Judge slams Home Affairs for 'unintelligible, illogical babble' in gay case
'Unintelligible, illogical babble'. This is how a Western Cape High Court judge described the reasoning of a Home Affairs official who rejected an application for asylum by a citizen of Chad, who had been imprisoned in his home country for being gay.
Judge Gayaat Da Silva Salie set aside the rejection of the asylum application and ordered that it be heard afresh by another Refugee Status Determination Officer (RSDO) within six months.
The man, identified only as MAM in the judgment, said he fled Chad after he had been arrested and served a year in jail, convicted under the country's 'anti-homosexual' laws.
He came to South Africa on a visitor's visa in May 2023 and was involved in a relationship with a South African doctor.
In 2024 he applied for asylum. His last interview was in September 2024. He was then informed that his application had been rejected.
In his reasons, the RSDO gave a long explanation of the political system in Chad.
He then recorded: 'You were arrested and sentenced because of your sexual orientation and homosexuals are not allowed in your country. You stated that you were released by the court because you have use of a lawyer. When I assessed your information concerning homosexuals, there's a separation of powers between the executive and the judicial power in terms of homosexual laws. The government does not allow same sex relations and the courts released the offenders. Therefore your application has been rejected as unfounded.'
MAM, in his submissions, said he could not appeal this decision internally because it was 'unintelligible, irrational and failed to consider the applicable law in Chad'.
He said this constituted 'exceptional circumstances' which allowed him to approach a court, without exhausting his internal appeal remedies, as provided for in the Refugees Act.
Judge Da Silva Salie said MAM had submitted that he fled Chad after being imprisoned solely for being a homosexual man. He said his safety and freedom remain threatened in Chad. He indicated that his family had disowned him and he faced persecution from the state and society at large.
However, the respondents — the Director-General and the Minister of Home Affairs — opposed the application. They argued that the reasons were not only adequate but also clear.
They also argued that the matter did not meet the threshold of 'exceptional circumstances' to approach a court for judicial scrutiny without exhausting internal remedies.
Judge Da Silva Salie said the RSDO had concluded that the applicant's asylum claim was 'unfounded' relying primarily on the assertion that the judiciary in Chad is independent, and that although homosexuality is criminalised, some courts had released offenders.
'I find the argument that these reasons were clear and adequate to be rather problematic.
'They are contradictory and factually incoherent. The RSDO accepts the facts of criminalisation of homosexuality whilst simultaneously rejecting the credibility of his claim of fear of future persecution.
'This reflects a profound misunderstanding of the legal standards governing asylum, especially the well-founded fear of persecution provided for in the Refugees Act.'
She noted that the RSDO had also disregarded the legal framework that governed asylum decisions and South Africa's international obligations to the rights of LGBTQI+ people.
'The theoretical independence of the judiciary cannot override the reality that consensual same-sex conduct remains criminalised in Chad and that the applicant was prosecuted and imprisoned under those laws,' she said.
'If anything, the position can only be worse for him should he return as he would be a convicted person of homosexual offences. The assertion that 'the courts released offenders' ignores that harm has already occurred. '
She said the reasons lacked any intelligible or informative content which could assist MAM in formulating an internal appeal and were 'characteristic of a sequence of illogical babble'.
'It is unintelligible,' she said.
She cautioned that officials could not 'hide behind the hurdle to exhaust internal remedies', when they had provided obtuse and unfathomable reasons for application rejections.
'They are required to apply their minds and provide reasons which are clear, adequate, and provide a meaningful basis from which an applicant can comprehend, request further reasons and decide in an informed manner as to their further rights and remedies in law.'
Judge Da Silva Salie set aside the rejection application and ordered that MAM be interviewed by a different officer within six months.
She ordered the government respondents to pay the costs of the application.
This article first appeared on GroundUp. Read the original article here.
