Bula and Others v Minister of Home Affairs and Others (589/11) [2011] ZASCA 209; [2012] 2 All SA 1 (SCA); 2012 (4) SA 560 (SCA) (29 November 2011)

Bula and Others v Minister of Home Affairs and Others (589/11) [2011] ZASCA 209; [2012] 2 All SA 1 (SCA); 2012 (4) SA 560 (SCA) (29 November 2011)

The Supreme Court of Appeal held that once the appellants, through their attorneys, indicated an intention to apply for asylum, they became entitled to the protections of the Refugees Act and its regulations. The Department of Home Affairs was obliged to issue them with temporary permits and allow them to apply for asylum. The High Court erred in interrogating the bona fides of the asylum claims at the outset and in failing to apply the statutory scheme, which vests the determination of refugee status in the Refugee Status Determination Officer, not the court. The procedural conduct of the High Court was fundamentally flawed, breaching principles of legality and procedural fairness. The...

Citation
[2011] ZASCA 209
Parties
Appellant: Yene Woldemeskel Bula; Appellant: Teketel Bambore Lamore; Appellant: Mesele Elilo Kabeto; Appellant: Terefe Mundino Andiso; Appellant: Qadre Ereso Abe; Appellant: Alemayehu Ashebo Arufu; Appellant: Mitiku Mantese Basore; Appellant: Temesgen Kareso Maga; Appellant: Daneli Genchubo Wolde; Appellant: Addise Dutoro Gaguro; Appellant: Desta Yohannes Sawo; Appellant: Tessema Messele Hanicha; Appellant: Belayenhe Serato Bulade; Appellant: Sheno Bute Shobe; Appellant: Melese Awono Arificho; Appellant: Elias Erekobo Erago; Appellant: Ali Abdulraman Ahmed; Appellant: Charente Yohannes Tumate; Appellant: Eshetu Gebremedhin Eromo; Respondent: Minister of Home Affairs; Respondent: Director-General Department of Home Affairs; Respondent: Bososa (Pty) Ltd t/a Prospects Trading
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 November 2011
Case Number
589/11
Procedural Posture
Civil Appeal / Appeal From South Gauteng High Court (johannesburg)
Outcome
Appeal upheld with costs, including costs of two counsel. High Court order set aside and replaced with interdicts and declaratory relief in favour of the appellants.
Judges
Navsa, Cloete, Maya, Bosielo, Leach
Legal Topics
Refugees Act, Principle of Legality, Non Refoulement, Detention of Foreigners, Procedural Fairness
Administrative Law Constitutional Law Refugees Act Principle of Legality Non Refoulement Detention of Foreigners Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Yene Woldemeskel Bula

Appellant

Teketel Bambore Lamore

Appellant

Mesele Elilo Kabeto

Appellant

Terefe Mundino Andiso

Appellant

Qadre Ereso Abe

Appellant

Alemayehu Ashebo Arufu

Appellant

Mitiku Mantese Basore

Appellant

Temesgen Kareso Maga

Appellant

Daneli Genchubo Wolde

Appellant

Addise Dutoro Gaguro

Appellant

Desta Yohannes Sawo

Appellant

Tessema Messele Hanicha

Appellant

Belayenhe Serato Bulade

Appellant

Sheno Bute Shobe

Appellant

Melese Awono Arificho

Appellant

Elias Erekobo Erago

Appellant

Ali Abdulraman Ahmed

Appellant

Charente Yohannes Tumate

Appellant

Eshetu Gebremedhin Eromo

Appellant

Minister of Home Affairs

Respondent

Director-General Department of Home Affairs

Respondent

Bososa (Pty) Ltd t/a Prospects Trading

Respondent

Procedural Posture

Civil Appeal / Appeal From South Gauteng High Court (johannesburg)

Legal Issues

  1. 1 Whether the appellants, as asylum seekers, were entitled to protection under the Refugees Act once they indicated an intention to apply for asylum.
  2. 2 Whether the detention and threatened deportation of the appellants was lawful under South African and international law.
  3. 3 Whether the procedural conduct of the High Court and the Department of Home Affairs complied with the principle of legality and procedural fairness.

Ratio Decidendi

The Supreme Court of Appeal held that once the appellants, through their attorneys, indicated an intention to apply for asylum, they became entitled to the protections of the Refugees Act and its regulations. The Department of Home Affairs was obliged to issue them with temporary permits and allow them to apply for asylum. The High Court erred in interrogating the bona fides of the asylum claims at the outset and in failing to apply the statutory scheme, which vests the determination of refugee status in the Refugee Status Determination Officer, not the court. The procedural conduct of the High Court was fundamentally flawed, breaching principles of legality and procedural fairness. The...

Court Disposition

Appeal upheld with costs, including costs of two counsel. High Court order set aside and replaced with interdicts and declaratory relief in favour of the appellants.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the High Court is set aside and replaced with the following: