Ssemakula and Others v Minister of Home Affairs and Others (4139/11) [2012] ZAWCHC 398 (5 March 2012)

Ssemakula and Others v Minister of Home Affairs and Others (4139/11) [2012] ZAWCHC 398 (5 March 2012)

The court found that the Respondents' refusal to accept asylum applications and issue temporary asylum seeker permits unless the applicant possessed an asylum transit permit was inconsistent with the Constitution and the Refugees Act. The Respondents failed to justify the policy or practice, and their denial was contradicted by the evidence presented by the Applicants. The court held that the Respondents' conduct unlawfully prevented asylum seekers from exercising their constitutional and statutory rights, exposed them to risk of arrest and deportation, and was invalid. The Respondents were ordered to accept and process asylum applications irrespective of transit permit status.

Citation
[2012] ZAWCHC 398
Parties
Applicant: Dennis Ssemakula; Applicant: Christelle Kabangu Musasa; Applicant: Sarah Kumwero; Applicant: Jean Clotaire Ruvako; Applicant: Beathe ML Sab Yi Mana; Applicant: Muhamedi Matovu; Applicant: Twaha Katende; Applicant: George Muyomba; Applicant: John Jtkeme Afeez; Applicant: Patrick Kuyanda Kashama; Respondent: Minister of Home Affairs; Respondent: Director-General, Department of Home Affairs; Respondent: Director, Refugee Reception Centre, Maitland; Respondent: Refugee Reception Officer, Refugee Reception Centre, Maitland
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 March 2012
Case Number
4139/11
Procedural Posture
Urgent Application / First Instance Judgment
Outcome
Application granted. The Respondents' conduct declared unlawful and invalid. Respondents ordered to accept and process asylum applications regardless of transit permit status. Costs awarded against Respondents.
Judges
Dolamo
Legal Topics
Refugees Act, Immigration Act, Right of Access to Courts, Constitutional Invalidity, Administrative Action
Constitutional Law Administrative Law Refugees Act Immigration Act Right of Access to Courts Constitutional Invalidity Administrative Action

Case Brief

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Parties

Dennis Ssemakula

Applicant

Christelle Kabangu Musasa

Applicant

Sarah Kumwero

Applicant

Jean Clotaire Ruvako

Applicant

Beathe ML Sab Yi Mana

Applicant

Muhamedi Matovu

Applicant

Twaha Katende

Applicant

George Muyomba

Applicant

John Jtkeme Afeez

Applicant

Patrick Kuyanda Kashama

Applicant

Minister of Home Affairs

Respondent

Director-General, Department of Home Affairs

Respondent

Director, Refugee Reception Centre, Maitland

Respondent

Refugee Reception Officer, Refugee Reception Centre, Maitland

Respondent

Procedural Posture

Urgent Application / First Instance Judgment

Legal Issues

  1. 1 Whether the Respondents' policy or practice of refusing to accept asylum applications without an asylum transit permit is unlawful and inconsistent with the Constitution and the Refugees Act.
  2. 2 Whether the Respondents are obliged to accept and process asylum applications irrespective of possession of an asylum transit permit.
  3. 3 Whether the Applicants are entitled to the relief sought, including costs.

Ratio Decidendi

The court found that the Respondents' refusal to accept asylum applications and issue temporary asylum seeker permits unless the applicant possessed an asylum transit permit was inconsistent with the Constitution and the Refugees Act. The Respondents failed to justify the policy or practice, and their denial was contradicted by the evidence presented by the Applicants. The court held that the Respondents' conduct unlawfully prevented asylum seekers from exercising their constitutional and statutory rights, exposed them to risk of arrest and deportation, and was invalid. The Respondents were ordered to accept and process asylum applications irrespective of transit permit status.

Court Disposition

Application granted. The Respondents' conduct declared unlawful and invalid. Respondents ordered to accept and process asylum applications regardless of transit permit status. Costs awarded against Respondents.

Orders

  • The Respondents' policy, practice, and/or conduct of refusing to accept asylum applications and issue temporary asylum seeker permits unless the applicant possesses an asylum transit permit is declared inconsistent with the Constitution and the Refugees Act and is unlawful and invalid.
  • The Respondents are directed to forthwith accept and process applications for temporary asylum seeker permits in accordance with Section 22 of the Refugees Act, irrespective of whether the asylum seekers are in possession of asylum transit permits.