Bakala v Minister of Home Affairs and Another (2024/06419) [2024] ZAGPJHC 599 (21 June 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

CASE NO: 2024-064194 In the matter between: MULGIETA BAKALA Applicant And THE MINISTER OF HOME AFFAIRS First Respondent THE DIRECTOR-GENERAL, DEPARTMENT OF HOME AFFAIRS Second Respondent

AND 18 RELATED MATTERS : CASE NUMBERS 2024-064192; 2024-061122; 2024-064846; 2024-064849; 2024-060899; 2024-064198; 2024-063961;

2024-060965; 2024-063989; 2024-061133; 2024-065459; 2024-065461; 2024-065465; 2024-065467; 2024-064468; 2024-065471; 2024-065474;

2024-065475

This judgment was handed down electronically by circulation to the parties legal representatives by email, and uploading on Caselines. The date and time for hand-down is deemed to be 10h00 on 24 June 2024

JUDGMENT

MARCUS AJ

INTRODUCTION

[1] When the urgent roll was published on Friday 14 June 2024 (for the week of 17-21 June 2024) it contained 51 matters. In 21 of those matters, either the Minister or the Department of Home Affairs was cited as a respondent. Nineteen of the matters concerned applications by asylum seekers who are currently in detention at the Lindela Holding Facility in Krugersdorp (“Lindela”). They approached court urgently essentially seeking orders interdicting their deportation from South Africa pending the final determination

of their asylum applications.

[2] These 19 applications are spearheaded by three firms of attorneys. Save for differences in personal details, the notices of motion and founding affidavits in each cluster of cases are otherwise virtually identical. The applications all have one common feature : they all say that the applicants are being detained at Lindela, and they are at risk of imminent deportation.

[3] By way of example, in the application of Mulgieta Bakala v the Minister of Home Affairs, in which the applicant is represented by Maladzhi and Sibuyi Attorneys, the relief sought is the following:

“1. Condoning Applicant’s non-compliance with the rules relating to service and time periods and dealing with this matter as one of urgency in terms of rule 6(12) of the Uniform Rules of Court.

2. Directing the Respondents to take all necessary steps within 5 days of granting of this order to afford the Applicant a hearing in

terms of section 21 of the Refugees Act 130 of 1998, read together with regulation 8 of the Refugee Act thereto, to show good cause for his illegal entry and stay in the Republic of South Africa.

3. Interdicting and restraining the First and Second Respondents from deporting the Applicant until such time that the Applicant’s

Status in the Republic of South Africa has been fully and finally determined in terms of the Refugees Act 130 of 1998 and until such time that the Applicant has fully exhausted his review or appeal process in terms of Chapter 4 of the Refugees Act and the Promotion of Administrative Act of 2000.

4. Directing that in the event that the Respondents fail to comply with paragraph 2 above the applicant is to be released from detention forthwith.

5. In the event the applicant show good cause to the Respondents, the First and Second respondent are directed, upon submission by the Applicant, of his asylum application, to accept the Applicant’s asylum application, and to issue him with a temporary asylum seeker in accordance with section 22 of the Refugee Act, pending finalisation of his claim, including the exhaustion of his right of review or appeal in terms of the time period as afforded to him in terms of Chapter 3 of the Refugees Act and the Promotion of Administrative Justice Act 3 of 2000.

6. The Respondents are jointly and severally directed to pay the costs of this application on attorney and client scale.

7. Final and/or alternative relief.”

I have reproduced the notice of motion verbatim.

[4] In the application of Abdullah Zene v The Minister of Home Affairs, in which the applicant is represented by Tony Okorie Attorneys Inc, the relief sought is in the following terms:

“1. Dispensing so far as need be, with the forms and service provided for in the Uniform Rules of Courts, and disposing of this application at such time and place and in such manner and according to such procedure as this Court deems fit in terms of Rule 6(12) of the rule of this Court.

2. The Respondents are directed to afford the Applicant the opportunity to show good cause at the Reception Refugee Office within 5 days and apply for his asylum permit.

3. The Respondents are directed to immediately release the Applicant from the Lindela Holding Facility after good cause has been shown by the Applicant.

