Ashebo v Minister of Home Affairs
| Jurisdiction | http://justis.com/jurisdiction/166,South Africa |
| Judge | Maya DCJ, Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J |
| Judgment Date | 12 June 2023 |
| Citation | 2023 JDR 2044 (CC) |
| Hearing Date | 16 February 2023 |
| Docket Number | CCT 250/22 |
| Court | Constitutional Court |
Maya DCJ (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J concurring):
Introduction
This is an urgent application for leave to appeal directly to this Court. [1] The applicant, Mr Beneyam Deselegn Ashebo, seeks to challenge the order of the High Court of South Africa, Gauteng Division, Pretoria (High Court). That Court struck his urgent application from the roll for lack of urgency and mulcted him with costs.
In the High Court the applicant sought an order, inter alia, interdicting the respondents from deporting him until his status under the Refugees Act, [2] alternatively under the Refugees Amendment Act, [3] had been lawfully and finally determined; declaring his continued detention unlawful and that he was entitled to remain in South Africa for a period of 14 days in order to allow him to approach a Refugee Reception Office (RRO); and for his immediate release from detention. He also prayed for an order directing the respondents to accept his asylum application and to issue him with a temporary asylum seeker permit pending finalisation of his application, including any review or appeal in terms of Chapter 3 of the Refugees Act
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Maya DCJ (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J concurring)
and the Promotion of Administrative Justice Act [4] (PAJA), if he applied for such a review or appeal.
Parties
The applicant is an Ethiopian national and an "illegal foreigner" for purposes of the Immigration Act. [5] He is currently detained at Kgosi Mampuru II Correctional Services Centre (Kgosi Mampuru) pending his trial and deportation. The first respondent is the Minister of Home Affairs, cited in his official capacity as the official responsible for the administration of the Refugees Act. The second respondent is the Director-General, Department of Home Affairs, also cited in his official capacity. The third to fifth respondents are the National Director of Public Prosecutions, the Minister of Justice and Correctional Services, and the Head of Kgosi Mampuru. They are respectively cited in their official capacities. Only the first and second respondents participated in these proceedings in the High Court. They did not oppose this application and only filed written submissions in response to the directions of the Chief Justice to do so. Any reference to "the respondents" in this judgment is reference to them.
Background facts
The applicant entered South Africa illegally from Zimbabwe on 11 June 2021 as he recounts. He claims to have been persecuted by the ruling party in his homeland for his political and religious beliefs. His family was torched and killed, but he managed to escape and fled to South Africa to save his life. He did not have a passport with him and did not use any of the official ports of entry as he feared being arrested and deported to Ethiopia.
On 7 July 2022, he was arrested in Pretoria for unlawfully entering and residing in South Africa, in contravention of the Immigration Act, and was charged in terms of
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Maya DCJ (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J concurring)
section 49 thereof. He alleges that upon his arrest, he tried to explain to the arresting officers that he was an asylum seeker and had been trying to apply for asylum since his arrival but the RRO had been closed due to the COVID-19 outbreak. He also told the officials who arrested him that he was fleeing his country for fear of persecution. Shortly after his arrival in the country he had launched an application to compel the respondents to accept his application for an asylum seeker permit but abandoned it because of a lack of funds. [6] However, his explanation fell on deaf ears.
He informed the detention officer of the reasons he had entered the country illegally. But the officer countered that he was in the country for economic reasons and would not accept his explanation. The applicant alleges that he is not fluent in English. During his conversation with the detention officer, which was conducted in English, no interpreter was employed. Thus, he could not express himself properly and could not understand fully what was being said. He contends that he was made to sign a document although he did not understand its contents.
Litigation history
On 9 September 2022 the matter was on the opposed roll in the High Court. It was fully argued. The respondents' counsel merely raised the defence that the matter was not urgent and argued that the applicant could not claim a right to apply for asylum because he had been in the country unlawfully for more than a year, and had also failed to take the court into his confidence about the grounds on which he intended seeking asylum.
