Since South Africa's emergence as a refugee-receiving country a large body of jurisprudence has developed. We provide here an up-to-date Case Law Reader as a repository for cases about refugees and refugee-related law for academic and litigation purposes.
With your assistance we can continue to expand the Case Law Reader. We accordingly invite you to contact the Refugee Rights Unit at refugeelawclinic@uct.ac.za if you have case-related resources you think should be added.
The case listing below is in three sections - Constitutional Court, Supreme Court of Appeal and High Court.
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Constitutional Court
Larbi-Odam and Others v Member of the Eexecutive Council for Education (North-West Province) and Another (CCT2/97) [1997] ZACC 16; 1997 (12) BCLR 1655; 1998 (1) SA 745 (26 November 1997)
Synopsis: Discrimination Regulation regarding the Terms and Conditions of Employment of Educators - Limited to citizens - Discrimination - Unfair Discrimination against permanent residents - Citizenship - Characteristic of personhood not alterable by conscious action - Foreign citizens - Minority group with little political muscle.
Dawood and Another v Minister of Home Affairs and Others ; Shalabi and Another v Minister of Home Affairs and Others ; Thomas and Another v Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000)
Synopsis: marriage - right to marry and right to family life - despite the absence of a specific constitutional guarantee protecting family life, section 10 of the Final Constitution guaranteeing the right to human dignity protects the right of individuals to enter into a marriage relationship and to sustain such a relationship.
Minister of Home Affairs v Liebenberg (CCT22/01) [2001] ZACC 3; 2001 (11) BCLR 1168 ; 2002 (1) SA 33 (CC) (8 October 2001)
Synopsis: Legislation - Validity of - Regulations promulgated under Aliens Control Act 96 of 1991 - Confirmation of declaration of invalidity - Ministers exercise no more than subordinate, delegated authority when making regulations under Acts of Parliament or performing other ministerial duties - Regulations thus not Acts of Parliament.
Lawyers for Human Rights and Other v Minister of Home Affairs and other (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004)
Synopsis: Illegal foreigner - Definition - Physical presence in South Africa - Entitled to constitutional rights - Irrespective of whether here legally or not.
Union of Refugee Women and Others v Director, Private Security Industry Regulatory Authority and Others (CCT 39/06) [2006] ZACC 23; 2007 (4) BCLR 339 (CC) ; (2007) 28 ILJ 537 (CC); 2007 (4) SA 395 (CC) (12 December 2006) –
Synopsis: An appeal against a High Court ruling that s.23 (1) of the Private Security Industry Regulatory Authority Act was not unconstitutional to the extent that it only provided for the employment of South African citizens and permanent residents in the private security industry, to the exclusion of refugees who could not show good cause in terms of s.23(6) of the Act - The appeal was dismissed - It was held that the section is not discriminatory because the trustworthiness of nationals and permanent residents is easier to verify objectively.
President of the Republic of South Africa and Others v Quagliani; President of the Republic of South Africa and Others v Van Rooyen and Another; Goodwin v Director-General, Department of Justice and Constitutional Development and Others 2009 (4) BCLR 345 (CC)-
Synopsis: Extradition - extradition agreements - requirements for an extradition agreement to be validly concluded -Extradition Act 67 of 1962- International law - Requirement of section 231(4) of the Constitution that an international agreement be enacted into domestic law by national legislation in order to take effect - Separation of powers - between the Legislature and the Courts - procedural failures by a legislature
Minister of Home Affairs v Scalabrini Centre, Cape Town (735/12 & 360/13) [2013] ZASCA 134 (27 September 2013)-
Synopsis: Judgement - Refugee Reception Office - Closure - Review of the decision - Whether "administrative action" - Whether consistent with doctrine of legality.