4. To the extent necessary, permitting the Applicant to bring this application without exhausting any applicable internal remedies

provided for in section 8 of the Immigration Act 13 of 2002.

5. To the extent necessary, reviewing and setting aside any decision of the Magistrate's Court to extend a warrant of detention, if any, issued or extended in terms of section 34(1)(d) of the Immigration Act read with Regulation 28(4) of the Regulation thereto.

6. The Respondents are directed to issue the Applicant with a temporary asylum seeker permit in terms of section 22 of the Refugee Act 130 of 1998 pending finalisation of all process regarding this application.

7. Interdicting the Respondents from deporting the Applicant unless and until their status under the Refugee Act 130 of 1998 has been lawfully and finally determined.

8. The Respondents are directed to pay costs of this application jointly and severally, one paying the other to be absolved.

9. Granting such further or alternative relief as the Court deems just.”

I have again reproduced the notice of motion verbatim.

[5] In the application of Dasote Womago v the Minister of Home Affairs, in which the applicant is represented by Buthelezi NF Attorneys Inc, the relief sought is cast as follows:

“1. Dispensing, so far as need be, with the forms and service provided for in the Uniform Rules of Court and disposing of this application at such time and place and in such manner and according to such procedure as the court deems fit in terms of Rule 6(12) of the Uniform Rules.

2. Subject to the applicant approaching the Refugee Office as contemplated in paragraph 5 below, the first and second respondents are interdicted from deporting the applicant unless and until his status under the Refugees Act 130 of 1998, alternatively under Refugees Act 130 of 1998 as amended by the Refugees Amendment Act 11 of 2017, as being lawfully and finally determined.

3. It is declared that in terms of section 2 of the Refugees Act 130 of 1998 (Act) the Applicant may not be deported until he has had an opportunity of showing good cause as contemplated in Regulation 8(3) of the Refugees Amendment Act 11 of 2017, if such good cause has been shown, until his application for asylum has been finally determined in terms of the Act.

4. The respondents are directed to the extent necessary, to take all reasonable steps, within 14 days from the date of this order per

paragraph 3 above, failing which the applicant must be released from detention forthwith.

5. The Applicant is directed to approach the offices of the Respondent after having shown good cause in terms of in regulation 8(3) per paragraph 3 above, to apply for an asylum permit in terms of section 21(1) of the Refugees

of the Refugees Act forthwith.

6. The respondents are to pay the costs of this application, jointly and severally, the one paying the other to be absolved on a scale as between attorney and client.

7. Granting the applicant further and/or alternative relief.”

Again, I have reproduced the notice of motion verbatim.

[6] The virtually identical nature of the affidavits by the respective attorneys involved raises concerns. It calls to mind the observations

of Wallis AJ (as he then was) in Cele v South African Social Security Agency and 22 related cases.[1] That case concerned multiple applications for social security. The court observed:

“The matters in question emanated from four firms of attorneys and they in turn appeared to be instructed by two agencies that assist persons applying for social assistance grants, who encounter problems in the administration of these grants. (I will refer compendiously to social assistance grants as including all forms of grants provided for in the Social Assistance Act 2004 (the 2004 Act) or its predecessor, the Social Assistance Act 59 of 1992 (the 1992 Act)). On enquiry I was informed from the bar that these agencies charge a fee for their services, although I was not told either the amount of the fee or the basis upon which it is calculated, or how people so impoverished that they qualify for social assistance grants can afford to pay fees. As appears later in this judgment the legal costs of these matters are substantial and, when multiplied by the number of cases involved, enormous.”[2]

[7] Wallis AJ further observed, in relation to the cases before him, that the attorneys in question “appear to have established a mini-industry in cases of this type”[3] The applications before me, like those that served before Wallis AJ, appeared to have been “run off on a computer using a standard word-processing programme”.[4] I have reproduced the notices of motion verbatim, not because I am concerned with grammatical imperfections, especially In cases

concerning individual liberty but because the attorneys involved have simply replicated them in the various cases they have initiated.

