The appellants’ status as an asylum seeker and a recognized refugee respectively were established by the identification of their files and the second appellant’s permit. The court was faced with two arguments by the respondents.
First, the respondent argued that because the appellants were at the Inadmissible facility at the airport, they were outside South Africa's jurisdiction. The court relied on the case of Lawyers for Human Rights and the Nkondo case to reject this. The court also pointed out that the Immigration Act prohibited the prevention of access to the Republic of any person who has been forced to flee the country of her or his birth. Such persons have a right to apply for refugee status, and it is unlawful to refuse them entry if they are bona fide in seeking refuge.
Second, the respondent argued that South African courts could not interfere with a deportation order originating in Namibia. The court held that this would constitute an unwarranted administrative intrusion into the affairs of the Republic, a sovereign state. The appellants were within South Africa and were therefore entitled to the protection of its laws, even if they happened to have arrived in the course of being deported from another sovereign state. Moreover, reg 9(1) published in terms of the Act expressly provided for a second application by a returning refugee.
Constitutional law; asylum seeker(s); jurisdiction; Refugee(s); deportees; persons at ports of entry; persons held in port facilities; rights of deportees
The proceedings were initiated by a protection officer at the United Nations High Commissioner for Refugees (‘UNHCR’) in South Africa, on behalf of the applicants, who were two Somalian nationals being held at the Inadmissible Facility at the OR Tambo International airport in Johannesburg. They had earlier fled Somalia for South Africa but, because of their fears of xenophobia here, had left for Namibia. They were arrested and deported from Namibia as illegal aliens and informed the UNHCR officer via telephone that they were on the verge of being placed on a flight back to Somalia. The official tasked to deal with the appellants’ case refused to permit their entry into the country on the ground that the appellants were Namibian deportees and that South African authorities had no jurisdiction to interfere with another state’s deportation order. The court a quo agreed with this, but the appellants were granted leave to remain in the Inadmissible facility pending appeal.
The appeal was upheld. The respondents were directed forthwith to release the Applicants from detention in the Inadmissible Facility, and the court declared that the First Applicant was entitled to remain in South Africa until a decision has been made on his application for asylum, while the Second Applicant was entitled to remain in South Africa in accordance with his status as a refugee. The Respondents were ordered to pay the costs of the application.
It was held that passengers on an international flight landing in South Africa are subject to the jurisdiction of South African courts, and denying Constitutional protection to those who are physically inside the country at sea- or airports merely because they have not entered South Africa formally would constitute a negation of the values underlying our Constitution. The court moreover criticised the respondents' conduct of the litigation, stating that the respondents’ officials failed to understand the very object and purpose of the Act it was their duty to apply, causing unnecessary litigation and wasted costs.