Boamah v Minister of Home Affairs and Others (2024/068962) [2024] ZAGPJHC 694 (22 July 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

1. REPORTABLE: NO

2. OF INTEREST TO OTHER JUDGES: NO

3.REVISED: No

22 July 2024

Case No.:2024-068962

In the matter between:

ASOMANI DAVID BOAMAH

APPLICANT

And

THE MINISTER OF HOME AFFAIRS

FIRST RESPONDENT

THE DIRECTOR GENERAL,

DEPARTMENT OF HOME AFFAIRS

SECOND RESPONDENT

AND

Case no: 2024/070763

IKE GOODLUCK

(Asylum file ref no: JHBNGA000521010)

APPLICANT

and

THE MINISTER OF HOME AFFAIRS

FIRST RESPONDENT

DIRECTOR GENERAL OF HOME AFFAIRS SECOND RESPONDENT

DEPUTY DIRECTOR GENERAL OF IMMIGRATION

DEPARTMENT OF HOME AFFAIRS

THIRD RESPONDENT

THE CHIEF DIRECTOR OF DEPORTATION

DEPARTMENT OF HOME AFFAIRS

FOURTH RESPONDENT

THE CHAIRPERSON: STANDING COMMITTEE

FOR REFUGES AFFAIRS (SCRA)

FIFTH RESPONDENT

THE CHIEF MAGISTRATE OF THE DISTRICT COURT

BOKSBURG MAGISTRATE’S COURT

SIXTH RESPONDENT

THE HEAD OF NATIONAL PROSECUTING AUTHORITY

PRETORIA HEAD OFFICE (NPA)

SEVENTH RESPONDENT

THE SENIOR PUBLIC PROSECUTOR

BOKSBURG MAGISTRATES COURT (SPP) EIGHTH RESPONDENT

THE ACTING DISTRICT COURT CONTROL PROSECUTOR

BOKSBURG MAGISTRATES COURT

NINTH RESPONDENT

THE HEAD OF PRISON MORDERBEE PRISON TENTH RESPONDENT

Summary: Lawfulness of detention and/or deportation of asylum seekers in instances where such persons previously held valid temporary permits. Lawful detention per Ashebo v Minister of Home Affairs and Others differentiated from cases where temporary permit can be renewed and where judicial review of refusal still pending.

JUDGMENT

K STRYDOM, AJ

General principles:

1. Both the applicants, Mr Goodlock (“Goodlock”) and Mr Boamah (“Boamah”), have brought urgent applications for interdicts against the various respondents for their release from detention, as well as, inter alia, prohibiting their deportation from the Republic of South Africa.

2. With regards to deportation, in terms of Section 27A of the Refugees Act, 130 of 1998 an asylum seeker is entitled to a formal written recognition as an asylum seeker in the prescribed form, pending finalisation of his or her application for asylum. An asylum seeker is further entitled to remain in the Republic pending the finalisation of his or her application for asylum. “Finalisation” includes “all available remedies, including appeals and judicial review” and, if valid grounds exist (such as “sur place”), any application made subsequent to a dismissal of the initial application.[1]

3. In this regard, any contentions that by virtue of their conduct and failure to regularise their visas timeously by availing themselves of the remedies afforded, the Applicants have ‘abandoned’ their rights in terms of the principle of non-refoulement, have been dealt a decisive blow by the Constitutional Court in the case of Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others. There the Constitutional Court, in holding that subsections 22(12) and 22(13) of the Refugees Act (which entailed an automatic abandonment of rights in cases of failure to renew visas) inconsistent with the Constitution and invalid, stated that:

“[46] The short answer to these assertions is that they cannot justify the automatic abandonment of an asylum application, simply because of a failure to renew a visa. As stated, the consequence of the impugned subsections is that the merits of a claim for asylum are never considered, and the principle of non-refoulement is violated. In any event, the respondents wrongly assume that most asylum seekers have no valid claims to asylum and no interest in pursuing those claims. This assumption violates the core principle of refugee law that asylum seekers must be treated as presumptive refugees until the merits of their claim have been finally determined through a proper process.”