[8] The problem of what might be termed conveyor-belt litigation has reared its head in the precise context of detained asylum seekers and has been pertinently addressed by a Full Bench of this Division in Lembore and others v Minister of

Home Affairs and others.[5] In that case, Mlambo JP (Twala J and Collis J concurring) made the following pertinent observations :

“[93] Each separate application are similar and evince identical backgrounds save for certain specifics such as the dates when they left their countries of origin, when they entered South Africa, when and where they were arrested. Lastly on this point, the same grammatical errors appear in each application giving the inescapable impression that one application was drafted and that cutting and pasting resulted in the other applications. In fact, a quick glance at the Ashebo papers in this court evince the same factual matrix as we have in the application before us. It appears that these matters are the product of template processes. This raises the question whether this conduct doesn’t amount to a serious abuse of the court process, especially that they are issued on the urgent roll of this court.

[94] Our view is that the six applications initially issued were essentially one application. As pointed out above the allegations in each application are the same. The applications were also issued by the same lawyers. The inescapable impression is that one application was prepared which was then followed by cutting and pasting from that first version to produce six different applications. The issues raised in each of these applications are the same hence the subsequent consolidation of the applications. This is an issue that we feel should be considered further. We have therefore decided to suspend making an order as to costs and direct that the parties file further affidavits addressing this matter. The applicants are directed to file an affidavit to explain why a finding shouldn’t be made that their conduct amounted to an abuse of the judicial process and further why a punitive order as to costs shouldn’t be made against them and/or their lawyers. The applicants and/or their lawyers are to file these further representations within 14 days from the date of this judgment and the respondents must file their representations within 14 days thereafter.”

[9] In light of these (and other) concerns I called these matters on Tuesday 18 June. Counsel for the three firms of attorneys were present. There was no appearance on behalf of the Department of Home Affairs which has, thus far, not put up any answering affidavits, let alone any notices of opposition. I stood the matter down until Wednesday 19 June in order to allow counsel for the three firms of attorneys to address me on various concerns arising in the applications and to ascertain the attitude of the respondents. I also specifically requested counsel to deal with the Full Court’s judgment in Lembore (supra) as well as the subsequent judgment of Wilson J in Shamore v Minister of Home Affairs and others.[6]

[10] I drew specific attention to the fact that there appears to have been no endeavour by the respective firms of attorneys to draw attention to the virtually identical nature of these cases. Where Practice Notes were filed, there is no reference to any of the other virtually identical matters initiated by the same firm of attorneys. This ought to have been done to ensure practical and expeditious resolution of such matters on an urgent basis.

URGENCY

[11] All of the cases with which I am concerned involve a deprivation of liberty. That makes them inherently urgent.

CHALLENGING DETENTION

[12] The underlying cause of action in the present cases is the interdictum de homine libero exhibendo. All of the applicants are currently detained at Lindela. The interdictum de homine libero exhibendo has a substantial pedigree in the South African common law (even in the face of concerted attempts by the apartheid regime to dilute it or indeed eliminate it altogether). In a case decided under the State of Emergency, the principle was described thus:

“The interdict de homine libero exhibendo is an institution of the common law which establishes as a right the freedom of any person from unlawful arrest, imprisonment or other bodily restraint whether by a public official, such as a member of the South African Police Force, or at the instance of any public authority, such as a Minister of State, in the exercise of their statutory powers of arrest and detention, or by anyone else, whether or not exercising statutory powers. Freedom from detention is thus one of the ordinary rights of a person. The consequence is that arrests or detention causing as it does a deprivation of personal liberty, is in itself prima facie an infringement of a right of the person detained, a wrong and an injury. The interdict requires that the detainee must be given an opportunity to ask the court for his release, and provide that the court must order his release unless the person who is detaining him shows that there is lawful cause for his detention.”[7]

[13] In the context of powers of detention under the Refugees Act and in light of section 12(1)(b) of the Constitution which guarantees the right to freedom, including the right not to be detained without trial, the Supreme Court of Appeal has stated:

“Once it is established that a person has been detained, the burden justifying the detention rests on the detaining authority. In Principal Immigration Officer and Minister of Interior v Narayansamy, Sir John Wessels stated:

‘Apart from any legislative enactment, there is an inherent right in every subject, and in every stranger in the Union, to sue out a writ of habeas corpus. This right is given not only by English law, but also by the Roman-Dutch law. Prima facie therefore every person arrested by warrant of the Minister, or by any other person, is entitled to ask the Court for his release, and this Court is bound to grant it unless there is some lawful cause for his detention.’

