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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

Case Number: 136642/2024

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED: YES/NO

DATE: 17/12/24

 SIGNATURE

 

In the matter between:

 

UCHE ORIE                                                                                                           Applicant

 

and

 

MINISTER OF HOME AFFAIRS                                                              First Respondent

 

DIRECTOR-GENERAL OF THE DEPARTMENT                                Second Respondent

OF HOME AFFAIRS

 

DEPUTY DIRECTOR-GENERAL: DEPORTATIONS                             Third Respondent

OF THE DEPARTMENT OF HOME AFFAIRS

 

 

JUDGMENT

Joyini AJ

 

INTRODUCTION

[1]          The applicant was before this Court on urgent basis on 10 December 2024, seeking an order in the following terms: that the application be treated as urgent and the court dispense with the normal forms and services in accordance with the provisions of Rule 6(12); that the respondents be interdicted from deporting him until his status under the Refugees Act,[1] alternatively the Refugees Act as amended by the Refugees Amendment Act,[2] has been lawfully and finally determined; that his continuing detention be declared unlawful; and that the respondents be directed to release him from detention at Lindela Repatriation Centre, within five days; and that the respondents be ordered to pay the costs of this application.  

 

[2]          The application is unopposed. The respondents were properly served but opted not to participate in the proceedings.

 

BACKGROUND FACTS

[3]         The applicant, who is a Nigerian national, entered the Republic of South Africa in June 2016 through an unauthorised port of entry with an intention to apply for asylum. He left Nigeria which is his country of origin due to persecution. Having entered the country, he was issued with a temporary asylum permit which was extended several times. He tried to get his temporary asylum permit extended in 2023 without any success. On 12 September 2024 he was, in terms of section 34(1) of the Immigration Act,[3] arrested and detained in the East London Police Station for failing to produce a valid permit. The Magistrate Court in East London ordered that he be transferred to the deportation facility around October 2024. He is currently in detention at the Lindela Repatriation Centre, awaiting deportation to Nigeria. Around 30 October 2024, he filed through his attorney, a judicial review application at the Pretoria High Court under case number 2024-124849 reviewing the decision rejecting his asylum application. His attorney sent a letter of demand to the second respondent requesting his release in order to enable him to have access to the internal remedies afforded by the Refugees Act.

 

DISCUSSION AND ANALYSIS

Urgency

[4]         For all the reasons alluded to by the applicant in his papers, the application is urgent. The urgency thereof was triggered when the applicant was arrested and detained. The applicant has been declared an illegal immigrant and an order for his deportation has been issued by the Magistrate Court. The date for his deportation has not been secured but there is an imminent threat of deportation. The applicant stands to suffer prejudice should he be deported to a country where he is likely to face persecution and possibly death. In particular, when his status application has not been finally determined.

 

Whether the Applicant should be deported 

[5]         It is the applicant’s claim that he cannot be deported to his country of origin because he remains an asylum seeker as his refugee status has not been finally determined. In support of this supposition, the applicant relies on section 2 of the Refugees Act which he contends protects aspirant asylum seekers, like him, from deportation to the country of their origin where they may be subjected to persecution.

 

[6]          In defending himself against the imminent deportation by the respondents, the applicant invokes the principle of non-refoulement. He alleges in his papers that even though his application for asylum was rejected, his refugee status has not been fully finalised because he has not exhausted all his remedies. As stated in paragraph 3 above, “[3] … Around 30 October 2024, he filed through his attorney, a judicial review application at the Pretoria High Court under case number 2024-124849 reviewing the decision rejecting his asylum application. His attorney sent a letter of demand to the second respondent requesting his release in order to enable him to have access to the internal remedies afforded by the Refugees Act.” Under these circumstances, it is his contention that his refugee status remains not fully determined and he cannot, therefore, in accordance with the principle of non-refoulement, be deported.

 

[7]         The Constitutional Court in Ruta,[4] one of its many cases where the principle of non-refoulement was a subject matter for determination, held as follows:

 

"[28]   The right to seek and enjoy asylum means more than merely a procedural right to lodge an application for asylum - although this is a necessary component of it. While States are not obliged to grant asylum, international human rights law and international refugee law in essence require states to consider asylum claims and to provide protection until appropriate proceedings for refugee status determination have been completed. 

