The issues to be determined were whether the principles in the case of Ruta v Minister of Home Affairs, in which the court had held that an illegal foreigner who claims to be an asylum seeker and expresses an intention to apply for asylum should be permitted to apply in terms of the Refugees Act, are applicable to someone in the applicant's position; or whether the amendments to the Refugees Act change the law from the position expressed in Ruta, and whether a delay between an illegal foreigner’s arrival in South Africa and his or her expression of an intention to apply for asylum bars him or her from applying for refugee status.
The respondents submitted that the amendments to the Refugees Act which came into effect on 1 January 2020, and the new Regulations relating thereto, have the effect that the Ruta principles no longer apply because the applicant was arrested and only indicated his intention to apply for asylum after the amendments came into effect.
The court held that the Refugees Act, which came into operation on 1 January 2020, did not have the effect of barring persons in the applicant's position from applying for asylum. The Court held that the amendments merely introduced an additional step, in the form of an interview, before a person may be permitted to apply for asylum. Regarding the lawfulness of the applicant’s detention, the Court stated that his custodial sentence ended on 25 August 2020, which entitled him to be released. He was therefore kept in detention without just cause or in the absence of a court order from 26 August 2020 until 7 February 2021. The Court further held that the applicant’s continued detention after the expiry of the court order extending his detention was also unlawful.
Constitutional law; refugee law; rights of refugee; deportation; refugee status; lawfulness of administrative action
The applicant was an illegal foreigner from Ethiopia who, at the time the application was launched, was detained at the Lindela Repatriation Facility awaiting deportation. On 8 June 2020, He was arrested at Eshowe, KwaZulu-Natal, for unlawfully entering and residing in South Africa and served his sentence, which officially ended on 25 August 2020. While serving his sentence, the applicant brought an urgent application seeking a rule nisi directing the respondents (the Minister and Director-General of the Department of Home Affairs) not to remove him from the holding cells and interdicting the respondents from deporting him to Ethiopia. On 21 July 2020 the High Court, Durban granted these interim orders. The respondents then gained a court order extending his detention and initiated the deportation process. A warrant of detention of the applicant was issued which ordered the head of the detention facility to detain him until such time he is removed from the Republic of South Africa. The applicant then sought an order interdicting the respondents from deporting him until his status under the Refugees Act had been determined. He further sought an order declaring his detention to be unlawful and that he be released from jail in order to approach a Refugee Reception Centre to apply for asylum. The High Court dismissed the application with costs.
The court upheld the appeal with costs and declared that the applicant is entitled to remain in the Republic pending the final determination of his asylum application. The Court further directed the respondents to take all reasonable steps within 14 days of its order to give effect to the applicant’s intention to apply for asylum in terms of the provisions of the Refugees Amendment Act.
The interests of justice favoured the granting of direct leave to appeal. Section 2 of the Refugees Act, which remains unamended by the Refugees Amendment Act, gives expression to the principle of non-refoulement as espoused by this Court in Ruta v Minister of Home Affairs and the amendments do not affect the ratio in Ruta when dealing with the delay by an illegal foreigner in applying for asylum.