In English law the remedy is known as habeas corpus but in Roman-Dutch law it is referred to as the interdictum de homine libero exhibendo. Both terms are used in our law.”[8]

[14] All legal systems which purport to respect individual liberty have mechanisms for ensuring that persons are not unlawfully detained. In the absence of such protection, “the uncontrolled and arbitrary exercise of ... power might lead to serious abuses”.[9] The unlawful deprivation of liberty “is a threat to the very foundation of a society based on law and order”[10]

[15] Given the importance of the right to individual liberty, an applicant seeking release from detention need do no more than allege that he or she is being unlawfully detained by the respondent. The onus then shifts to the respondent to justify the detention.[11] Unsurprisingly, this position is now constitutionally entrenched. The Constitutional Court has put the matter thus:

“The Constitution enshrines the right to freedom and security of the person, including the right not to be deprived of freedom arbitrarily

or without just cause, as well as the founding value of freedom. Accordingly, it was sufficient in this case for the applicant simply to plead that he was unlawfully detained. This he did. The respondents then bore the burden to justify the deprivation of

liberty, whatever form it may have taken.

This is not something new in our law. It has long been firmly established in our common law that every interference with physical liberty is prima facie unlawful. Thus once the claimant establishes that an interference has occurred, the burden falls upon the person causing that interference to establish a ground of justification. In Minister van Wet en Orde v Matshoba, the Supreme Court of Appeal again affirmed that principle, and then went on to consider exactly what must be averred by an applicant complaining of unlawful detention. In the absence of any significant South African authority Grosskopf JA found that the law concerning the rei vindicatio a useful analogy. The simple averment of the plaintiff’s ownership and the fact that his or her property is held by the defendant was sufficient in such cases. This led that court to conclude that, since the common law right to personal freedom was far more fundamental than ownership, it must be sufficient for a plaintiff who is in detention simply to plead that

he or she is being held by the defendant. The onus of justifying the detention then rests on the defendant. There can be no doubt that this reasoning applies with equal, if not greater, force under the Constitution.”[12]

[16] The founding affidavits in the present applications certainly allege that each of the applicants is being detained and that they fear imminent deportation.

THE REFUGEE CONTEXT

[17] The subject of the present applications concerns the rights of refugees. In the cases before me, most of the various applicants admit to having entered South Africa unlawfully. They did so, it is alleged, in order to escape persecution in their country of origin. All of the applicants assert their entitlement to apply for refugee status.

[18] Some 17 years ago, the Constitutional Court was at pains to stress the vulnerability of refugees. It did so in Union of Refugee Women and others v Director, Private Security Industry Regulatory Authority and others.[13] The court stated:

“Refugees are unquestionably a vulnerable group in our society and their plight calls for compassion. As pointed out by the applicants, the fact that persons such as the applicants are refugees is normally due to events over which they have no control. They have been forced to flee their homes as a result of persecution, human rights violations and conflict. Very often they, or those close to them, have been victims of violence on the basis of very personal attributes such as ethnicity or religion. Added to these experiences is the further trauma associated with displacement to a foreign country.”[14]

[19] The court took the opportunity to locate the rights of refugees in the history of South Africa. It observed:

“In South Africa, the reception afforded to refugees has particular significance in the light of our history. It is worth mentioning that Hathaway lists apartheid as one of the ‘causes of flight’ which have resulted in the large numbers of refugees in Africa. During the liberation struggle many of those who now find themselves among our country’s leaders were refugees themselves, forced to seek protection from neighbouring states and abroad.”[15]

[20] Justice Sachs, concurring, spoke of the need to “send out a strong message that an irrational prejudice and hostility to non-nationals is not acceptable under any circumstances.”[16]

[21] Since these pronouncements, similar sentiments have been regularly repeated.

The comments of Cameron J in Ruta v Minister of Home Affairs[17] on behalf of a unanimous court referred to section 2 of the Refugees Act as “remarkable” and as a “powerful decree”. Section 2 of the Refugees Act provides:

“Notwithstanding any provision of this Act or any other law to the contrary, no person may be refused entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is compelled to return to or remain in a country where – (a) he or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group; or (b) his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disruption public order in either part or whole of that country.”

[22] Commenting on this provision, Justice Cameron stated:

“This is a remarkable provision. Perhaps it is unprecedented in the history of our country’s enactments. It places the prohibition it enacts above any contrary provision of the Refugees Act itself – but also places its provisions above anything in any other statute or legal provision. That is a powerful decree. Practically it does two things. It enacts a prohibition. But it also expresses a principle, that of non-refoulement, the concept that one fleeing persecution or threats to his or her life, physical safety or freedom should not be made to return to the country inflicting it.

It is a noble principle – one our country, for deep-going reasons springing from persecution of its own people, has emphatically embraced. The provenance of section 2 of the Refugees Act lies in the Universal Declaration of Human Rights (Universal Declaration), which guarantees the right to seek and to enjoy in other countries asylum from persecution. The year in which the Universal Declaration was adopted is of anguished significance to our country, for in 1948 the apartheid government came to power. Its mission was to formalise and systematise, with often vindictive cruelty, existing racial subordination, humiliation and exclusion. From then, as apartheid became more vicious and obdurate, our country began to produce a rich flood of its own refugees from persecution, impelled to take shelter in all parts of the world, but especially in other parts of Africa. That history looms tellingly over any understanding we seek to reach of the Refugees Act.

[23] The Constitutional Court’s endorsement of South Africa’s international legal obligations flowing from its accession to various treaties is of obvious significance. Recent events in South Africa have evidenced an apparently steadfast commitment by the government to honour its treaty obligations. This commitment applies to all treaty obligations, including those concerned with refugees.

[24] The Refugees Act underwent various amendments with effect from 1 January 2020. The effect of these amendments on the approach previously articulated by the Constitutional Court necessitated a fresh look by the Constitutional Court in

Abore v Minister of Home Affairs and Ano.[19] It is not necessary for purposes of the present judgment to consider the amendments to the Act in any detail (although the constitutionality

of these amendments may well be open to doubt). In Abore, the Constitutional Court held that the amendments to the Act and regulations did not render earlier judgments to be obsolete. On the contrary, the court reiterated certain principles previously laid down by Cameron J in Ruta, referred to above. The court observed:

“In a nutshell, this court in Ruta highlighted that our country adopted Art. 33 of the 1951 Convention, which guarantees the right to seek and enjoy in other countries asylum from persecution. It also clarified that Parliament decided to enforce the Convention in the country through s 2 of the Refugees Act. Section 2 captures the fundamental principle of non-refoulement. As this court reasoned, the 1951 Convention protects both what it calls ‘de facto refugees’ (those who have not yet had their refugee status confirmed under domestic law) or asylum seekers, and ‘de jure refugees’ (those whose status has been determined as refugees). The 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.”[20]

The court noted that section 2 of the Refugees Act had not been amended. It reiterated the observation of Cameron J that this provision was remarkable and unprecedented.[21]

[25] The Constitutional Court again considered the legislative amendments in Ashebo v Minister of Home Affairs and others.[22] The Court endorsed the non-refoulment principle laid down in Ruta.[23]

[26] Accordingly South Africa is under both domestic and international legal obligations to protect the rights of refugees. This does not mean that those seeking asylum in South Africa cannot be detained, if circumstances justify such detention (and ultimate deportation).

[27] In Lembore (supra), the Full Court summarised the position as follows:

“[91] Accordingly, the law may be restated as follows –

91.1 It is an offence in terms of s 9(1) and 49(1) not to enter South Africa at a port of entry and to stay in the country in contravention of the Immigration Act.

does not entitle any person to be released from detention where such person is detained for contravening the Immigration Act.

