunity to renew same, however my pleas were ignored and I was finally detained Lindela on the 13 of June 2024 for the purpose of deportation.”

14.  The Respondents have provided further clarity regarding what happened after the arrest of the Applicant:

14.1.  The Applicant was sentenced and convicted by the Madadeni Magistrate court on 24 April 2024. The learned magistrate ordered that he was: “Sentenced to undergo 3 (three) months direct imprisonment. Ito Section 34 of the Immigration Act 13/2002 it is ordered that the accused be deported before the expiry of his sentence.”

14.2.  His sentence therefore runs until 23 of July 2024.

14.3.  Having served a portion of his sentence, on the 20^th of May 2024, he was placed under the correctional supervision (“parole”) of the Department of Home Affairs pending deportation. He is currently being held at Lindela detention facility in Krugersdorp pending such deportation

15.  The Respondents assert that the matter, having been brought on severely trunctuated timeframes, is not urgent. According to this argument, as the Applicant’s sentence runs until the 24^th of July 2024, the risk of deportation was not imminent enough to justify the degree of urgency upon which the application was brought. The problem with this assertion lies in the fact that the Magistrate’s order pertinently indicated that he is to be deported before the end of his sentence. To my mind, whether correct or not, the implication of such an order is sufficient to reasonably apprehend  the imminence of harm.

16.  They have also, as a point in limine, raised the non-joinder of the Minister of Correctional Services, in view of the fact that the Applicant is currently still subject to correctional supervision. In view of my finding, I do not intend to deal with this objection.

17.  In their unsigned answering affidavit (to which the Applicant has replicated), the Respondents had admitted that the Applicant was the holder of an expires temporary asylum permit. However, their signed affidavit, filed later, includes a new paragraph in terms of which the authenticity of the asylum seeker permit attached to the Applicant’s founding papers is challenged. They assert that the asylum seeker permit bearing file number PTAGH00024021 was issued to another person. As proof, a screenshot or photo of a screen is attached showing that the permit was issued to a certain Boateng as far back as at least 2014.

18.  In his supplementary submissions, counsel for the Applicant drew the Court’s attention to the fact that the screenshot attached by the Respondents in fact relates to a permit with file number PTAGHA00024021. Upon personal perusal of the two documents, I am satisfied that the screenshot attached to the answering affidavit, relates to a different file. Accordingly, the assertion of fraud made by the Respondents is blatantly incorrect and stands to be disregarded.

19.  As discussed supra, as the Respondent is the holder of an (expired) temporary asylum permit, the protections of Sections 21(4) and 22 of the Refugee’s Act would apply and he would be eligible to be released from Lindela and the issuance of a Section 22 asylum permit. However, the fact that he has already been convicted in terms of the Immigration Act and is currently still serving his sentence in that regard, complicates matters somewhat.

20.  The Respondents are detaining the Applicant pursuant to the order of the Magistrates’ Court, which order is binding until set aside. However, this Court has not been asked to sit as a Court of review or appeal (as the case may be) for purposes of setting aside the conviction and sentencing in this regard. Furthermore, the non-joinder of the Minister of Correction (per the respondents’ point in limine) as well as the non-joinder of other interested parties such as the NPA and the Magistrate, in any event would have barred this Court from deciding the issue. As such, despite the fact that the detention is unlawful by virtue of the provisions of the Refugee’s Act, this Court cannot order the Respondents to contravene a binding order of the Magistrate’s Court.

21.  I further agree with counsel for the Respondents that the Applicant’s papers are far from satisfactory. The founding affidavit failed to provide full details relating to the arrest and conviction. The Applicant, for instance, insists that he was arrested in Tembisa, Gauteng, but fails to explain why he was then brought before a Magistrate in KwaZulu Natal. Most importantly however, despite it being pointed out that there is a binding court order for his detention, the Applicant proffered no argument as to how the Respondents are to disregard such an order. Instead, it pinned its entire case to the mast of the provisions of S21(4) of the Refugee’s act. During argument it was submitted that the Respondents should have released the Applicant back into the custody of the Department of Correction for the determination of other correctional supervision. That might be so, but, having failed to join the Minister of Correction to these proceedings, I decline to make any finding in this regard.

22.  Under the circumstances, the Applicant must stand and fall with his stated case. The order I intend to make herein should not be construed to imply that any of the Applicant’s legal remedies of review or appeal (relating to the criminal conviction and sentencing) are determined. The order is simply put, the only order the Applicant has left this Court with.

23.  As to the issue of costs, I am not inclined to grant any cost order. The Respondents, acting pursuant to a valid Court order, that the Applicant did not challenge, could not have released the Applicant from detention even had they agreed that by virtue of Section 21(4) of the Refugee’s Act, they had no grounds for detaining him. On the other hand the application was essential to the Applicant in the protection of his Constitutional rights, as well as his rights under the principle of non refoulement.

