March and March “aftershock” floods Joburg court in asylum cases

Anti-immigrant protesters make their way through the Johannesburg CBD on 30 June. Archive photo: Ihsaan Haffejee

• Cases are swamping the High Court in Johannesburg motion roll in the wake of anti-immigrant protests.
• Recently, the Constitutional Court ruled that asylum seekers cannot be deported if they have not properly accessed the asylum system.
• But Judge Mandlenkosi Motha said releasing undocumented people only for them to be re-arrested was “the height of folly” and could perpetuate corruption and exploitation.
• He ordered Home Affairs to send officials to Lindela Repatriation Centre or to transport detainees to a refugee reception office to complete the necessary processes.

The Gauteng High Court in Johannesburg’s motion roll is being swamped by urgent matters involving undocumented foreign nationals fighting their deportations following their arrests – an “aftershock” of March and March’s Abahambe (“they must leave”) campaign.

Judge Mandlenkosi Motha said there were nearly 60 applications on his roll last week (17 to 21 August), brought by undocumented immigrants at Lindela Repatriation Centre. 21 of these cases proceeded, in which undocumented Ethiopian, Congolese and Nigerian nationals were fighting their deportation. They had not been interviewed by the Refugee Reception Office (RRO) for “one reason or another”.

In a judgment handed down on Tuesday, Judge Motha said it would be “the height of folly” to release undocumented people back into society to face re-arrest.

He said such “catch and release” procedures were undignified, perpetuated corruption, and exposed foreign nationals to financial exploitation.

He also said, “The expression of an intention to apply for asylum is no reason to release an undocumented foreign national back into society under the hope that within ten or 15 days they will present themselves to the RRO to apply for asylum.”

Instead, he stopped Home Affairs from deporting them and ordered the department to send immigration officers and refugee officials to Lindela to process them, or to bus them to the nearest RRO for the “necessary processes”.

In July, the Constitutional Court ruled that asylum seekers cannot be deported before they have properly accessed the asylum system. This judgment, Judge Motha said, created a babelic lacuna (a confusing, fragmented legal or linguistic gap).

The court declared sections of the Refugees Act, which allowed for immigration officials to deport an asylum seeker if they are in the country without a transit visa, unconstitutional. A transit visa is issued at a port of entry to allow a person to travel to a refugee reception centre and apply for asylum. For various reasons, many asylum seekers never obtain such a visa before showing up at a refugee reception centre.

At various stages of the process, the law would require the applicant to provide “good cause”, “valid reasons” or “compelling reasons” for not having a visa. But this was not defined, “creating a real risk of arbitrary and inconsistent decision-making” by preventing an asylum seeker from proceeding to a merits-based determination, the apex court ruled.

The court also ruled that provisions of the act violated the international legal principle of “non-refoulement”, which prohibits governments from sending people back to countries where they face persecution or danger.

Judge Motha said the apex court had not explained what “a merits-based determination” meant for the benefit of the lower courts, “which are on the front lines”.

“The reality is that the lower courts are caught in a Catch-22, damned if they rule to release and damned if they rule otherwise.”

Judge Motha said that despite the seriousness of the issues and the number of cases, Home Affairs was a “no show” until the court insisted on their presence.

However, he thanked Mfundo Ngozwana, the head of the Tshwane RRO, for his undertaking in court to consider establishing an RRO at or near Lindela.

He said after listening to the submissions from all parties, “it became evident and most concerning that the views of organisations such as [Operation] Dudula and March and March were not before the court despite representing a sizeable sector of South African society”.

“It appears the voice of the most resourced carries the day. The views and opinions of certain well-resourced NGOs and NPOs are always taken on board, perhaps rightly so,” said the judge. “Ultimately, it is imperative that courts avoid an echo chamber at all costs. To ignore the views of the impoverished and downtrodden members of society does not augur well for the future, to say the least.”

He ordered the respondents to pay the costs of all the applications.

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