Mafadi and Another v The Minister of Home Affairs and Another (27878/2021) [2021] ZAGPJHC 141 (6 July 2021)

Mafadi and Another v The Minister of Home Affairs and Another (27878/2021) [2021] ZAGPJHC 141 (6 July 2021)

The High Court found that the applicants' detention and impending deportation were unlawful as they had not been afforded a genuine opportunity to apply for asylum, nor had they validly waived their constitutional and international rights. The purported waiver was not informed or voluntary, lacking legal representation and interpretation. The Refugees Act and international conventions require that asylum seekers be protected from refoulement until their claims are properly adjudicated. The closure of refugee reception offices due to the pandemic rendered compliance with amended procedures impossible, but did not extinguish the right to seek asylum. The Magistrate's deportation order does...

Citation
[2021] ZAGPJHC 141
Parties
Applicant: Mafadi Herbert; Applicant: Musana Luzake; Respondent: The Minister of Home Affairs; Respondent: The Director General, Department of Home Affairs
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
6 July 2021
Case Number
27878/2021
Procedural Posture
Urgent Application / High Court Application for Urgent Interdict and Release Pending Asylum Process
Outcome
Application granted. The applicants are to be released from Lindela Detention Centre and are entitled to remain in South Africa pending asylum application and review or appeal of the Magistrate's order. Costs awarded against the respondents.
Judges
Victor
Legal Topics
Refugee Status Determination, Non Refoulement, Waiver of Rights, Fair Trial Rights, Urgent Interdict, Release From Detention
Constitutional Law Administrative Law Civil Procedure Refugee Status Determination Non Refoulement Waiver of Rights Fair Trial Rights Urgent Interdict +1 more

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Parties

Mafadi Herbert

Applicant

Musana Luzake

Applicant

The Minister of Home Affairs

Respondent

The Director General, Department of Home Affairs

Respondent

Procedural Posture

Urgent Application / High Court Application for Urgent Interdict and Release Pending Asylum Process

Legal Issues

  1. 1 Whether the applicants' detention and impending deportation are lawful given their intention to apply for asylum.
  2. 2 Whether the applicants validly waived their constitutional and international rights to seek asylum.
  3. 3 Whether the Magistrate's deportation order precludes the High Court from granting interim relief.

Ratio Decidendi

The High Court found that the applicants' detention and impending deportation were unlawful as they had not been afforded a genuine opportunity to apply for asylum, nor had they validly waived their constitutional and international rights. The purported waiver was not informed or voluntary, lacking legal representation and interpretation. The Refugees Act and international conventions require that asylum seekers be protected from refoulement until their claims are properly adjudicated. The closure of refugee reception offices due to the pandemic rendered compliance with amended procedures impossible, but did not extinguish the right to seek asylum. The Magistrate's deportation order does...

Court Disposition

Application granted. The applicants are to be released from Lindela Detention Centre and are entitled to remain in South Africa pending asylum application and review or appeal of the Magistrate's order. Costs awarded against the respondents.

Orders

  • This application is heard on an urgent basis in terms of Rule 6(12)(a).
  • The first applicant shall by 31 August 2021 institute proceedings to appeal or review the orders of the District Court, Nongoma case numbers B50/2021 and 89/04/2021 handed down on 26 April 2021.