Mail and Guardian Media Ltd and Others v Chipu N.O. and Others (CCT 136/12) [2013] ZACC 32; 2013 (11) BCLR 1259 (CC); 2013 (6) SA 367 (CC) (27 September 2013)
Synopsis: confidentiality of asylum applications - discretion of the RAB to allow access to its proceedings in appropriate cases - the limitation on the right to freedom of expression
Minister of Home Affairs v Rahim and Others (CCT124/15) [2016] ZACC 3; 2016 (3) SA 218 (CC); 2016 (6) BCLR 780 (CC) (18 February 2016)
Synopsis: The Constitutional Court agreed with the SCA that “it is an international norm that refugees and others caught up in migratory regulation have a peculiar status that differentiates them from those who are imprisoned by the criminal justice system.”- Found that the legality of the place of detention and the legality of the detention itself cannot be separated - “[f]or so long as a person is confined in a place not permitted by law his or her confinement is unlawful”.
Lawyers for Human Rights v Minister in the Presidency and Others (CCT120/16) [2016] ZACC 45; 2017 (1) SA 645 (CC); 2017 (4) BCLR 445 (CC) (1 December 2016)
Synopsis: The Court found that LHR did not provide any basis for it to conclude that the High Court had exercised its discretion unjudicially in making the adverse costs award - The Court noted that the High Court controls its own process, and does so with a measure of flexibility - Even where the litigant seeks to assert constitutional rights, the Court must always consider the character of the litigation and the litigant’s conduct in pursuit of it
Lawyers for Human Rights v Minister of Home Affairs and Others 2017 (5) SA 480 CC
Synopsis: held that persons arrested for the purpose of deportation in terms of section 34 of the Act enjoyed the protection and rights entrenched in sections 12 and 35(2) of the Constitution - be brought to court within 48 hours
Ruta v Minister of Home Affairs CCT02/18, [2018] ZACC 52.
Synopsis: persons who have not applied for asylum since their arrival in South Africa must be allowed an opportunity to go the nearest Refugee Reception Office to obtain an Asylum Seeker Permit and that they may not be punished for not having one
Ahmed and others v Minister of Home Affairs and another (People Against Suffering, Oppression and Poverty and others as amici curiae) | 2018 (12) BCLR 1451 (CC)
Synopsis: Immigration Directive 21 of 2015 — validity of directive — imposes blanket ban on asylum seekers applying for visas under Immigration Act 13 of 2002 — inconsistent with Immigration Act — invalid. Immigration Directive 21 of 2015 — validity of directive — prohibits asylum seekers from applying for permanent residence permits — inconsistent with regulation 23 of Immigration Regulations of 2014 — invalid.
Saidi and Others v Minister of Home Affairs and Others 2018 (4) SA 333 (CC)
Synopsis: The applicants were asylum seekers, who were denied extension of permits after they exhausted internal remedies of review and appeal against rejection of their applications for permit - They sought extension of permits during the process of judicial view of rejection of their applications - The court held that the word ‘may’ as used in s 22(3) of the Refugees Act did not grant the Refugee Reception Office any discretion over issuing permits - There was an obligation to extend the permit pending the outcome of a judicial application for refugee status - That interpretation better afforded an asylum seeker constitutional protection while awaiting the outcome of the application.
Gavric v Refugee Status Determination Officer, Cape Town and others (People against Suppression, Suffering, Oppression and Poverty as amicus curiae) | 2019 (1) BCLR 1 (CC)
Synopsis: Section 4 of the Refugees Act— Exclusion — Internal remedies — Unfounded application- Section 4(1)(b) of the Refugees Act — Non-political crime — Criteria.declaration of invalidity granted and suspended for 24 months — interim reading-in order granted.
Centre for Child Law v Director General: Department of Home Affairs and Others [2021] ZACC 31
Synopsis: Births and Deaths Registration Act 51 of 1992 — constitutionality of section 10 — section is unconstitutional 2 Section 9 of the Constitution — unfair discrimination — section 10 fails the Harksen test — unmarried father may give notice his child’s birth under his surname without consent of the mother
Abore v Minister of Home Affairs and Another [2021] ZACC 50
Synopsis: Refugees Act 130 of 1998 — applicability of provisions of the Refugees Amendment Act 11 of 2017 — date of intention to apply for asylum — principle of non-refoulement
Ashebo v Minister of Home Affairs and Others [2023] ZACC 16
Synopsis: The applicant was arrested and detained as an illegal foreigner in terms of the Immigration Act – The applicant had previously tried but failed to apply for asylum in the year since his arrival as the RRO was closed due to COVID-19 – The Court upheld the position that a delay in applying for asylum does not disqualify a claimant from such an application – The Court also held that an expression of an intention to apply for asylum does not entitle the applicant to be released from detention – The Court ordered the respondents to assist the applicant in applying for asylum, failing to do so the applicant must be released from detention.