4. It is therefore clear that, until finalisation of an application for asylum, deportation is prohibited.

5. The lawfulness of detention of prospective asylum seekers in terms of the Immigration Act, however, is not as straightforward.

6. In terms of Section 21(4) of the Refugee’s Act:

“Notwithstanding any law to the contrary, no proceedings may be instituted or continued against any person in respect of his or her unlawful entry into or presence within the Republic if—

(a) such person has applied for asylum in terms of subsection (1), until a decision has been made on the application and, where applicable, such application has been reviewed in terms of section 24A or where the applicant exercised his or her right to appeal in terms of section 24B; or

(b) such person has been granted asylum.”

7. From the outset it is important to note that in both the present applications, the Applicants are asserting that they have already applied for asylum and have both previously been granted temporary asylum seeker permits in terms of Section 22 of the Refugees Act. Boamah allegedly failed to apply for a renewal of this visa, whilst in Goodluck’s case, his asylum application had been refused and

was, according to him, subject to judicial review.

8. These facts distinguish the present applications from those premised on a person’s expression of an intent to apply for asylum, such as in Ashebo v Minister of Home Affairs and Others.[2] In Ashebo, the Constitutional Court confirmed the lawfulness of detention in cases where a prospective asylum seeker has failed to apply an asylum transit visa or has entered the country illegally or failed to report to a RRO within five days. It held that:

“[59] To sum up, the applicant is entitled to an opportunity to be interviewed by an immigration officer to ascertain whether there are valid reasons why he is not in possession of an asylum transit visa. And he must, prior to being permitted to apply for asylum, show good cause for his illegal entry and stay in the country, as contemplated

in the above provisions. Once he passes that hurdle and an application for asylum is lodged, the entitlements and protections

provided in sections 22 and 21(4) of the Refugees Act – being issued with an asylum seeker permit that will allow him to remain in the country, without delay, and being shielded from proceedings in respect of his unlawful entry into and presence in the country until his application is finally determined – will be available to him.” [Underlining my own]

9. In Lembore and Others v Minister of Home Affairs and Others,[3] the Full Court of this division reiterated that:

“[68] Ashebo has put this issue beyond doubt that the detention of illegal foreigners in terms of the amendments is not unlawful and remains so until good cause has been shown leading to the triggering of the Refugees Act>.” [Underlining my own]

10. In the subsequent leave to appeal judgment,[4] the Full Court contextualised the lawfulness of detention of asylum seekers:

“[9] ….. The judgment dealt with persons who had not yet shown good cause. In any event, it bears repeating that neither persons who have not shown good cause, nor de-jure or de-facto refugees can be deported after intimating their intention to apply for asylum, or once being granted asylum as in the case of de-facto refugees. However, unlike de-jure and de-facto refugees, for those who have not shown good cause, as the main judgment went to great lengths to explain, there is no protection from detention arising from a contravention of section 49(1) of the Immigration Act.” [Underlining my own]

11. As a general principle, the reliance on Ashebo by the Respondents in casu to justify the continued detention of the applicants at Lindela is accordingly misplaced. Ashebo, as read with Lebore, is in fact authority for the converse: de-jure and de-facto refugees are protected from detention arising from a contravention of section 49(1) of the Immigration Act. Where applications for asylum have already been made, the protections contained in S22 and S21(4) of the Refugee’s Act have already been “triggered”.

Boamah v The Minister of Home Affairs and others Case no: 2024-068962

Background

12. The applicant alleges that he fled Ghana and upon his arrival in the Republic around 2019, he applied for asylum, and was issued with an asylum seeker permit bearing file number PTAGH00024021. He only renewed the said asylum seeker permit once, around 2020. He was unable to renew his asylum seeker permit due to the covid-19 outbreak. When the Refugee Reception centre re-opened around 2023, he approached the Refugee Reception centre situated in Pretoria, in order to renew the permit, however on each occasion that he had been to the centre he was turned back at the gate without being assisted and advised that access to the centre is through appointment only.

13. In his founding affidavit he further states that:

“I was arrested in Tembisa on the 22nd of February 2024, in Gauteng Province and charged and detained for contravention of the immigration laws of the Republic, notwithstanding the fact that I informed the arresting officers that I am an asylum seeker in the Republic who is in possession of an asylum seeker permit which has expired and I could not renew it due to no fault of my own, and I requested that I be afforded an opportunity to renew same, however my pleas were ignored and I was finally detained Lindela on the 13 of June 2024 for the purpose of deportation.”

14. The Respondents have provided further clarity regarding what happened after the arrest of the Applicant:

14.1. The Applicant was sentenced and convicted by the Madadeni Magistrate court on 24 April 2024. The learned magistrate ordered that he was: “Sentenced to undergo 3 (three) months direct imprisonment. Ito Section 34 of the Immigration Act 13/2002 it is ordered that the accused be deported before the expiry of his sentence.”

14.2. His sentence therefore runs until 23 of July 2024.

14.3. Having served a portion of his sentence, on the 20th of May 2024, he was placed under the correctional supervision (“parole”) of the Department of Home Affairs pending deportation. He is currently being held at Lindela detention facility in Krugersdorp pending such deportation

15. The Respondents assert that the matter, having been brought on severely trunctuated timeframes, is not urgent. According to this argument, as the Applicant’s sentence runs until the 24th of July 2024, the risk of deportation was not imminent enough to justify the degree of urgency upon which the application was brought.

The problem with this assertion lies in the fact that the Magistrate’s order pertinently indicated that he is to be deported before the end of his sentence. To my mind, whether correct or not, the implication of such an order is sufficient to reasonably apprehend the imminence of harm.

16. They have also, as a point in limine, raised the non-joinder of the Minister of Correctional Services, in view of the fact that the Applicant is currently still subject to correctional supervision. In view of my finding, I do not intend to deal with this objection.

17. In their unsigned answering affidavit (to which the Applicant has replicated), the Respondents had admitted that the Applicant was the holder of an expires temporary asylum permit. However, their signed affidavit, filed later, includes a new paragraph in terms of which the authenticity of the asylum seeker permit attached to the Applicant’s founding papers is challenged. They assert that the asylum seeker permit bearing file number PTAGH00024021 was issued to another person. As proof, a screenshot or photo of a screen is attached showing that the permit was issued to a certain Boateng as far back as at least 2014.

18. In his supplementary submissions, counsel for the Applicant drew the Court’s attention to the fact that the screenshot attached by the Respondents in fact relates to a permit with file number PTAGHA00024021. Upon personal perusal of the two documents, I am satisfied that the screenshot attached to the answering affidavit, relates to a different file. Accordingly, the assertion of fraud made by the Respondents is blatantly incorrect and stands to be disregarded.

19. As discussed supra, as the Respondent is the holder of an (expired) temporary asylum permit, the protections of Sections 21(4) and 22 of the Refugee’s Act would apply and he would be eligible to be released from Lindela and the issuance of a Section 22 asylum permit. However, the fact that he has already been convicted in terms of the Immigration Act and is currently still serving his sentence in that regard, complicates matters somewhat.

20. The Respondents are detaining the Applicant pursuant to the order of the Magistrates’ Court, which order is binding until set aside. However, this Court has not been asked to sit as a Court of review or appeal (as the case may be) for purposes of setting aside the conviction and sentencing in this regard. Furthermore, the non-joinder of the Minister of Correction (per the respondents’ point in limine) as well as the non-joinder of other interested parties such as the NPA and the Magistrate, in any event would have barred this Court from deciding the issue. As such, despite the fact that the detention is unlawful by virtue of the provisions of the Refugee’s Act, this Court cannot order the Respondents to contravene a binding order of the Magistrate’s Court.

21. I further agree with counsel for the Respondents that the Applicant’s papers are far from satisfactory. The founding affidavit failed to provide full details relating to the arrest and conviction. The Applicant, for instance, insists that he was arrested in Tembisa, Gauteng, but fails to explain why he was then brought before a Magistrate in KwaZulu Natal. Most importantly however, despite it being pointed out that there is a binding court order for his detention, the Applicant proffered no argument as to how the Respondents are to disregard such an order. Instead, it pinned its entire case to the mast of the provisions of S21(4) of the Refugee’s act. During argument it was submitted that the Respondents should have released the Applicant back into the custody of the Department of Correction for the determination of other correctional supervision. That might be so, but, having failed to join the Minister of Correction to these proceedings, I decline to make any finding in this regard.

22. Under the circumstances, the Applicant must stand and fall with his stated case. The order I intend to make herein should not be construed to imply that any of the Applicant’s legal remedies of review or appeal (relating to the criminal conviction and sentencing) are determined. The order is simply put, the only order the Applicant has left this Court with.

23. As to the issue of costs, I am not inclined to grant any cost order. The Respondents, acting pursuant to a valid Court order, that the Applicant did not challenge, could not have released the Applicant from detention even had they agreed that by virtue of Section 21(4) of the Refugee’s Act, they had no grounds for detaining him. On the other hand the application was essential to the Applicant in the protection of his Constitutional rights, as well as his rights under the principle of non refoulement.

ORDER

24. I accordingly order as follows:

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 release the Applicant from detention at Lindela Repatriation centre under file number 202406130120, once the impediment to such release created by the order for conviction and sentencing of the Magistrate Madadeni Magistrate Court on the 24th of April 2024, ceases to exist; alternatively on the 24th of July 2024; whichever event occurs the earliest.

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 Act of 2000;

4. The Respondents are directed to re-issue the Applicant asylum seeker permit bearing file number PTAGH00024021 in terms of section 22 of the Refugee Act 130 of 1998 within 5 days of service of this order upon them;

Ike Goodluck v Minister of Home Affairs and other - Case no: 2024/070763

25. By contrast, in the Goodluck matter, the Applicant has applied for relief terms of the Refugee’s Act against the first to fifth Respondents (“Home Affairs”), as well as relief aimed at the criminal proceedings instituted against him pursuant to the Immigration Act against the sixth to tenth Respondents (“NPA”).

26. Initially the notice of motion was couched as an interim interdict pending the outcome of judicial review proceedings to have the decision to deny the Applicants application for asylum set aside. In broad strokes, the following was sought:

26.1. Against the NPA:

- Reviewing and setting aside the decision/outcome of the representation rendered by an Acting District Court Control Prosecutor; Ms. Maria Fyff, dated 26 June 2021;

- Declaring the decision to be inconsistent with the Refugee Act 130 of l998, the Immigration Act 13 of 2002, the provision of Promotion of Administrative Justice Act and the Constitution of the Republic of South Africa, 1996;

- That the Applicant immediately be released from detention at Modderbee Prison

26.2. Against Home Affairs:

- Permitting the Applicant to bring the present application without exhausting any further applicable internal remedies as may be found to exist under section 8 of the Immigration Act;

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48. It is beyond the scope of this judgment to make a finding on whether or not the applicant had or should have exhausted the internal remedies provided for in Sections 24A or 24B. The Court tasked with deciding any judicial review will make a determination in this regard. As stated supra, the only present considerations are whether the protections of the Refugee’s Act have been triggered.

49. In this regard, the Supreme Court of Appeal, in Irankunda[6] recently held as follows:

[76] Therefore, the suggestion that one can without more, submit one application after the other when the previous one has been finally determined, is not what the Refugees Act contemplates. For such applicants, the period between the final rejection of their asylum and their departure, is regulated by the Immigration Act. Without any permit to remain in the country, such applicants are regarded as illegal foreigners as defined in the Immigration Act. Section 32 of the Immigration Act provides that ‘any illegal foreigner shall depart unless authorised by the Department to remain in the Republic’.

[77] Thus, a failed asylum applicant can only remain in the country on either of the following bases: (a) that the final determination of their asylum application is pending; (b) that he or she has authorisation by the Department to remain in the country; or (c) that there is some other lawful basis to remain in the country. This is the essence of the rule of law – a foundational value of our Constitution.

