The court found the initial decision was mistaken in concluding that the repeal of old regulation 218 significantly altered the law on detainee release. The Constitutional Court and Supreme Court of Appeal did not solely rely on the existence of the old regulation 2 in their findings, with two of the four SCA cases considering it only as part of the reasoning. Interpreting the context, regulation 8(4) should adhere to established law and the limits of regulations being intra vires. This suggests that the court, when considering a detainee release application, should order release for bureaucratic processes completion, even if skeptical about the application's prospects or the applicant's motivation.

Date of judgment

Asylum seeker, illegal foreigner, asylum, asylum transit visa, asylum permit, non-refoulement, detention, administrative detention, imprisonment

Case citations
(2021/0013; 2021/0014; 2021/01004) [2023] ZAGPJHC 217

This case involved three separate applications that were consolidated into one. The applicants were foreign nationals who had applied for asylum in South Africa. The first two applications were for the review of the decisions of the Minister of Home Affairs to refuse the applicants’ applications for asylum. The third application was for an order declaring that the applicants were entitled to apply for asylum in South Africa.

Decision/ Judgment

The court held that the State failed to justify the ongoing detention, and there was no need to address the applicant's request for additional remedies. Consequently, the applicant was entitled to be released.

Basis of the decision

Regulation 8(4)

Reported by
Supported by the UNHCR