2. It is declared that in terms of Section 2 of the Refugee Act 130 of 1998, the applicant may not be deported until he has had the opportunity to show good cause as contemplated in Section 21(1B) of the Refugee Amendment Act 11 of 2017, read with regulation 8(3) thereto, and if such good cause has been shown until his application for asylum has been finally determined in terms of the Act.

3. The respondents are directed, to the extent necessary, to take all reasonable steps, within 14 days from the date of this order to afford the applicant an opportunity in terms of Section 21(1B) of the Refugee Act 130 of 1998, read with regulation 8(3) thereto, to show good cause, and to allow the whole process of any review or appeal, in the event where good cause is not established, to unfold until finally determined.

4. If good cause is shown, the respondents are directed, upon submission by the applicant of his asylum application, to accept the applicant’s asylum application and to issue him with a temporary asylum seeker permit in accordance with Section 22 of the Refugee Act to release him from detention, pending finalisation of his asylum application claim, including the exhaustion of his right of review or appeal in terms of Chapter 3 of the Refugee’s Act and the Promotion of Administrative Justice Act 3 of 2000 provided that the applicant applies for review or appeal in the periods as afforded by him in terms of Chapter 3 of the Refugee Act and the Promotion of Administrative Justice Act 3 of 2000.

5. In the event that the respondents fail to comply with paragraph 3, the applicant is entitled to approach this Court on the same papers duly supplemented to seek an order for the applicant’s immediate release.

6. Costs reserved.

BY THE COURT

REGISTRAR

(GAUTENG DIVISION, JOHANNESBURG)

ON 24 JUNE 2024

BEFORE THE HONOURABLE JUDGE MARCUS AJ

CASE NO: 2024-060965 In the application matter between: ISMAIL HOSSEN Applicant and THE MINISTER OF HOME AFFAIRS First Respondent THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS Second Respondent

HAVING read the documents filed of record, heard counsel and having considered the matter: -

1. The forms and services provided for in the Rules of this Court are dispensed with, where necessary, and this application is heard on an urgent basis in terms of Rule 6(12)(a).

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2. It is declared that in terms of Section 2 of the Refugee Act 130 of 1998, the applicant may not be deported until his asylum application has been finally determined, as contemplated in paragraph 5 below.

3. The respondents are to re-issue the applicant with a Section 22 permit and must renew same until such a time as the applicant’s

asylum application has been finally determined, as contemplated in paragraphs 5 and 6 below.

4. The respondents are to release the applicant from detention forthwith.

5. Prayers 2-3 above are to operate as an interim interdict pending the finalisation of the Judicial Review Application, which was launched under case number 2024-057667 and in the event that the outcome of the Judicial Review is to remit the asylum application back to the respondents, then until the applicant’s asylum application had been finally determined in terms of the Refugee Act 130 of 1998.

6. The interim interdict ceases to operate in the event that the applicant does not comply with the time periods for prosecuting the review as set out in Rule 53 of the Uniform Rules of Court unless an extension is agreed to between the parties or granted by the Court.

7. The first and second respondents are to pay the costs of this application, including the costs of 18 June 2024, on an unopposed

party and party scale,jointly and severally, the one paying the other to be absolved.

CASE NO: 2024-063989 In the application matter between: ROSELINE KAITOO Applicant and THE MINISTER OF HOME AFFAIRS First Respondent THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS Second Respondent

ORDER

2. It is declared that in terms of Section 2 of the Refugee Act 130 of 1998, the applicant may not be deported until she has had the opportunity to show good cause as contemplated in Section 21(1B) of the Refugee Amendment Act 11 of 2017, read with regulation 8(3) thereto, and if such good cause has been shown until her application for asylum has been finally determined in terms of the Act.

4. If good cause is shown, the respondents are directed, upon submission by the applicant of her asylum application, to accept the applicant’s asylum application and to issue her with a temporary asylum seeker permit in accordance with Section 22 of the Refugee Act to release her from detention, pending finalisation of her asylum application claim, including the exhaustion of her right of review or appeal in terms of Chapter 3 of the Refugee’s Act and the Promotion of Administrative Justice Act 3 of 2000 provided that the applicant applies for review or appeal in the periods as afforded by her in terms of Chapter 3 of the Refugee Act and the Promotion of Administrative Justice Act 3 of 2000.

Case No: 2024/065461 In the matter between: ABDULLAH NAZIR ZENE LINDELA PRISON NUMBER 202405080002 APPLICANT and THE MINISTER OF HOME AFFAIRS 1st RESPONDENT THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS 2nd RESPONDENT LINDELA HOLDING FACILITIES 3rd RESPONDENT

HAVING heard from Counsel, and having read the documents;

IT IS ORDERED BY AGREEMENT BETWEEN PARTIES: -

1. Applicant's non-compliance with the Rules relating to service and periods and dealing with this matter as one of urgency in terms of Rule 6(12) of the Uniform Rules of Court is condoned;

2. The Respondents are interdicted from deporting the Applicant from the Republic until he has exhausted the remedies available to him under the Refugees Act 130 of 1998;

3. The First and Second Respondents are directed to afford the applicant the opportunity within 14 court days to show good cause in terms of Section 21

(1)(b) of the Refugees Act 130 of 1998;

4. The Respondents are ordered to pay the costs of the application on a party-and party scale.

CASE NO. 2024-064849 In the matter between: ABRAHAM TSONGA APPLICANT AND THE MINISTER OF HOME AFFAIRS 1ST RESPONDENT THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS 2ND RESPONDENT

2. It is declared that in terms of Section 2 of the Refugee Act 130 of 1998, the applicant may not be deported until he has had the opportunity to show good cause as contemplated in Section 21(1B) of the Refugee Amendment Act 11 of 2017, read with regulation 8(3) thereto, and if such good cause has been shown until his application for asylum has been finally determined in terms of the Act.

CASE NO. 2024/065465 In the application matter between: ADEOLA OLUSOYA LINDELA PRISON NUMBER 202405020157 APPLICANT and THE MINISTER OF HOME AFFAIRS 1st RESPONDENT THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS 2nd RESPONDENT LINDELA HOLDING FACILITIES 3rd RESPONDENT

IT IS ORDERED THAT: -

The matter is removed from the roll

IN THE HIGH COURT OF SOUTH AFRICA

CASE NO. 2024-064198 In the matter between: CHAMISA KASA APPLICANT and THE MINISTER OF HOME AFFAIRS 1ST RESPONDENT THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS 2ND RESPONDENT

CASE NO. 2024-065475 In the matter between: EVANS KELECHI NJOKU LINDELA PRISON NUMBER 202405310092 APPLICANT and THE MINISTER OF HOME AFFAIRS 1st RESPONDENT THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS 2nd RESPONDENT LINDELA HOLDING FACILITIES 3rd RESPONDENT

3. The First and Second Respondents are directed to afford the applicant the opportunity within 15 court days to show good cause in terms of Section 21 (1)(b) of the Refugees Act 130 of 1998;

4. The Respondents are ordered to pay the costs of the application on a party- and – party scale.

CASE NO. 2024-064194 In the application matter between: MULIGETA BAKALA APPLICANT and THE MINISTER OF HOME AFFAIRS 1ST RESPONDENT THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS 2ND RESPONDENT

BY AGREEMENT between the parties, the following order is made:-

1. The forms and service provided for in the Rules of this Court are dispensed with where necessary, and this application is heard on urgent basis in terms of Rule 6 (12) (a);

2. The Respondents are directed to take all reasonable steps necessary within 14 days of granting of this order to afford the Applicant an opportunity in terms of section 21(1b) of the Refugees Act 130 of 1998, read with regulation 8 thereto to show good cause;

3. The Respondents are interdicted and restrained from deporting the Applicant until such time that the Applicant status in the Republic of South Africa has been fully and finally determined in terms of the Refugees Act 130 of 1998 and until such time that the Applicant has fully exhausted his review or appeal process in terms of chapter 4 of the Refugees Act and the Promotion of Administrative Justice Act 3 of 2000;

4. In the event the Respondents fails to comply with paragraph 2 of the order above the Applicant is to be released from detention forthwith;

5. If good cause is shown the Respondents are directed, upon submission by the applicant of his asylum application, to accept the Applicant asylum seeker application and to issue him with a temporary asylum seeker permit in accordance with section 22 of the Refugee Act, and release the Applicant from detention forthwith;

6. The First and Second Respondents are directed to pay the costs of this Application jointly and severally, on a party and party one paying the other to be absolved.