ORDER

24.  I accordingly order as follows:

1. The forms and service provided for in the Rules of this Court are dispensed with where necessary, and this application is heard on urgent basis in terms of Rule 6 (12) (a)

2. The Respondents are directed to release the Applicant from detention at Lindela Repatriation centre under file number 202406130120,  once the impediment to such release created by the order for conviction and sentencing of the Magistrate Madadeni Magistrate Court on the 24th of April 2024, ceases to exist; alternatively on the 24th of July 2024; whichever event occurs the earliest.

3. The Respondents are interdicted and restrained from deporting the Applicant until such time that the Applicant status in the Republic of South Africa has been fully and finally determined in terms of the Refugees Act 130 of 1998 and until such time that the Applicant has fully exhausted his review or appeal process in terms of chapter 4 of the Refugees Act and the promotion of Administrative Act of 2000;

4. The Respondents are directed to re-issue the Applicant asylum seeker permit bearing file number PTAGH00024021 in terms of section 22 of the Refugee Act 130 of 1998 within 5 days of service of this order upon them;

Ike Goodluck v Minister of Home Affairs and other - Case no: 2024/070763

25.  By contrast, in the Goodluck matter, the Applicant has applied for relief terms of the Refugee’s Act against the first to fifth Respondents  (“Home Affairs”), as well as relief aimed at the criminal proceedings instituted against him pursuant to the Immigration Act against the sixth to tenth Respondents (“NPA”).

26.  Initially the notice of motion was couched as an interim interdict pending the outcome of judicial review proceedings to have the decision to deny the Applicants application for asylum set aside. In broad strokes, the following was sought:

26.1.  Against the NPA:

-  Reviewing and setting aside the decision/outcome of the representation rendered by an Acting District Court Control Prosecutor; Ms. Maria Fyff, dated 26 June 2021;

-  Declaring the decision to be inconsistent with the Refugee Act 130 of l998, the Immigration Act 13 of 2002, the provision of Promotion of Administrative Justice Act and the Constitution of the Republic of South Africa, 1996;

-  That the Applicant immediately be released from detention at Modderbee Prison

26.2.  Against Home Affairs:

-  Permitting the Applicant to bring the present application without exhausting any further applicable internal remedies as may be found to exist under section 8 of the Immigration Act;

27. The Applicant had been issued a temporary asylum seeker permit in 2010. During 2021 he was arrested and charged with contravention of section 49(l)(a) of the Immigration Act. He was informed then that his asylum application had been rejected by a Refugee Status Determination Officer. He was then detained at the Boksburg Police Station pending deportation.

28.  His erstwhile legal representative then assisted him in lodging a Review application in terms of Rule 53, with the South Gauteng High Court (Johannesburg) under case no: 2021/28198. Home Affairs denies that such an application was ever served on them. The notice of motion attached to the founding affidavit, whilst showing that it was issued by Court, also does not contain proof of such service. The Applicant’s representatives have submitted that they, as the new representatives are not in possession of same.

29.  The Applicant then made representation to the Control Senior Public Prosecutor requesting that the charges against him be withdrawn, pending the finalisation of all processes available to him under the Refugee Act. The Magistrate’s Court ordered his release and the charges against him were withdrawn.

30.  Upon his release from the Boksburg Police Station, the then Head of the Boksburg Regional Office of the Department of Home Affairs issued him with a “Notice by Immigration Officer to person to appear before Director General” to approach the Refugee Reception Office for his asylum to be re-issued. He allegedly approached the Refugee Reception Office in Pretoria on multiple occasions from June 202I, however, officials at Marabastad repeatedly informed him that they were waiting for instruction from their legal services to re-issue him with a temporary asylum seeker permit. Despite requests from his legal representatives, he has not been assisted in this regard.

31.  The founding affidavit does not pertinently address the ensuing events, however, from the documentation filed, it is evident that at some point during 2022 the applicant had to bring an urgent application before this Court (similar to the present one)  for his release from detention and prohibiting his deportation pending the outcome of judicial review proceedings instituted in the Pretoria High Court under case no: 81523/18 . Following written confirmation from Home Affairs, as well as the state attorney that they have had sight of a review application and that therefore he cannot be considered to be an illegal immigrant, the following order was made:

“2. Pending the final determination of the issues in the Review Application under Case No: 81523/18 before the Pretoria High Court, the Respondents. are directed to release the Applicant from unlawful detention at the Hillbrow Police Station forthwith;

3. The Respondents are interdicted from arresting and departing the Applicant from the until such time when the Applicant has exhausted all the remedies available to him und Refugee Act,I30 of 1998;

4. For purposes to be legal in the Republic pending the outcome of the Review Application case number 81523/18 before the Pretoria High Court, the Applicant is entitled to have his temporary asylum visa/permit renewed in terms of section 22 of the Refugee Act l3 of l998;

5. The First, Second, Sixth and Seventh Respondents are directed to file the record in the Review Application pending before the Pretoria Provincial Division of the High Court under case number 81523/18 within15 days of this Order;

8. If the First, Second, Sixth and Seventh Respondents fail to file the record referred to in paragraph hereof, in terms hereof, the Applicant shall exercise his rights in terms of the Uniform Rules of the Honourable Court  within 15 days of such failure on the part of the First and Second Respondents;”

32.  Despite confirming that that the temporary permit was not issued and that the record was not provided, the Applicant has failed to indicate any steps taken in terms of the Uniform Rules to enforce his rights in this regard.