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
The South African
20 minutes ago
- The South African
NGO highlights mental health support for men with prostate cancer
A prostate cancer diagnosis can take its toll on men's mental health. That's according to mental health advocacy organisation, the South African Federation for Mental Health (SAFMH). July marks Men's Health Month, which raises awareness of preventable health problems in men and boys. SAFMH is marking the month under the theme 'Prostate cancer and men's mental health'. Prostate cancer is the most common cancer affecting men around the world. This was recently highlighted when former US President Joe Biden announced his diagnosis in May. About 1 in 15 South African men will be diagnosed with the condition at some point in their lifetime, according to the 2022 National Cancer Registry. However, if detected early, the cancer can be treated and overcome. According to SAFMH, research increasingly highlights the importance of mental healthcare for patients with the condition. In fact, men with the diagnosis have a higher risk of developing mental health conditions. Cancer patients commonly experience anxiety and depression. Men with prostate cancer may also experience treatment side effects that impact on sexual health. In turn, that can negatively affect mood and relationships. In an article, SAFMH shared the experience of David, a patient who faced the condition. He described the impact of the diagnosis on his mental health: 'What if the medication didn't work? What if I suffered the same fate as my friend's father? I went from feeling angry to feeling uncertain, which led to a feeling of desperation.' Encouragingly, however, research indicates that long-term mental health support for men with the diagnosis could assist with increasing their life expectancy. David encourages men with prostate cancer to seek professional mental health support, and to communicate openly with their loved ones. He said: 'Be willing to discuss and communicate your feelings, fears, and physical condition openly with your loved ones and your therapist. That is the only way for them to understand what you are going through, and that makes it easier for them to adjust and assist you with coping with the cancer. He added: 'Most importantly, do not lose hope. Take it one day at a time, be kind to yourself and to those around you. Stick to your treatment plan even if it is hard…In the end, it's worth it!' SAFMH highlights the following organisations for South Africans facing a prostate cancer diagnosis: CANSA: offers resources and support options Cancer Alliance: resources and support groups For general mental health support, you can contact the South African Depression and Anxiety Group (SADAG) hotline on 0800 567 567. Let us know by leaving a comment below or send a WhatsApp to 060 011 0211. Subscribe to The South African website's newsletters and follow us on WhatsApp, Facebook, X, and Bluesky for the latest news.
TimesLIVE
an hour ago
- TimesLIVE
Ngugi was simply ordinary — a man of the people
Ngugi wa Thiong'o, the Kenyan playwright, novelist and thinker, who died on May 28, has left a huge intellectual gap in Africa's cultural and political landscape. Instead of mourning him, I have chosen to celebrate the intellectual legacy of this generous and authoritative African sage I was privileged to have encountered during my undergraduate days at Nairobi University and much later as a scholar of Ngugi and African literature. When I arrived in South Africa in 1991, Ngugi was the most widely known African writer in the academy, in spite of apartheid. As early as 1981, the widely respected South African journal, English in Africa, had dedicated a special issue to his works. His most widely referenced text then, was Decolonising the Mind. Indeed, he is the most widely taught African writer in the global north and the global south, alongside Chinua Achebe — the man who published his award winning novel, Weep Not, Child under Heinemann African Writers Series. When the prestigious Cambridge University Press decided to publish worldwide series on 'Leading Writers in Context', again it is Achebe and Ngugi who featured from Africa, and I am deeply privileged to have been asked to serve as the editor of the volume on Ngugi in Context. His works have been widely translated in several languages across the globe: Japanese, German, Chinese and in many parts of Asia. I hope we will soon see his works getting translated into African languages across the continent. During his last days, he had embarked on translating his novels written in English into Gikuyu. It needs no emphasis that Ngugi remains one of the most influential African writers over the past few decades of Africa's independence, not only for his creative works but also for his wide-ranging contributions on Africa's cultural thought and political life. Indeed, the role of the writer in shaping the cultural and political life of his people is an enduring theme in all his works. He was concerned with the role of culture as a source of historical memory and as a weapon against all forms of oppressive regimes. But he was also interested in narrative, specifically imaginative literature, as an agent of history and self-definition, an instrument for taming and naming one's environment. He was concerned with literature's role in the restoration of African communities dislocated by colonialism and the repressive postcolonial states that followed. As early as 1972, Ngugi was already drawing attention to how the tyranny of the past exerts itself on his works. He wrote: 'The novelist is haunted by a sense