CASE NO. 2024-064192 In the application matter between: TAKLE AYELLE APPLICANT and THE MINISTER OF HOME AFFAIRS 1ST RESPONDENT THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS 2ND RESPONDENT

58

CASE NO. 2024-064846 In the matter between: YOSEF EROMO SOMANO APPLICANT and THE MINISTER OF HOME AFFAIRS 1ST RESPONDENT THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS 2ND RESPONDENT

HAVING read the documents filed of record, heard counsel for the parties and

having considered the matter, the following order is made:-

2. The Respondents are directed to release the Applicant from detention forthwith;

3. The Respondents are interdicted and restrained from deporting the Applicant until such time that the Applicant’s status in the Republic of South Africa has been fully and finally determined in terms of the Refugees Act 130 of 1998 and until such time that the Applicant has fully exhausted his review or appeal process in terms of chapter 4 of the Refugees Act and the Promotion of Administrative Justice Act 3 of 2000;

4. The Respondents are directed to re-issue the Applicant asylum seeker permit bearing file number DBNETH0000540413 in terms of section 22 of the Refugee Act 130 of 1998 within 5 days of service of this order upon them;

5. The First and Second Respondents are directed to pay the costs of this Application jointly and severally, on a party and party one paying the other to be absolved.

[1] 2009 (5) SA 105 (D).

[2] At para 2.

[3] At para 8.

[4] At para 14.

[5] [2024] 2 All SA 113 (GJ).

6] [2024] ZAGPJHC 414 (2 May 2024).

[7] Swart v Minister of Law and Order 1987 (4) SA 452 (C) at 455 F-H, per Rose-Innes J.

[8] Arse v Minister of Home Affairs and others 2012 (4) SA 544 (SCA) at para 5.

[9] Per Bale J in In re: Cakijana and Tobela [1927] LKCA 15; (1908) 29 NLR 193 at 202.

[10] Per Rumpff CJ in Wood v Ondangwa Tribal Authority 1975 (2) SA 294 (A) at 310G.

[11] Minister van Wet en Orde v Matshoba 1990 (1) SA 280 (A) at 286C.

[12] Zealand v Minister of Justice and Constitutional Development and Ano [2008] ZACC 3; 2008 (4) SA 458 (CC) at paras 24 – 25.

[13] 2007 (4) SA 395 (CC).

[14] At para 28.

[15] At para 30.

[16] 2019 (2) SA 329 (CC).

[17] 2019 (2) SA 329 (CC).

[18] At paras 24 – 26.

[19] 2022 (2) SA 321 (CC).

[20] At para 42.

[21] At para 44.

[22] 2023 (5) SA 382 (CC).

[23] At paras 29 – 32.15

[24]Mlungwana v S 2019 (1) BCLR 88 (CC) at para 42.

[25] Glenister v President of the Republic of South Africa and others 2011 (3) SA 347 (CC) at para 102 (minority) read with paras 77, 178 and 189 (majority).

[26] Van der Merwe and Ano v Taylor 2008 (1) SA 1 (CC) at paras 71 – 72; Public Protector v South African Reserve Bank 2019 (6) SA 253 (CC) at para 151.

[27] 2014 (3) SA 481 (CC).

[28] At para 82.

[29] Justice Theron – 30 March 2023, “Visit to Lindela Repatriation Centre, Krugersdorp”.

[30] Irankunda and Ano v Director of Asylum Seeker Management : Department of Home Affairs and others [2024] ZASCA 87 (June 2024) at para 65. [31] Irankunda, supra at para 71

[30] Irankunda and Ano v Director of Asylum Seeker Management : Department of Home Affairs and others [2024] ZASCA 87 (June 2024) at para 65.

[31] Irankunda, supra at para 71