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Supreme Court of Appeal
Minister of Home Affairs and Others v Watchenuka and Others (010/2003) [2003] ZASCA 142; [2004] 1 All SA 21 (SCA) (28 November 2003)
Synopsis: Applicants for asylum – right to undertake employment and to study - Right to human dignity - Freedom to engage in productive work important component of human dignity - Right to education, s 29(1) of Constitution - Freedom to study inherent in human dignity enshrined in s 10 of Constitution - Right to education not absolute, and capable of being limited in appropriate circumstances, for State cannot be obliged to permit any person to enter country and then to remain in order that he/she may exercise such right - But, where person concerned is child who is lawfully in country to seek asylum, no justification for limiting right so as to deprive him/her of opportunity for human fulfilment at critical period.
Jeebhai and Others v Minister of Home Affairs and Another (139/08) [2009] ZASCA 35; [2009] 3 All SA 103 (SCA) ; 2009 (5) SA 54 (SCA) (31 March 2009)
Synopsis: Immigration - Illegal foreigners - Arrest, detention and deportation of - Without a warrant - When permissible - Immigration Act 13 of 2002 - Permissible where - Sections 8 and 41(1) - Detention - Detention pending removal from Republic - Section 34 - Review and appeal procedures - Section 8 - Non-compliance - Whether non-compliance with such procedures rendering detention unlawful - Contempt of court.
Arse v Minister of Home Affairs and Others (25/2010) [2010] ZASCA 9; 2010 (7) BCLR 640 (SCA) ; [2010] 3 All SA 261 (SCA); 2012 (4) SA 544 (SCA) (12 March 2010)
Synopsis : Asylum seeker permit - On grant of, recipient ceasing to be illegal foreigner - Allows holder to 'sojourn' - This disallowing detention - Minister may not proceed against individual who has applied for asylum until decision made on his application or his rights of review or appeal exhausted.
Abdi v Minister of Home Affairs (734/10) [2011] ZASCA 2 (15 February 2011)
Synopsis: Appellants granted refugee and asylum seeker status in South Africa prior to departing for Namibia without informing authorities – deported from that country to their country of origin via South African airport – held in Inadmissible Facility and refused entry by first and second respondents – entitled to be re-admitted to South Africa with retention of their former status – failure to allow appellants entry criticised.
Bula and Others v Minister of Home Affairs and Others 2012 (4) SA 560 (SCA)
Synopsis : Intention to apply for asylum - If detained individual indicates intention to apply for asylum, he is entitled to be freed and to be issued with permit valid for 14 days, in which he must approach refugee reception office to complete asylum application - Individual need not indicate intention immediately on encountering immigration officials - At reception office, it is for refugee reception officer to assist individual to complete application, which is given to refugee status determination officer to decide
Director General: Department of Home Affairs v Dekoba 2014 (SCA)
Synopsis: The respondent’s asylum seeker permit was revoked due to her alleged nonappearance at the appeal hearing – The Court held that the disposition of the appeal was void as it relied on the erroneous assumption that the respondent had not attended her hearing – This was inconceivable to the Court as the respondent had regularly renewed her permit at the designated locations over several years – The respondent was thus still an asylum seeker entitled to an asylum seeker permit for the duration of her status determination or any appeal or review thereof – The appeal was dismissed and costs awarded.