 

[29] In sum, all asylum seekers are protected by the principle of non- refoulement, and the protection applies as long as the claim to refugee status has not been finally rejected after a proper procedure."

 

[8]          In another Constitutional Court judgment in Ashebo,[5] it was held: "[29]   until an applicant's refugee status has been finally determined, the principle of non- refoulment protects the applicant from deportation."

 

[9]         Furthermore, at paragraph 31 of that judgment, the court expressed itself as follows: “The [non-refoulement] protection applies as long as the claim to refugee status has not been finally rejected after a proper 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.”

 

[10]     The law as it stands is that until an applicant’s refugee status has been finally determined, the principle of non-refoulement protects her/him from deportation.

 

[11]     In the premises, the relief sought by the applicant not to be deported at this stage, holds sway. There is ample, uncontroverted evidence, that points to the fact that the applicant’s refugee status has not been finally determined. He is protected by the principle of non-refoulement from deportation until the process for determining his status has been completed.

 

 Whether the Applicant should be released from detention

 

[12]     As regards the release from detention, the applicant seeks an order declaring his continued detention to be unlawful. He is, furthermore, seeking an order that the respondents be directed to release him from detention at Lindela Repatriation Centre in order to enable him to have access to the internal remedies afforded by the Refugees Act.

 

[13]     Section 34(1) of the Immigration Act provides: “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.”

 

[14]     It thus appears that upon arrest without a warrant, the applicant was taken to the Magistrates’ Court for the confirmation of his status as an illegal foreigner and an order for his continued detention and subsequent deportation. The question, therefore, is whether the applicant is entitled to be released from detention upon expressing an intention to have access to the internal remedies afforded by the Refugees Act and his filed judicial review application whilst the order of the Magistrate Court that declared him an illegal immigrant to be detained and subsequently deported, is still standing.

 

[15]     It is common cause that there is no relief sought on the papers against the order of the Magistrate Court which confirmed the status of the applicant as an illegal immigrant and further ordered his detention and eventual deportation. Which means that the applicant is detained in terms of a valid Court Order. Even if such relief had been sought, this Court, as constituted, has no authority to set that order aside. 

 

[16]     The question of whether a person held in detention for deportation in terms of section 34(1) of the Immigration Act should be released pending the finalisation of his/her refugee status, was finally settled in the Constitutional Court judgment in Ashebo,[6] where at para 39 of that judgment the Court held: “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 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.”

 

[17]     According to the court in its judgment, the ordinary wording of regulation 2(2) was clear. Read with section 22 of the unamended Refugees Act, once the intention to apply for asylum was expressed, the person was entitled to be freed subject to further provisions of the Refugees Act. The court found that there are no provisions similar to the old regulation 2(2) in the new Regulations which came into operation on 1 January 2020.[7]

 

[18]      According to the Court in Ashebo, there are two sections in the Immigration Act regulating the arrest and detention of illegal foreigners, namely, sections 34 and 49. Both sections regulate the illegal entry and stay by non-South African citizens in the country. However, each has a distinct purpose.  Section 34 authorises the detention of an illegal foreigner solely for the purpose of deportation whilst section 49 authorises the detention of a person where he/she has been charged with a criminal offence. Section 34 is primarily intended for deporting illegal foreigners and detaining them for that purpose whereas section 49 criminalises certain conduct.[8] 

 

[19]      When addressing the issue of the unlawfulness of such detention,[9] the Court in its reasoning, presumed that as an illegal foreigner awaiting deportation or criminal trial for his contravention of the Immigration Act, the applicant would have been lawfully detained under the auspices of section 34 and 49(1)(a) of the Immigration Act read with the Criminal Procedure Act.[10]

 

[20]     The Court went further to state that whether the detention was in terms of section 34 or pursuant to a criminal charge in terms of section 49, the same question of whether the applicant’s expression of an intention to apply for asylum entitled him to be released from such detention, would arise. The Court held that the answer to such a question must be answered in the negative[11] because: “The absence in the legislation of provisions similar to regulation 2(2) poses an anomalous and highly undesirable scenario that could result If an illegal foreigner in the applicant’s position were simply allowed to remain at large on the mere-say-so that they seek asylum. That person would remain undocumented and there would be absolutely no means of checking whether they indeed 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.”[12]

 

[21]     A submission was made on behalf of the applicant that his continued detention in terms of section 34(1) is unlawful. This assertion was supported by referring to the judgment in Ashebo whereat the court alluded, at paragraph 58 of that judgment: "Section 34 does not create or refer to any criminal offence. Section 34 is primarily intended for deporting illegal foreigners and detaining them for that purpose." The court elaborated further on how the said section may be applied in instances where an applicant is in detention by stating that to the extent that the detention may rest on section 34 it may become unlawful at some point, once a reasonable period elapsed with no effort made on the respondents' part to bring the applicant before a RSDO for the process envisaged in section 21(1B) of the Refugees Amendment Act, read with regulation 8(3).