The following is gleaned from the record of the hearing in the High Court. As soon as the proceedings started, the presiding Judge informed the parties that she was of the view that the alleged urgency was self-created. The Judge indicated that she had read the papers and found the applicant's version – that for the year preceding his arrest he had been trying to apply for an asylum permit – to be unbelievable, contradictory
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Maya DCJ (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J concurring)
and inconsistent. In her view, it was only when the applicant was arrested after being in the country illegally for more than a year that he created the urgency for purposes of approaching the Court.
Regarding the earlier application supposedly filed by the applicant on 18 June 2021, which bore a court stamp, the Judge found it improbable that it was filed because the applicant's affidavit stipulated that upon his arrival in South Africa he did not know where to go until he was advised by his countrymen. The Judge questioned why the applicant's affidavit indicated that he started visiting the RRO in May 2021, when on his version he only arrived in the country in June 2021. When counsel for the applicant indicated that this was an error, as the applicant had left Ethiopia in May 2021 and arrived in South Africa in June 2021, the Judge pointed out that the error was not corrected in the replying affidavit.
The Judge also dismissed a submission by counsel for the applicant that refusing to hear the matter urgently would deny him an opportunity to apply for an asylum permit, as he would be barred from applying once he was convicted for being in the country illegally in breach of the Refugees Act in the trial which would be conducted in a few days. She also paid no heed to counsel's submission that it was for the Refugee Status Determination Officer (RSDO) to determine the truthfulness of the applicant's version and reasons for his delay in due course. In a terse judgment, the High Court held that the urgency was self-created by the applicant as he had delayed evincing his intention to seek asylum. On that basis, the Court struck the matter from the roll with costs for lack of urgency.
Preliminary matters in this Court
Jurisdiction and standing
The applicant submits that his application engages this Court's jurisdiction. This is so, he contends, because it raises a constitutional issue in terms of section 167(7) of the Constitution as it concerns his right to freedom and security of the person contained
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Maya DCJ (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J concurring)
in section 12(1) [7] of the Constitution. He also argues that, in addition to standing in his own interest, he has standing in terms of section 38(d) [8] of the Constitution because there are thousands of similarly positioned asylum seekers who will benefit from certainty on the question of release from detention when an asylum seeker has evinced an intention to apply for asylum. The applicant's section 12 right is undoubtedly affected and this factor alone vests this Court with the jurisdiction to entertain the application which the respondents rightly concede.
Urgency
The applicant submits that his arrest and detention triggered the urgency of this matter. He submits that, given his unemployment, he acted as fast as reasonably possible to approach the courts. He contends that he cannot obtain relief in the ordinary course because he cannot apply for asylum while he remains in detention. His detention, he contends, is unlawful and should not be allowed to endure any longer. Although no conviction or date for deportation has been secured, there is an imminent threat of deportation and he will suffer great prejudice if the matter is not heard urgently, whereas the respondents will not be prejudiced if the matter is heard urgently.
The respondents dispute that the matter is urgent and insist on having it heard in the High Court in due course. But their approach completely overlooks the fact that the applicant was in detention, presumably since his arrest on 7 July 2022, awaiting
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Maya DCJ (Kollapen J, Madlanga J, Majiedt J, Makgoka AJ, Mathopo J, Potterill AJ, Rogers J and Theron J concurring)
imminent deportation once he is convicted for breaching the Immigration Act when the High Court struck his matter off the roll in September 2022. He remains in detention to date and still faces the same threats. That clearly renders the application urgent.
Leave for direct appeal
For his prayer for "direct access", the applicant relies on Mazibuko. [9] In that decision, which endorsed what was said in Bruce, [10] this Court held that for a matter to warrant bypassing other courts, the interests of justice requirement will ordinarily be met only where there are exceptional circumstances such as sufficient urgency or public...
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