Mubake and Others v Minister of Home Affairs and Others (72342/2012) [2015] ZAGPPHC 1037; 2016 (2) SA 220 (GP) (9 July 2015)

Mubake and Others v Minister of Home Affairs and Others (72342/2012) [2015] ZAGPPHC 1037; 2016 (2) SA 220 (GP) (9 July 2015)

The court held that section 1 of the Refugees Act should be interpreted to include separated children as dependants of adult asylum seekers or refugees who accompany them into South Africa. This interpretation is consistent with constitutional values, international obligations, and the best interests of the child. The court found that requiring prior investigation by the Children's Court before documentation exposes children to greater risks, including being undocumented and untraceable. The initial temporary permit legalizes the child's stay and allows for subsequent investigation if necessary. The processes of immigration status and child welfare can run in parallel, and the Children's...

Citation
[2015] ZAGPPHC 1037
Parties
Applicant: Bulambo Biakomboka Mubake; Applicant: Sakina Okomo; Applicant: Lydie Mulumba; Applicant: Shekhina Kasongo Mulimbi; Applicant: Tina Kahunde; Applicant: Martine Balingongo Bolandza; Applicant: Vanessa Amisi; Applicant: Marie Dembo Wooko; Respondent: Minister of Home Affairs; Respondent: Director General: Home Affairs; Respondent: Head Manager: Tirro and Marabastad; Respondent: Minister of Education; Respondent: MEC: Education (Gauteng); Respondent: MEC: Social Development (Gauteng); Respondent: Minister of Social Development; Respondent: Director-General: Social Department
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 July 2015
Case Number
72342/2012
Procedural Posture
Review Application / Final Judgment After Opposed Motion
Outcome
Application granted. Relief sought by the applicants is granted.
Judges
T.M. Makgoka
Legal Topics
Refugees Act Interpretation, Child Rights, Dependant Definition, Bill of Rights Limitation, International Instruments, Best Interests of Child
Administrative Law Family and Children Constitutional Law Refugees Act Interpretation Child Rights Dependant Definition Bill of Rights Limitation International Instruments +1 more

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Parties

Bulambo Biakomboka Mubake

Applicant

Sakina Okomo

Applicant

Lydie Mulumba

Applicant

Shekhina Kasongo Mulimbi

Applicant

Tina Kahunde

Applicant

Martine Balingongo Bolandza

Applicant

Vanessa Amisi

Applicant

Marie Dembo Wooko

Applicant

Minister of Home Affairs

Respondent

Director General: Home Affairs

Respondent

Head Manager: Tirro and Marabastad

Respondent

Minister of Education

Respondent

MEC: Education (Gauteng)

Respondent

MEC: Social Development (Gauteng)

Respondent

Minister of Social Development

Respondent

Director-General: Social Department

Respondent

Procedural Posture

Review Application / Final Judgment After Opposed Motion

Legal Issues

  1. 1 Whether separated children accompanying adult asylum seekers or refugees qualify as 'dependants' under section 1 of the Refugees Act 130 of 1998.
  2. 2 Whether the Department of Home Affairs must issue temporary asylum permits to separated children in the care of adult asylum seekers or refugees without prior Children's Court investigation.
  3. 3 How international and constitutional obligations affect the interpretation of 'dependant' in the Refugees Act.

Ratio Decidendi

The court held that section 1 of the Refugees Act should be interpreted to include separated children as dependants of adult asylum seekers or refugees who accompany them into South Africa. This interpretation is consistent with constitutional values, international obligations, and the best interests of the child. The court found that requiring prior investigation by the Children's Court before documentation exposes children to greater risks, including being undocumented and untraceable. The initial temporary permit legalizes the child's stay and allows for subsequent investigation if necessary. The processes of immigration status and child welfare can run in parallel, and the Children's...

Court Disposition

Application granted. Relief sought by the applicants is granted.

Orders

  • It is declared that separated children are dependents of their primary care-givers in terms of the definition of 'dependant' in section 1 of the Refugees Act 130 of 1998.
  • The first and second respondents are ordered to inform all Refugee Reception offices by way of departmental directive to issue the relevant permits to separated children as dependants of their care-givers.