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Eyewitness News
04-06-2025
- General
- Eyewitness News
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.
Daily Maverick
21-05-2025
- Politics
- Daily Maverick
Home Affairs sent back to drawing board on Refugees Act after legal setback
The Department of Home Affairs has been forced to reconsider its approach to amending the Refugees Act after legal advisers rejected its proposed changes to controversial sections that had been ruled unconstitutional. The Department of Home Affairs (DHA) must go back to the drawing board to align the Refugees Act with the Constitution, following advice against its proposed approach to sections 22(12) and 22(13) of the legislation. This emerged during a meeting in Parliament of the Portfolio Committee on Home Affairs on Tuesday, at which Home Affairs Minister Dr Leon Schreiber and other DHA officials updated the committee on progress in amending sections of the legislation that courts had ruled were constitutionally deficient. In 2023, the Scalabrini Centre took the DHA to court over amendments made to the Refugees Act in 2020, specifically the introduction of sections 22(12) and 22(13). These sections provided for the 'automatic abandonment' of asylum applications if an asylum seeker or refugee failed to renew their permit within one month of its expiry. In practice, this meant that if an asylum seeker did not renew their visa, the DHA could presume they no longer wished to seek refugee status or apply for asylum, and could be subject to deportation or required to leave South Africa. Scalabrini brought the case before the Western Cape High Court, arguing that the provisions infringed constitutional rights, including the rights to life, dignity, and freedom and security of the person. The organisation cited the practical and systemic challenges that applicants face at the DHA when attempting to renew their permits. Earlier this month, the court declared the provisions invalid and unconstitutional. Following the judgment, the DHA consulted the Refugee Appeals Authority and the Standing Committee for Refugee Affairs. Both bodies supported the subsections declared constitutionally invalid, recommending their retention but proposing that the period for renewing an expired visa be extended from one month to 180 days, in line with the Promotion of Administrative Justice Act. However, the Office of the Chief State Law Adviser (OCSLA), which provides legal counsel to the executive and all government departments, declined to issue a preliminary certificate for the draft Bill. It said the DHA's approach to the judgment and its attempt to amend the legislation failed to address the fundamental reasons that sections 22(12) and 22(13) were declared invalid, which were: The provisions were arbitrary, as their introduction meant asylum seekers could be deported not solely on the merits of their claims but due to external circumstances. The provisions did not account for external factors that might prevent the renewal of asylum visas, such as the location of the nearest Refugee Reception Office (RRO), the length of queues at RROs, or the workload within these offices. The DHA has concluded that any amendments to the Act will need to be addressed through a supplementary white paper at a later stage. DHA pivots on legal challenge approach The DHA's next attempt at amending the Act is likely to comply with constitutional requirements, if Schreiber's address to the portfolio committee is any indication. Schreiber noted that Home Affairs was among the most litigated departments in government, if not the most, and that this was something the DHA aimed to change. He stated that the department no longer viewed litigation as something that must always be opposed at any cost, adding: 'We are looking at cases in a much more merit-based way, considering whether there are prospects of success and certainly not making decisions to oppose matters for the sake of it.' Discussing the department's approach to legal challenges, Schreiber said the DHA's decisions were always anchored in legal advice, constitutionality and the requirements of the law. 'We have a high mountain to climb in terms of re-establishing the rule of law in this space of Home Affairs — whether it is civics, immigration or the asylum management system — and we cannot do that unless we ourselves are leading by example,' said Schreiber. He emphasised that ensuring the DHA's operations and functions aligned with the Constitution was not merely about improving the department's image, but also about reducing costs. 'The contingent liability that comes from legal exposure, as well as the day-to-day cost of spending so much money on legal cases, is in and of itself, in the current budget environment, a very clear reason for us to focus on this area and make sure we reduce the burden of legal cases on this department,' he said. DM
IOL News
20-05-2025
- Politics
- IOL News
Relief for new asylum seekers
Following a ruling declaring several provisions of the Refugees Act Unconstitutional which denied asylum seekers access to the asylum system, causing them to face deportation back to the country from where they came, Home Affairs was urged to respect the ruling. Image: File picture NEWCOMER asylum seekers cannot be penalised for the way they entered and remained in South Africa until their claims are finalised, thanks to a Western Cape High Court judgment which declared several refugee protection provisions of the Refugees Act and its accompanying regulations invalid. The court recently delivered its outcome on the legality of processes that have denied new asylum seekers access to the asylum system since around November 2023, leading to the arrest, detention, and deportation of asylum seekers without a refugee status determination interview. The matter was brought to court by the Scalabrini Centre of Cape Town, represented by Lawyers for Human Rights (LHR). The Scalabrini Centre and LHR challenged the unlawful practice of arresting and detaining new asylum seekers based on preliminary interviews conducted by immigration officials regarding their entry into the country. They argued that this process effectively bypassed the established asylum application process, contravening the fundamental principle of non-refoulement, which prohibits the return of individuals to places where they face persecution or serious harm. This judgment, according to Nabeelah Mia, the head of LHR's Penal Reform and Detention Monitoring Programme, affirms South Africa's obligations under international refugee law. Video Player is loading. Play Video Play Unmute Current Time 0:00 / Duration -:- Loaded : 0% Stream Type LIVE Seek to live, currently behind live LIVE Remaining Time - 0:00 This is a modal window. Beginning of dialog window. Escape will cancel and close the window. 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Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Next Stay Close ✕ When newcomer asylum seekers come to South Africa seeking refuge, the primary question in assessing their claims is whether they are at risk of persecution and harm if they are returned to their country of origin, she said. 