South Africa Case Law

Shamore v Minister of Home Affairs and Others (2024/021421)

Shamore v Minister of Home Affairs and Others (2024/021421) [2024] ZAGPJHC 414 (2 May 2024)

Court

South Gauteng High Court, Johannesburg

Case number

2024/021421

Judge

S D J Wilson

The court held that the applicants, as asylum seekers present in South Africa without valid visas, are entitled to a good cause interview under section 21(1B) of the Refugees Act and Regulation 8(3) of the Refugee Regulations before any deportation or continued detention can be justified. The respondents failed to arrange such interviews despite having ample opportunity and being ordered by the court to do so. In the absence of any lawful justification for continued detention and with no good cause interviews having taken place, the applicants' detention became unlawful. The court found that…

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• Immigration Detention
• Asylum Seekers Rights
• Good Cause Interview
• Refoulement Risk
• Refugees Act Interpretation

Megabo v National Director of Public Prosecutions and Another (2988/2021)

Megabo v National Director of Public Prosecutions and Another (2988/2021) [2024] ZAECMKHC 24 (13 February 2024)

Court

Eastern Cape High Court, Makhanda

Case number

2988/2021

Judge

Govindjee

The court held that section 21(4)(a) of the Refugees Act, interpreted purposively and in accordance with Constitutional Court authority, bars both the institution and continuation of criminal proceedings against an asylum seeker for unlawful presence while a judicial review of the refusal of asylum is pending. The principle of non-refoulement and the need to protect the dignity and security of asylum seekers require that immunity from prosecution endures until finalisation of judicial review. The respondents' decisions to continue prosecution were irrational and misaligned with the correct in…

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• Refugees Act Interpretation
• Non Refoulement
• Judicial Review Of Prosecution
• Immunity From Prosecution
• Legality Review
• Statutory Interpretation

Ashebo v Minister of Home Affairs and Others (CCT 250/22)

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)

Court

Constitutional Court

Case number

CCT 250/22

Judges

Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J, Theron J

The Constitutional Court held that the applicant, an illegal foreigner who expressed an intention to apply for asylum, must be afforded an opportunity to do so, in line with the principle of non-refoulement and established precedent. Delay in expressing intention does not bar access to the asylum process, though it may affect credibility, which is for the Refugee Status Determination Officer to assess. The legislative amendments do not override the constitutional and international obligations to protect asylum seekers. The applicant's continued detention, without reasonable steps taken by the…

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• Non Refoulement
• Illegal Foreigner Detention
• Refugee Status Determination
• Section 12 Rights
• Refugees Act Interpretation
• Immigration Act Application

A.I and Others v Director of Asylum Seeker Management: Department of Home Affairs and Others (22059/2018)

A.I and Others v Director of Asylum Seeker Management: Department of Home Affairs and Others (22059/2018) [2022] ZAWCHC 271 (27 June 2022)

Court

Western Cape High Court, Cape Town

Case number

22059/2018

Judge

Slingers

The court held that refused asylum seekers had no clear right to resubmit asylum applications after final rejection and SCAR confirmation.

• Refugees Act Interpretation
• Non Refoulement
• Sur Place Refugee Claims
• Judicial Review
• Abusive Asylum Applications
• Refugees-act-interpretation

Nwankwo v Minister of Home Affairs and Others; Anyacho and Another v Director General: Department of Home Affairs and Another; Onwuakpa v Director General: Department of Home Affairs and Another (2021/01004; 2021/0013; 2021/0014)

Nwankwo v Minister of Home Affairs and Others; Anyacho and Another v Director General: Department of Home Affairs and Another; Onwuakpa v Director General: Department of Home Affairs and Another (2021/01004; 2021/0013; 2021/0014) [2020] ZAGPJHC 377 (22 September 2020)

Court

South Gauteng High Court, Johannesburg

Case number

2021/01004; 2021/0013; 2021/0014

Judge

DP de Villiers

The court held that the continued detention of the applicants at Lindela Repatriation Centre was unlawful. The Refugees Act, specifically section 21(4), prohibits proceedings against asylum seekers pending the determination of their applications, and this protection applies regardless of the applicants' criminal convictions or lapsing of permits. The state failed to plead and prove compliance with the administrative processes required to terminate asylum or immigration status, and did not establish lawful grounds for detention under either the Refugees Act or the Immigration Act, especially i…