 

[22]     However, Ashebo is distinguishable from the present matter in that firstly, in Ashebo, unlike in this matter, the court was dealing with an asylum seeker who had not as yet applied for the determination of his status, whereas in the current matter the applicant’s status application had been rejected. It is in that regard that the court was of the view that the detention would lapse once a reasonable period has lapsed with no effort by the respondents to bring the applicant before a RSDO.  Secondly, it does not appear that in Ashebo the detention in terms of section 34 that was considered by that Court, was in terms of a Court Order, hence its finding that the detention would become unlawful at some point. In this instance, the applicant’s status as an illegal foreigner was confirmed by the Magistrate Court that further ordered the applicant’s detention and subsequent deportation.

 

[23]     It is trite that an order of Court, which is valid, remains in effect until set aside by a proper forum. Furthermore, it was held in the Constitutional Court decision in Abore[13] 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. This principle will, similarly, find application in the circumstances of this current application where the applicant, who seeks to pursue the internal processes to finally determine his refugee status, is detained by an order of a Magistrate’s Court. Until that order is set aside, the applicant cannot be released from detention as he has been lawfully detained.

 

[24]     In order to avert an impasse, where an applicant who seeks to follow the process of establishing whether there was good cause for the absence of a visa and an asylum application is yet to occur, is languishing in detention unable to present himself for such a process, the Constitutional Court in Ruta[14] and Ashebo opted to issue an order in terms of section 172(1)(b) of the Constitution. In terms of the said section, the court found it a just and equitable remedy to compel the respondents (in that matter) to facilitate the applicant’s application for asylum, failing which to release him from detention unless he may be lawfully detained under the Criminal Procedure Act.

 

[25]     The difference in the current application is that the applicant is not required to appear personally before anyone for the remedies that he seeks to pursue to finalise his asylum application. Section 24A provides that the rejected application should be brought before the Standing Committee. This actually, is a process that should be undertaken internally without anything expected from the applicant. From the papers on record it is not apparent whether this process has already taken place or not. If it has not taken place a letter addressed by the applicant or his legal representatives will suffice. Similarly, in terms of section 24B which entitles the applicant to appeal the decision of the RSDO, the applicant can with the assistance of his legal representatives file the appeal.

 

[26]     It is also evident that the applicant’s legal representatives have already filed a judicial review against the decision. There is thus no need to issue an order in terms of section 172(1)(b) of the Constitution like the Court in Ruta and Ashebo did.

 

COSTS

[27]     The applicant has sought a costs order against the respondents. It is common cause that the respondents have not participated in the proceedings. There is no submission on the papers as to why a cost order should be granted against the respondents. I am not persuaded that a cost order should be granted against the respondents. As such, no order as to costs is made.

 

ORDER

[28]    In the circumstances, the following order is made:

 

[28.1]            The application is declared urgent.

 

[28.2]            It is declared that the applicant is, in terms of section 2 of the Refugees Act 130 of 1998, entitled to remain lawfully in the Republic of South Africa.

 

[28.3]            The respondents are ordered to refrain from deporting the applicant until his status has been determined and finalised. 

 

[28.4]            No order as to costs.

 

 

T E JOYINI

ACTING JUDGE OF THE HIGH COURT, PRETORIA

 

APPEARANCES:

For the applicants:	Adv S.B. Mngomezulu
Instructed by:	Jafta (Lerato) Attorneys
For the respondents:	No appearance
Instructed by:	No appearance
Date of Hearing:	10 December 2024
Date of Judgment:	17 December 2024

This Judgment has been delivered by uploading it to the Court online digital data base of the Gauteng Division, Pretoria and by e-mail to the Attorneys of record of the parties. The deemed date and time for the delivery is 17 December 2024 at 10h00.

 

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