Court dismisses application by foreign nationals challenging their detention

The Gauteng High Court, Johannesburg, has dismissed an application by six foreign nationals to declare their detention at the Modderbee and Boksburg Correctional Centres unlawful and against immigration and refugee Acts.

Degefa Sugebo Lembore (Lembore), Teketel Tumire Hajiso (Hajiso), Temesgen Matiwos (Matiwos), Thomas Godiso (Godiso) are Ethiopian nationals, while Aden Ahmed Osman (Osman) and Abdi Osman Yusuf (Yusuf) are Somalian nationals.

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They were arrested for allegedly entering and staying in South Africa in contravention of the Immigration Act.

The applicants lodged an application on an urgent basis, seeking to interdict Home Affairs Minister Aaron Motsoaledi, Minister of Justice and Correctional Services Ronald Lamola and the two centres in which they were held, from detaining, prosecuting and deporting them until their status had been lawfully and finally determined in terms of the Refugees Act.

They also sought declarators that they are entitled to remain lawfully in the country until their applications for refugee status are finally determined in terms of the same Act.

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The Ethiopian nationals told the court that they were persecuted by the ruling party in their country for their political and religious beliefs due to their mobilisation efforts as members of the Ethiopia People’s Revolutionary Party, an opposition political party.

They alleged the ruling party had terrorised, persecuted, tortured and killed members of their political party, including their family members.

This caused them to fear for their lives and led to their escape to seek refuge in any country.

They left Ethiopia on different occasions, and passed through Kenya, Zambia, Malawi and Zimbabwe. They allegedly entered South Africa unlawfully through the Zimbabwe border.

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They argued that instead of entering through an official port of entry, they “jumped” the border because they were not in possession of passports and feared being arrested and returned to Ethiopia if they entered through an official port of entry.

Before they could apply for asylum, they were arrested, and tried in vain to explain to the arresting officers that they were asylum seekers and wanted to be given an opportunity to apply for asylum.

Osman and Yusuf, the Somali nationals, also told the court they fled Somalia as a result of bombing incidents by terrorist organisations.

While they do not remember the dates they escaped, they used the same path as the Ethiopian nationals.

They were arrested last September.

In its judgment, the court declared their detention lawful, saying it did not violate section 2 of the Refugees Act 130 of 1998.

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“The mere expression of an intention to apply for asylum does not trigger the protections in section 2 of the Refugees Act 130 of 1998 until good cause for the illegal entry and stay is shown – Refugees Act 130 of 1998 – section 21(1B) – requirement to show good cause for illegal entry and stay in South Africa is disjunctive to application for asylum – regulation 8 (3) – requirement to show good cause for illegal entry into South Africa before being permitted to apply for asylum is consistent with Article 31 of the 1951 United Nations Convention Relating to the Status of Refugees – protection in section 2 of the Refugees Act 130 of 1998 begins when application for asylum has been made,” reads the judgment.

The court also found that in all instances, the immigration official conducting the interview found that the applicants had failed to show good cause regarding their illegal entry into the country.

“Having heard argument from the parties’ legal representatives, we dismissed the application. The primary reason for the dismissal was that the relief sought in the amended notice of motion was substantively different to what was sought in the initial notice of motion and amounted to a new urgent application within the existing urgent application. This, in our view, was impermissible as it amounted to a new and completely different application.

“Furthermore, the relief sought was a substantive review of the good cause interview processes. Clearly such a review could not be entertained without the full record of those processes.”

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The respondents were, however, directed, “to the extent necessary”, to take all reasonable steps, within 60 days, to afford the applicants an opportunity to show good cause, and to allow the whole process of any review or appeal, in the event where good cause is not established, to unfold until it is finally determined.