Abdi and Another v Minister of Home Affairs and Others (734/2010) [2011] ZASCA 2; 2011 (3) SA 37 (SCA); [2011] 3 All SA 117 (SCA) (15 February 2011)

Abdi and Another v Minister of Home Affairs and Others (734/2010) [2011] ZASCA 2; 2011 (3) SA 37 (SCA); [2011] 3 All SA 117 (SCA) (15 February 2011)

The Supreme Court of Appeal held that the appellants, as a recognised refugee and an asylum seeker, were entitled to re-admission and protection in South Africa under the Refugees Act and the Constitution. The court rejected the respondents' argument that detention in the Inadmissible Facility placed the appellants outside South African jurisdiction, affirming that constitutional rights apply to all persons physically present in the country. The respondents' refusal to admit the appellants and issue appropriate permits was unlawful, as it contravened both domestic and international legal obligations prohibiting refoulement and requiring the protection of refugees from persecution. The...

Citation
[2011] ZASCA 2
Parties
Appellant: Mahamad Arwah Abdi; Appellant: Yusuf Ali Dhiblawe; Respondent: The Minister of Home Affairs; Respondent: The Director General, Department of Home Affairs; Respondent: Kenya Airways; Respondent: Analytical Risk Management International; Respondent: Airports Company South Africa
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 February 2011
Case Number
734/2010
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court, Pretoria
Outcome
Appeal upheld with costs, including costs of two counsel. The order of the court a quo is set aside and replaced with operative orders for the release and protection of the appellants.
Judges
MPATI, CACHALIA, LEACH, TSHIQI, BERTELSMANN
Legal Topics
Refugees Act, Right of Entry, Jurisdiction of Courts, International Refugee Law, Constitutional Rights, Promotion of Administrative Justice Act
Administrative Law Constitutional Law Refugees Act Right of Entry Jurisdiction of Courts International Refugee Law Constitutional Rights Promotion of Administrative Justice Act

Case Brief

Summary, issues, holding and outcome

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Parties

Mahamad Arwah Abdi

Appellant

Yusuf Ali Dhiblawe

Appellant

The Minister of Home Affairs

Respondent

The Director General, Department of Home Affairs

Respondent

Kenya Airways

Respondent

Analytical Risk Management International

Respondent

Airports Company South Africa

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court, Pretoria

Legal Issues

  1. 1 Whether the appellants, as a recognised refugee and an asylum seeker, were entitled to re-admission and protection in South Africa after being deported from Namibia.
  2. 2 Whether detention in the Inadmissible Facility at OR Tambo International Airport placed the appellants outside the jurisdiction of South African courts.
  3. 3 Whether South African authorities were obliged to issue asylum transit permits and allow the appellants to remain pending the outcome of their applications.

Ratio Decidendi

The Supreme Court of Appeal held that the appellants, as a recognised refugee and an asylum seeker, were entitled to re-admission and protection in South Africa under the Refugees Act and the Constitution. The court rejected the respondents' argument that detention in the Inadmissible Facility placed the appellants outside South African jurisdiction, affirming that constitutional rights apply to all persons physically present in the country. The respondents' refusal to admit the appellants and issue appropriate permits was unlawful, as it contravened both domestic and international legal obligations prohibiting refoulement and requiring the protection of refugees from persecution. The...

Court Disposition

Appeal upheld with costs, including costs of two counsel. The order of the court a quo is set aside and replaced with operative orders for the release and protection of the appellants.

Orders

  • The Fourth and Fifth Respondents are directed forthwith to release the Applicants from detention in the Inadmissible Facility at OR Tambo International Airport.
  • It is declared that the First Applicant is entitled to remain in South Africa until a decision has been made on his application for asylum and, where applicable, the Applicant has had an opportunity to exhaust his rights of review or appeal in terms of Chapter 2 of the Refugees Act 130 of 1998 and the Promotion of...