of the past. His work is often an attempt to come to terms with 'the thing that has been,' a struggle as it were, to sensitively register his encounter with history, his people's history' (Homecoming, 39). For Ngugi then, the novel was an instrument that wills history into being and therefore, as a writer, he always located himself at the intersection of history and literary imagination. Ngugi always insisted that colonial subjects were detached from their mainstream history and therefore their identity was shaped by forces alien to their local universe Ngugi always insisted that colonial subjects were detached from their mainstream history and therefore their identity was shaped by forces alien to their local universe. For him, the search for Africa's identity therefore lay in a reconstructive project to reassert a radical form of Africa's historiography conceived from below. At the heart of his restorative project was also his call for a return to the source, which would also involve the privileging of African languages in the production and consumption of local cultures. For him, it was only African languages that had the capacity to recover those African cultures repressed by colonialism and to equally carry the weight of a national history and memory. Genuine national literature, Ngugi argued, can only flower in local indigenous languages because literature as a cultural institution works through images and language embodied in the collective experience of a people. Ngugi always positioned himself as a writer in politics. He was hounded at home by one Kenyan political regime after the other and eventually driven into exile in the eighties by the repressive Moi regime in Kenya in the 80s. Little wonder then, that themes of dislocation, abandonment and exile dominates his works, written against the backdrop of authoritarian structures of control and imprisonment. Ngugi's early works are heavily weighted towards fiction, and the later lean towards non-fiction. In the 1960s and 1970s, which saw the publication of four novels, two plays and a collection of short stories, Ngugi produced only one volume of essays, Homecoming. But after his last major work of fiction in English, Petals of Blood (1977), Ngugi wrote a total of five collections of essays as opposed to only three novels, Devil on the Cross (1981), Matigari (1986), and his latest novel, The Wizard of the Crow (Murogi wa Kagogo (2005), written first Gikuyu before translation. But it was the establishment of a community theatre in his home village of Kamiriithu, and the staging of the play, Ngaahika Ndeenda (I Will Marry When I Want), that really raised the ire of the Kenyan authorities, leading to the banning of the play, his arrest and detention without trial. It also marked a major turning point in Ngugi's life when in prison, he used the language of his incarceration to write his first Gikuyu novel: Caitaani Mutharabaini (Devil on the Cross), on rolls of toilet paper. Subsequently, it is only Ngugi's collection of essays that he would continue to write in English, obviously aimed at the academy, with whom he continued to wrestle with over a range of cultural and political issues. The joy of reading Ngugi's essays is that they serve as a theoretical elaboration of themes and topics akin to his narrative. If Writers in Politics (1981), and Barrel of a Pen (1983) essays seek to question the colonial traditions of English and Englishness inherited at independence, Decolonising the Mind (1986), and Moving the Centre (1993) push the debate to its limits by insisting that the roots to Africa's freedom lay in the articulation of a new idiom of nationalism that would liberate the African identities from the prison house of European languages and cultures. The project should not only involve the privileging of African languages in the making of African cultures, but also the struggle for the realignment of global forces such that societies, which have been confined to the margins will gradually move to the centre, to become not just consumers but producers of global culture. It is the denial of the cultural space by the postcolonial state tyranny and global imperialism that Ngugi elaborates on in Penpoints, Gunpoint, and Dreams. Here the culture of violence and silence that has come to define the postcolonial state; the state's desire to saturate the public space with its propaganda, is counterpoised against a radically redemptive art that seeks to erect a new regime of truth by reclaiming and colonising those spaces through the barrel of the pen. In his most eloquent collection of essays, symbolically entitled Moving the Centre, Ngugi draws attention to the effect of the colonial archive in arrogating what constitutes the real historical subject to the imperial centre. When Ngugi calls for moving of the centre, he is in essence trying to suggest that in terms of history and discursive knowledges, the West has always positioned itself as the true self — the centre — while the empire remains the Other and on the periphery. Indeed, one of the legacies of the colonial encounter is a notion of history as 'the few privileged monuments' of achievement, which serves either to arrogate 'history' wholesale to the imperial centre or to erase it from the colonial archive and produce, especially in the Empire or the so-called New World Cultures, a condition of 'history-lessness', of 'no visible history'. Both notions are part of the imperial myth of history because history is defined by what is central, not what is peripheral and those not central to an assumed teleology or belief system, are without history. It seems to me that even a