33.  I pause the chronology to add that it should be immediately apparent, from the case numbers, that the applicant has, in fact, lodged two review applications, one before the Pretoria High Court in 2018 (81523/18) and one before this Court in 2021 (2021/28198). Despite a request from this Court for an explanation as to the status and/or the outcome of the 2018 review application, the applicant has failed to indicate why the 2021 review application was brought.

34.  On the 08^th of August 2023, he was arrested on suspicion of possession of illicit substance. He appeared before a Presiding Officer at the Goksburg Magistrate Court where he was formally charged.  At a later stage, the initial charge of possession of drugs was withdrawn. However, the State decided to lay another charge of contravention of section 49(l)(a) of the Immigration Act 13 of 2002. The State relied on the Department of Home Affairs to determine his legality and in so doing, his bail was allegedly denied based on a Section 212 sworn statement by an official of the Department of Home Affairs.

35.  He then made representations to 8^th Respondent contending he had been wrongfully charged with contravention in terms section 49(l)(a) of the Immigration Act, 13 of 2002, as he had filed an application for judicial review before this Court under case no: 2021/28198. On the 26^th of June 2024, the 8^th Respondent informed the Applicant that his representations for withdrawal were unsuccessful. In her reasons for her decision she, inter alia states that:

35.1.  A final decision to reject the Applicant’s application for asylum had been made prior to May 2021 “and as such the time lapse is a consideration that cannot be ignored.”

35.2.  In terms of Ashebo, the state has a duty to assist Applicants where they have made their intention to apply for asylum known. She acknowledges that this “is not the case in the present matter”, but then in any event proceeds to rely on Ashebo to justify continued detention.

35.3.  She also “….contacted the Registrar of the court telephonically and was informed that no matter under that case number is found in their system under the name of the accused.”

36.  The present application was launched on the 27^th of June 2024.

Urgency

37.  Home Affairs contends that, as it has not issued a notice to deport, the deportation of the Applicant is not imminent. The NPA made a similar argument.

38.  Both sets of Respondents, however, have failed to adequately address the trite principal that in cases where a person’s constitutionally entrenched right to freedom and security of person is affected, an application aimed at restoring same would be prima facie urgent. Whilst it may be true that deportation is not imminent per se, the continued incarceration of the Applicant constitutes ongoing harm and by virtue thereof is urgent.

39.  As to the urgency vis-à-vis Home Affairs, I  note that his detention is based on their confirmation that he is an illegal foreigner. Ordering the NPA to release him from detention would be ineffectual under circumstances where Home Affairs maintains his illegal status – he would run the risk of simply being arrested and charged again. Seen from this perspective, the joinder of Home Affairs and the relief sought against it, it crucial for this Court to make an effective order.

The Respondent’s submissions

40.  Home Affairs contends that this Court does not have jurisdiction to decide the matter as that would constitute interference with the ongoing criminal proceedings before the Boksburg Magistrate Court. In the answering affidavit it argues that: “…this is not a bail appeal or review application for the court to even be amenable to release the Applicant on bail. Besides no case has been made out to show that the decision of the Magistrate to deny the Applicant bail was wrong.”

41.  Having denied receipt of the judicial review application, it submitted that even if such an application does exist, it does not bar criminal prosecution under section 49(1) (a). In its heads of argument it postulates the following:

“If the court finds that jurisdiction has been engaged, it should answer the question of what becomes of section 49(1)(a) of the Immigration Act and 65 of the CPA. This will mean that illegal foreigners cannot longer be criminally prosecuted for contravention of the law and if denied bail there would be no need to appeal, they can simply run to the urgent court and hide behind the principle of non-refoulment.”

42.  It is obvious that Home Affairs submissions are by and large based on the assumption that the Applicant is an illegal foreigner.

43.  The NPA, for their part, have, in their supplementary submissions, conceded that ‘lawful detention’ per Ashebo does not apply to the Applicant. Despite this acknowledgement they seemingly seek to apply the dictum in Ashebo relating to cases where a good cause interview (to determine whether a person is a bona fide asylum seeker) has not been held, to cases where a finding on the bona fides of the asylum application has already been made, arguing that:  “The detention of persons alleged to be illegal in the country pending their good cause interviews, asylum application process, appeals and review applications is not unlawful.” [Underlining my own].  This is a distortion of the finding in Ashebo and is not founded in law.

44.  On a slightly sounder footing, they further argued that the Applicant has failed to prove that he has brought an application for judicial review and that “(t)he mere indication that Mr Goodlock has previously or intends to bring a review application does not automatically trigger the protections in Section 2 of the Refugees Act until he in fact brings such an application and ensures that he is granted an extension of his asylum permit in terms of section 22 of the Refugees Act>.”