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• Detention Of Asylum Seekers
• Habeas Corpus
• Judicial Oversight
• Refugees Act Interpretation
• Immigration Act Interplay
• Non Refoulement

Ruta v Minister of Home Affairs (CCT02/18)

Ruta v Minister of Home Affairs (CCT02/18) [2018] ZACC 52; 2019 (3) BCLR 383 (CC); 2019 (2) SA 329 (CC) (20 December 2018)

Court

Constitutional Court

Case number

CCT02/18

Judges

Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ, Theron J

The Constitutional Court held that delay in seeking asylum does not bar an applicant from accessing the asylum process under the Refugees Act. The only grounds for exclusion are those set out in section 4, and the Refugee Status Determination Officer alone is authorised to assess the merits of an application. Crimes committed within South Africa do not trigger exclusion under section 4(1)(b). The Immigration Act must be read in harmony with the Refugees Act, and the latter prevails in matters of asylum. The Supreme Court of Appeal was bound by its own precedents, which consistently held that…

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• Refugees Act Interpretation
• Non Refoulement
• Delay In Asylum Application
• Statutory Exclusion
• Precedent Stare Decisis

Saidi and Others v Minister of Home Affairs and Others (CCT107/17)

Saidi and Others v Minister of Home Affairs and Others (CCT107/17) [2018] ZACC 9; 2018 (7) BCLR 856 (CC); 2018 (4) SA 333 (CC) (24 April 2018)

Court

Constitutional Court

Case number

CCT 107/17

Judges

Zondo ACJ, Cameron J, Froneman J, Jafta J, Kathree Setiloane AJ, Kollapen AJ, Madlanga J, Mhlantla J, Theron J, Zondi AJ

The Constitutional Court held that refugee reception officers may extend asylum seeker permits pending PAJA judicial review of a refusal of asylum.

• Refugees Act Interpretation
• Non Refoulement
• Permit Extension Powers
• Promotion Of Administrative Justice Act
• Bill Of Rights Limitation
• Refugees-act-interpretation

Minister of Home Affairs and Others v Saidi and Others (294/2016)

Minister of Home Affairs and Others v Saidi and Others (294/2016) [2017] ZASCA 40; 2017 (4) SA 435 (SCA); [2017] 2 All SA 755 (SCA) (30 March 2017)

Court

Supreme Court of Appeal

Case number

294/2016

Judges

Maya, Majiedt, Swain, Gorven, Mbatha

Section 22(3) of the Refugees Act empowers the Refugee Reception Officer to extend asylum seeker permits even after internal remedies have been exhausted, including during the pendency of judicial review proceedings. This interpretation is supported by the statutory language, the broader context of the Act, constitutional values, and international obligations, particularly the principle of non-refoulement. The discretion to extend permits remains with the Refugee Reception Officer and is not a mandatory duty; each application must be considered on its merits. The respondents did not establish…

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• Refugees Act Interpretation
• Asylum Seeker Permits
• Judicial Review
• Non Refoulement
• Legitimate Expectation
• Constitutional Rights

Okoroafor v Minister of Home Affairs and Another (3536/2016)

Okoroafor v Minister of Home Affairs and Another (3536/2016) [2016] ZAECPEHC 85; 2017 (3) SA 290 (ECP) (18 October 2016)

Court

Eastern Cape High Court, Port Elizabeth

Case number

3536/2016

Judge

Eksteen

The court held that the exclusion in section 4(1)(b) of the Refugees Act applies only to crimes committed outside South Africa prior to arrival, not to offences committed within South Africa after entry. The decision to exclude an applicant from refugee status under section 4(1)(b) does not lie with individual immigration officers but with the Minister or delegated authority. The applicant did not expressly or tacitly waive his right to apply for asylum; fraudulent conduct and delay do not constitute waiver. Regulation 2(2) of the Refugees Act requires that any illegal foreigner who indicates…

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• Refugees Act Interpretation
• Regulation 2 2 Permit
• Exclusion From Refugee Status
• Waiver Of Asylum Rights
• Unlawful Detention

Mubake and Others v Minister of Home Affairs and Others (72342/2012)

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

Court

North Gauteng High Court, Pretoria

Case number

72342/2012

Judge

T.M. Makgoka

The court held that separated children accompanying adult asylum seekers are dependants under the Refugees Act and must be documented pending any further welfare inquiry.

• Refugees Act Interpretation
• Child Rights
• Dependant Definition
• Bill Of Rights Limitation
• International Instruments
• Best Interests Of Child