superficial reading of Ngugi's narrative and his critical essays over the years, point to a conscious project of transforming our inherited notions of history, especially the position of the colonial subjects as inscribed within imperial discursive practices. If the imperial narrative attempted to fix history and to read the empires history as the history of the other, by making reference to its set of signs located in its cultural landscape, Ngugi's position is that the history of Africa need not be contingent upon the imperial allegorising. Allegory here is used to mean a way of representing, of speaking for the 'other', especially in the enterprise of imperialism. Whatever the ideological drifts and shifts in his body of work, Ngugi's fundamental belief is in the restorative agency embedded in all human cultures — the return of the other to the self. This is what he celebrates in his theory of globalectics — a theory that seek seeks to destabilise the privileging Western ways of knowing and instead celebrates those many streams of knowledge, regardless of their origins, as humanities collective experience. The creation of a humanistic wholeness and healing, has been at the core of his poetics over the years. The return to memoirs over the last decade or so was perhaps his last attempt to lay bare his soul and spirit; his life history as fragments of many forces — a rich tapestry into a life crafted around complex and layered forces of family and larger biographical universe. As a person, Ngugi was profoundly warm and down-to-earth, and always carried himself around with a deep sense of humility and ease, not to mention his infectious laughter and humour. He was simply ordinary — a man of the people. May his legacy live on and his soul rest in peace until we meet again in the land our ancestors. James Ogude, Professor of African Literatures and Cultures. Professor and Senior Research Fellow, and author of Ngugi's Novels and African History. Centre for the Advancement of Scholarship, University of Pretoria, South Africa
The South African
3 hours ago
- The South African
What happens if Afrikaner 'refugees' want to come home?
A second batch of Afrikaner 'refugees' have settled into the US, and thousands more are expected to arrive. However, with South African-born Elon Musk's ongoing feud with President Donald Trump, concern is mounting among those who now call America home. More importantly, will they be allowed to return to South Africa? It's no secret that President Donald Trump's view of South Africa was influenced by his former right-hand man, Elon Musk. Born in Pretoria, and having left at just 17, the world's richest man has actively accused his country of birth of promoting 'white genocide', 'farm confiscation,' and 'racist laws'. With Trump now threatening to cut all government contracts to Musk, and possibly distance himself from him altogether, what does this mean for the Afrikaner 'refugees' already in the US? What does Elon Musk's rant mean for Afrikaner 'refugees'? Images via X The group of white South Africans was offered asylum based on proving their fear of persecution on the grounds of race, religion, nationality, political opinion, or membership in a particular social group. Under US and international immigration laws, refugees who have received asylum cannot simply be deported to their country of persecution. Legislation also vigorously protects their rights to stay in their new adoptive country. However, their status can be terminated should they be found guilty of serious crimes or if they fraudulently sought asylum. According to the US Citizenship and Immigration Services (USCIS), there is a strict vetting process for those who seek refugee status in the country. Once resettled in the US, refugees are permitted to work immediately. They will be eligible for a green card a year later. However, there are also stringent travel restrictions in place. The USCIS states that all refugees must obtain permission via a travel document before they depart the US. Failure to do so could result in asylees being denied re-entry into the US. These actions could also strip asylees of their refugee status, resulting in removal proceedings before an immigration judge. In the case of Afrikaners, returning to South Africa – considered the country of 'persecution' – could come at a cost. Here is how… Refugees who visit SA without prior permission shall be presumed to have abandoned their asylum unless they can establish compelling reasons for their return. Refugees are expected to explain the reason for their return in the process of obtaining permission. Returning to one's country of claimed persecution could result in termination of asylum if there are fundamental changes in circumstances back home. Termination could also occur due to fraud in the asylum application. This happens if an applicant is not eligible for refugee status. Returning to SA for business or pleasure can be considered evidence that the refugee's alleged fear of persecution is not genuine. For Afrikaner 'refugees' hoping to return home willingly for good, voluntary repatriation is always an option. Organisations like the UNHCR help those who wish to travel back to their countries by providing financial assistance. According to the South African Department of International Relations, 'refugees' would be welcomed back as citizens. However, they would have to revoke their status in order for this to happen. Let us know by leaving a comment below, or send a WhatsApp to 060 011 021 1 . Subscribe to The South African website's newsletters and follow us on WhatsApp , Facebook , X , and Bluesky for the latest news.