Somali Association of South Africa v Limpopo Department of Economic Development, Environment and Tourism (48/2014) ZASCA 143 (26 September 2014)
Synopsis: Asylum seekers and refugees’ entitlement to apply for licences to trade in spaza and tuck-shops – no blanket prohibition against self-employment either in terms of the Constitution or applicable legislation – s 22 of the Constitution not a bar – right to dignity implicated – vulnerable position of asylum seekers and refugees considered – South Africa’s international obligations noted.
Minister of Home Affairs & others v Somali Association of South Africa & another (831/13) [2015] ZASCA 35 (25 March 2015)
Synopsis: Refugees Act 130 of 1998 – closure of refugee reception office – decision challenged for want of consultation with interested parties and rationality – remedy –authorities ignoring previous court orders.
Rahim and others v Minister of Home Affairs 2015 (4) SA 433 (SCA)-
Synopsis: Delict – Claim for damages – Unlawful arrest and detention – Relevant factors are the circumstances under which the deprivation of liberty took place, the conduct of the defendants and the nature and duration of the deprivation. [2] Immigration – Detention of illegal foreigners pending deportation in terms of section 34(1) of the Immigration Act 13 of 2002 – Lawfulness – Detention of illegal foreigners can only take place as prescribed by section 34(1) ie in the manner and at a place determined by the Director-General – In terms of the principle of legality, it had to be shown that the Director-General had made the determinations contemplated in section 34(1) – Failure to establish that determination had been made rendered detentions unlawful.
Head of Department: Western Cape Education Department & another v S (Women’s Legal Centre as Amicus Curiae) (1209/2016) [2017] ZASCA 187 (13 December 2017)
Synopsis: [exemption fee] – Interpretation and Application of s40(1) of the South African Schools Act 94 of 1996. - subsection provides for joint and several liability – fee-exemption applications can, however, be processed in terms of the Act and the Regulations to enable single parents separated from their partners or divorced from a spouse to have their applications assessed in relation to their own personal circumstances and not on combined income.
Irankunda and Another v Director of Asylum Seeker Management: Department of Home Affairs and Others (with Scalabrini Centre of Cape Town intervening as Amicus Curiae) (821/2022) [2024] ZASCA 87 (5 June 2024)
Synopsis: The appellants were Burundian nationals who had previously applied for asylum in 2009 and were rejected – They sought to re-apply for asylum in 2018 on the basis that the situation in Burundi had changed, rendering them sur place refugees – The SCA found that the Western Cape High Court’s refusal to consider the sur place claims was a reviewable error – The Court held that asylum seekers are permitted to re-apply for asylum after their initial application was unsuccessful as long as there is a lawful basis to do so and there are new grounds for the claim – The Court held that refugees sur place need not return to their country of origin to await the outcome of their application – The appeal succeeded.
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High Court
Pembele and others v The Appeal Board for Refugee Affairs and others, Order of 10 December 1996
Synopsis: Immigration - Removal from the Republic in terms of s 44 of Aliens Control Act 96 of 1991 - Detention of person in terms of s 44 - Application for interdict de homine libero exhibendo for person's release - Conduct of officials of Department of Home Affairs and of police - Such officials of department cannot take steps to deprive person of liberty and then place themselves, even bona fide, beyond reach of administration of justice when required to justify detention.
Kabanga And Another V South African Airways t/a Interline And Others 2003 (1) SA 217 (W)
Synopsis: Immigration - Prohibited person - Persons attempting to enter Republic without valid passport and visa - Aliens Control Act 96 of 1991 - Sections 11(1), read with 11(3) - (5), 6(1), 7(1), 9(1) and 52(1).
Centre For Child Law And Another V Minister Of Home Affairs And Others 2005 (6) SA 50 (T)
Synopsis: Urgent application - Unaccompanied foreign children detained at the Lindela Repatriation Centre - Children held together with adults - Deportation interdicted - Rights of the Child - Curator ad litem appointed.
Van Garderen N.O. v The Refugee Appeal Board and others 2007 –
Synopsis: Judicial review - Standard of proof - "Real risk" test too high - Appellant must establish a reasonable degree or possibility that his fear is well founded
Adela Mbalinga Akwen v The Minister of Home Affairs and Another TPD, 8 February 2008 (Case No. 46875/07)
Synopsis: Past Persecution - Medical evidence - Post Traumatic Stress Disorder - Compelling reason to refuse to avail oneself of the protection of the country of origin.