[78] Applied to the present case, one should bear in mind the following. The appellants have neither applied to review the decisions to reject their initial asylum applications nor do they have authorisation from the Department to remain in the country. Ordinarily, that rendered them illegal foreigners under the Immigration Act, as they had no legal basis to remain in the country.

50. “Review” in this context references internal review per S 24A or S24B. Although Inyankunda dealt with the situation where new asylum applications were brought on the basis of a change in the circumstances in the applicants’ home countries (“sur place”), the following caution expressed by the SCA against abuse, is appropriate in the present circumstances:

[82] These conclusions must be understood to be subject to some cautionary observations. First, a sur place claim is not validly made by reformulating a claim that has already been finally determined. Second, a sur place claim must set out a proper evidential basis for the claim. What circumstances have changed, the evidence of that change, and their

specific consequences for the applicant must be set out in the application. Absent this content, an application may be summarily

rejected. Third, there is much scope for abuse, in which sur place claims are made, sometimes on a repeated basis, without proper foundation, to extend protections for lengthy periods of time. This should not be tolerated. And the Department should develop expedited procedures to bring to finality sur place claims that facially have no basis.

51. Having regard to this pronouncement, the position seems to be that the Applicant would be regarded as an illegal foreigner and be dealt with in terms of the Immigration Act, until such time as he has filed an application for judicial review. The mere expression of intention to file such an application would not trigger the provisions of the Refugee’s Act. To a certain extent, this tallies with the reasoning in cases such as Ashebo and Lebore: an asylum seekers’ expression of an intention to avail himself of the protections afforded him under the Refugee’s Act, does not automatically entitle him to such protection. As opposed to cases where Home Affairs has not completed the asylum process (as in for instance Boamah supra), here the Applicant’s status has already been finally determined. Some form of action is required that would bring him within the framework of the Refugees Act.

53. Furthermore, whilst it is accepted that such proceedings were launched in 2018 in the Pretoria High Court, the filing of the second 2021 review application, coupled with the failure to definitively indicate the status of the 2018 application, places into question whether the 2018 judicial review application is still extant.

54. On a conspectus of the admitted facts before me, I therefore cannot find that the Applicant has brought a judicial review application. Until the existence of such an application has been conclusively established (by proving service thereof on the Respondents) or, alternatively, until an application for review in terms of Section 24 (5)(b) (if applicable) of the Refugee’s Act or an application for judicial review is brought, the Applicant remains an illegal

immigrant and subject to criminal proceedings per the Immigration Act.

“The Applicant is ordered to set down the review application under case number 2021/26198 within five(5) months from the date of serving the application on the First to Fifth Respondent, failing which the applicant shall ipso facto be barred from relying on "pending review" should he be detained for contravening any provision of the Immigration laws in future.”

56. At the request of this court, the respondents have also uploaded an alternative draft order (in the event that the application is not dismissed), containing a similar provision.

57. I am of the view that such an order would not be contrary to the findings in Scalabrini supra. Whereas, in Scalabrini, the assumed abandonment of a right to judicial processes was unilaterally imposed on immigrants, in casu, the deemed abandonment is proposed and agreed to by the applicant himself.

58. In the second to fourth paragraphs of their joint alternative draft order, the respondents have proposed that the order should read:

“2. The detention and continued detention of the Applicant, is declared lawful.

3. The Applicant must be immediately released from the Tenth Respondent's correctional detention facility.

4. The Applicant is ordered to attend his next court hearing on 11 July 2024 and all other subsequent dates if any, before Sixth Respondent in order for this order to be given effect to by the Sixth Respondent.”

59. As already discussed, the question of lawfulness of detention is dependent on the existence of the application for judicial review. The order made will therefore, save for the aforementioned paragraphs, by and large, reflect the wording of the alternative

draft of the Respondents.

Costs

60. In view of the uncertainties regarding the status of the judicial review application – upon which the application hinged – I am disinclined to award costs to either party.