'We urge the state to respect the right of asylum seekers to access the asylum system and not send people back to situations where they will be harmed, tortured, or even killed,' she said. The court was told that someone who flees war, violence, torture, or persecution should be able to apply for and receive asylum. Preventing them from doing so violates their fundamental right not to be returned to violence and persecution. It was argued that instead, new asylum applicants are arrested, detained, and face deportation. 'South Africa is legally required not to return someone to an environment in which their life, liberty, or fundamental human rights would be at risk,' said James Chapman, head of Advocacy and Legal Advice at Scalabrini. The sections of the Act declared invalid include those which excluded people from refugee protection on procedural grounds, without considering the merits of their claims. The court (three judges) has recognised that the challenged legal provisions, which formed the basis for the arrest, detention, and denial of access to the asylum system for new applicants, are contrary to the Constitution. In terms of the Constitution, the declaration of invalidity must now be referred to the Constitutional Court for confirmation. The interim interdict granted in the first part of the application in September last year, which prevented the deportation of individuals who had indicated an intention to apply for asylum, has meanwhile been discharged. This means the temporary protection against deportation is lifted for now, pending the Constitutional Court's decision. Mia said following Friday's judgment in which several provisions of the Act were declared invalid, they hope and trust that the Department of Home Affairs will restore access to asylum. She expressed the hope that asylum seekers' applications will be processed without subjecting them to arrest, detention, and deportation without consideration of the merits of their asylum claims. Judge Judith Cloete, who wrote the judgment, said the provisions unjustifiably limited the rights to no-refoulement and other constitutional rights, particularly those of children. This was done by placing procedural barriers without substantive merit assessments. The department's argument that the provisions acted as a "safety valve" against illegal immigrants was rejected by the court. Cape Times
IOL News
19-05-2025
- Politics
- IOL News
Judgment on asylum seekers: South Africa's legal obligations under the Constitution
Following a ruling declaring several provisions of the Refugees Act Unconstitutional which denied asylum seekers access to the asylum system, causing them to face deportation back to the country from where they came, Home Affairs was urged to respect the ruling. Image: File picture The legality of processes that have denied new asylum seekers access to the asylum system since around November 2023, leading to the arrest, detention, and deportation of asylum seekers without a refugee status determination interview, has been declared unconstitutional. The Western Cape High Court has declared several refugee protection compromising provisions of the Refugees Act and its accompanying regulations invalid. The matter was brought to court by the Scalabrini Centre of Cape Town, represented by Lawyers for Human Rights (LHR). The Scalabrini Centre and LHR challenged the unlawful practice of arresting and detaining new asylum seekers based on preliminary interviews conducted by immigration officials regarding their entry into the country. They argued that this process effectively bypassed the established asylum application process, contravening the fundamental principle of non-refoulement, which prohibits the return of individuals to places where they face persecution or serious harm. 'This judgment affirms South Africa's obligations under international refugee law. Newcomer asylum seekers cannot be penalised for the way they entered and remained in South Africa until their claims are finalised," Nabeelah Mia, the head of LHR's Penal Reform and Detention Monitoring Programme, said. She explained that when newcomer asylum seekers come to South Africa seeking refuge, the primary question in assessing their claims is whether they are at risk of persecution and harm if they are returned to their country of origin. 'We urge the state to respect the right of asylum seekers to access the asylum system and not send people back to situations where they will be harmed, tortured, or even killed,' she said. The court was told that someone who flees war, violence, torture, or persecution should be able to apply for and receive asylum. Preventing them from doing so violates their fundamental right not to be returned to violence and persecution. It was argued that instead, new asylum applicants are arrested, detained, and face deportation. 'South Africa is legally required not to return someone to an environment in which their life, liberty, or fundamental human rights would be at risk,' said James Chapman, head of Advocacy and Legal Advice at Scalabrini. The sections of the Act declared invalid include those which excluded people from refugee protection on procedural grounds, without considering the merits of their claims. The court (three judges) has recognised that the challenged legal provisions, which formed the basis for the arrest, detention, and denial of access to the asylum system for new applicants, are contrary to the Constitution. In terms of the Constitution, the declaration of invalidity must now be referred to the Constitutional Court for confirmation. The interim interdict granted in the first part of the application in September last year, which prevented the deportation of individuals who had indicated an intention to apply for asylum, has meanwhile been discharged. This means the temporary protection against deportation is lifted for now, pending the Constitutional Court's decision. Mia said following Friday's judgment in which several provisions of the Act were declared invalid, they hope and trust that the Department of Home Affairs will restore access to asylum. She expressed the hope that asylum seekers' applications will be processed without subjecting them to arrest, detention, and deportation without consideration of the merits of their asylum claims. Judge Judith Cloete, who wrote the judgment, said the provisions unjustifiably limited the rights to no-refoulement and other constitutional rights, particularly those of children. This was done by placing procedural barriers without substantive merit assessments. The department's argument that the provisions acted as a "safety valve" against illegal immigrants was rejected by the court.
eNCA
16-05-2025
- Politics
- eNCA
Some sections of Refugee Act declared unconstitutional
JOHANNESBURG - The Western Cape High Court has ruled that certain provisions of the Refugees Act are unconstitutional and invalid. This decision comes after the Scalibrini Centre obtained an interdict preventing the Home Affairs Department from deporting foreign nationals intending to apply for asylum. The organisation argues their deportation without taking their asylum applications into account is unconstitutional.