Kiliko and Others v Minister of Home Affairs and Others (2739/05) [2008] ZAWCHC 124 (4 March 2008)-
Synopsis: Structural interdict - Return report on progress
Discovery Health Limited v CCMA & others [2008] 7 BLLR 633 (LC)
Synopsis: Contract of employment - Unlawful contracts - Employer terminating contract with foreigner after learning he was working without permit - Contract, though unlawful, not void ab initio and termination constituting dismissal - Foreigners - Foreigner employed without work permit an employee, and entitled to all rights afforded employees under labour legislation and Constitution.
Khan v Immigration officer: Kimberly Region, Department of Home Affairs (1226/2008) [2008] ZANCHC 41 (19 September 2008)
Synopsis: Administrative action - Deportation - Illegal foreigner - Fraudulent residence permit - No case for release - Application dismissed.
Thomasso and others v The Minister of Home Affairs and others, Settlement Agreement –
Synopsis: Extension of permits from other offices - refusal agreed to be unlawful.
Bhati v Minister of Home Affairs (500/09) [2009] ZAECPEHC 16 (28 April 2009)
Synopsis: Application for asylum rejected - Temporary residence permit - Failure to establish renewal.
S v Daribo [2009] ZAFSHC 60 (21 May 2009) –
Synopsis: Judgment - Offence in terms of the Refugees Act - Review of sentence.
Aruforse v Minister of Home Affairs and Others (2010/1189) [2010] ZAGPJHC 59; 2010 (6) SA 579 (GSJ) ; 2011 (1) SACR 69 (GSJ) (25 January 2010)-
Synopsis: Displaced persons - Xenophobic attacks - Temporary Safety Sites - Eviction - PIE application and procedures - Particularly vulnerable group - Unlawful occupation.
Hassani and another v The Minister of Home Affairs and others-
Synopsis: Detention - Deportation - Arrest while transiting to England -Facilitation of application for asylum
410 Voortrekker Road Property Holdings CC v The Minister of Home Affairs and others
Synopsis: Interdict - Suspension - Interdict granted against government parties in breach of zoning laws and land use restrictions - Government parties using premises in question as refugee reception centre - Government parties obliged to establish refugee reception centres.
Osman v Minister of Safety and Security and Others (EC09/2008) [2010] ZAEQC 1 (15 December 2010) –
Synopsis: no assistance from police during looting of foreign national’s shop - Court found that there was no substantial evidence to prove applicant’s discrimination - held that the police had no positive obligation to protect the shops of the foreign nationals during a xenophobic attack.
Consortium for Refugees and Migrants in South Africa and others v Minister of Home Affairs and others (Joburg Closure case)
Synopsis: Judgment - Refugees Act 130 of 1998 - Refugee Reception Office - Closure - Whether made decision to close - Review of the decision - Decision not to establish a refugee reception office is "administrative action" – PAJA applicable.
Fikre v Minister of Home Affairs and Others (2012 (4) SA 348 (GSJ)) [2011] ZAGPJHC 256; [2011] ZAGPJHC 36 (11 May 2011)
Synopsis: Review of detention -Continued detention pending outcome of condonation application - Whether justified.
Phale v Minister of Home Affairs and Others (22852/11) [2011] ZAGPPHC 71; [2011] 4 All SA 103 (GNP) (20 May 2011)
Synopsis: Immigration - Illegal alien - Warrant of arrest - Validity.
Bhuiyan and Others v Minister of Home Affairs and Another (2585/2011, 2599/2011) [2011] ZAECPEHC 40 (15 September 2011)
Synopsis: Judgement - Application for release from detention - Decision later overturned by the SCA in Ersumo v The Minister of Home Affairs and others.