Order

61. As a result, the following order is made:

1. It is declared that the Applicant’s detention remains lawful until service of the review application (notice of motion & founding affidavit) under case number 21/26198, alternatively a new review application, on the First to Fifth Respondent and Seventh to Ninth Respondent and State Attorney.

2. Once service per paragraph 1 hereof has taken place, the continued detention of the Applicant shall be unlawful by virtue of the provisions of S24(1) of the Refugees Act 130 of 1998 and the Applicant shall be entitled to be immediately released from the Tenth Respondent's correctional detention facility.

3. Once service per paragraph 1 hereof has taken place, the seventh to ninth Respondents shall review the decision to continue criminal proceedings against the Applicant having due regard to s 21(4)(a) of the Refugees Act which bars the institution of any criminal proceedings for the contravention of s 49(1)(a) of the Immigration Act 13 of 2002 and inform the Applicant of the decision in this regard within 30 days.

4. 5. The First to Fifth Respondent are directed to re-issue the Applicant a temporary asylum seeker permit bearing file number JHBNGA000521010 within 10 days of service per paragraph 1 hereof, which permit must be served by the Applicant on the Seventh to Ninth Respondents and on the Office of the State Attorney by hand and email, for the attention of the State Attorney Ms. Zeenat Sahib (ZSahib@justice.gov.za) and Jonathan Selamolela (JoSelamolela@justice.gov.za)

5. The Respondents are interdicted and restrained from deporting the Applicant until such time the Applicant has fully exhausted his review or appeal process in terms of chapter 4 of the Refugees Act 130 of 1998 and/or the finalisation of judicial review proceedings contemplated in paragraph 1 hereof.

6. The applicant is ordered to set down the review application served per paragraph 1 hereof within five(5) months from the date of serving the application on the First to Fifth Respondent, failing which the applicant shall ipso facto be barred from relying on such pending review proceedings to invoke the provisions of the Refugees Act, 130 of 1998, should he be arrested and detained for contravening any provision of the law after the lapse of said five month period.

K STRYDOM

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

Judgment reserved: 05 July 2024

Judgement delivered: 22 July 2024

Appearances in case number 2024-068962

Applicant’s Legal representatives: Counsel Adv P Maluleke Adv A M Mafanele Instructed by: Maladzhi and Sibuyi Attorneys Respondent’s Legal representatives: Counsel Adv Nomkhosi Instructed by: The State Attorney (Ms Sahib Zeenat) Appearances in case number 2024/070763 Applicant’s Legal representatives: Counsel Adv A M Mafanele Instructed by: Tandoh Desmond Attorneys Respondent’s Legal representatives: Counsel for 1st -5th Respondents: Adv V J Chabane Counsel for 7th - 9th Respondents: Adv P Jara Instructed by: The State Attorney (Ms Sahib Zeenat)

[1] Irankunda and Ano v Director of Asylum Seeker Management : Department of Home Affairs and others [2024] ZASCA 87 (June 2024) at paras 65 and 71

[2] Ashebo v Minister of Home Affairs and Others (CCT 250/22) [2023] ZACC 16; 2023 (5) SA 382 (CC); 2024 (2) BCLR 217 (CC) (12 June 2023) (“Ashebo”)

[3] Judgment handed down on 8 February 2024, Gauteng Division (2023-097427, 2023-097292; 2023-097111; 2023-097076; 2023-100081; 2023-100526).

[4] Lembore and Others v Minister Of Home Affairs And Others (2023/097427) [2024] ZAGPJHC 502 (21 May 2024)

[5] National Director of Public Prosecutions and Others v Freedom Under Law (67/2014) [2014] ZASCA 58; 2014 (4) SA 298 (SCA); 2014 (2) SACR 107 (SCA); [2014] 4 All SA 147 (SCA) (17 April 2014) at para 29

[6] Irankunda and Another v Director of Asylum Seeker Management: Department of Home Affairs and Others (821/2022) [2024] ZASCA 87 (5 June 2024)