Tsebe and Another v Minister of Home Affairs and Others, Phale v Minister of Home Affairs and Others (27682/10, 51010/10) [2011] ZAGPJHC 115; 2012 (1) BCLR 77 (GSJ); [2012] 1 All SA 83 (GSJ) (22 September 2011)
Synopsis: Judgement - Extradition - Risk of death penalty being imposed
Katshingu v The Standing Committee for Refugee Affairs and others
Synopsis: - Administrative law - Substitution of Decision - Lawfulness - Procedural fairness - Interpretation services - Judicial notice of UNHCR reports - s 3(b) claim.
Alam v Minister of Home Affairs (3414/2010) [2012] ZAECPEHC 12; 2012 (5) SA 626 (ECP) (16 February 2012)
Synopsis: while a person’s application for refugee status, or an appeal or review of the refusal of his or her application, was being considered by the authorities, he or she was lawfully present in South Africa.
Otshudi v Minister of Home Affairs and Others (12/05018) [2012] ZAGPJHC 15 (23 February 2012)
Synopsis: Detention for the purposes of deportation - Asylum claim rejection upheld by RAB - Having exhausted internal remedies and no further proceedings pending - falls to be dealt with in terms of the provisions of the Immigration Act - Contempt of court - minister and officials prevented from deporting illegal foreigner whilst proceedings pending as they may be guilty of contempt of court - Detention pursuant to s 34 of Immigration Act - calculation of initial period of 30 days and extended period of 90 days to be cumulative Suspension of 120 day period allowed by Act for detention for purposes of deportation in the event of legal proceedings preventing Department from deporting illegal foreigner.
Ssemakula and Others v Minister of Home Affairs and Others (4139/11) [2012] ZAWCHC 398 (5 March 2012)
Synopsis: Refusal to issue asylum permit without possession of an asylum transit permit - Proof of existence of policy - Vulnerable group - Declaratory relief.
Scalabrini Centre, Cape Town and Others v Minister of Home Affairs and Others (11681/12) [2013] ZAWCHC 49; 2013 (3) SA 531 (WCC); [2013] 2 All SA 589 (WCC); 2013 (7) BCLR 819 (WCC) (19 March 2013)
Synopsis : Final relief - Reviewing and setting aside the decision to close the Cape Town Refugee Reception Office to new applications for asylum after 29 June 2012 - Directing that the Department ensure that by 1 July 2013 a Refugee Reception Office is open and fully functional within the Cape Town Metropolitan Municipality at which new application for asylum can be made
Ndikumdavyi v Valkenberg Hospital and Others (C970/2010) [2012] ZALCCT 15; [2012] 8 BLLR 795 (LC); (2012) 33 ILJ 2648 (LC) (23 April 2012)
Synopsis: Foreign Health Professional- formal refugee- termination of employment on basis that permanent contract void ab initio in light of policy of national health department and provisions of the Public Service Act-interpretation of “dismissal” where par delictum rule applies.
S v Gavric (A138/2012) [2012] ZAWCHC 161 (23 May 2012)
Synopsis: Identification - Failure to produce documents - Whether reasonable suspicion that plaintiff was an illegal foreigner - Whether police took reasonable steps to assist in the verification process - Unlawful detention.
Scalabrini v Minister of Home Affairs, Order of 25 July 2012
Synopsis: Refugee Reception Office - Closure of - Director-General need consult Standing Committee before disestablishing an Office.
Dorcasse v Minister of Home Affairs and Others (2012/17771) [2012] ZAGPJHC 184; 2012] 4 All SA 659 (GSJ) (5 October 2012)
Synopsis: Judgment - Urgent relief sought - Detention - Immigration Act 13 of 2002 - Unlawful detention in excess of 30 days - Onus on person detaining to justify extensions - Immediate release ordered.
Katabana v Chairperson of Standing Committee for Refugee Affairs and Others (25061/2011) [2012] ZAGPPHC 362 (14 December 2012)
Synopsis: judicial review - declared that the applicant is a refugee, is entitled to asylum in the Republic of South Africa as contemplated by section 3 of Act 130 of 1998 - Applicant, therefore, claims that he fled, owing to a well- founded fear of being persecuted by reason of his religion (witchcraft is inextricably linked to this category), and further that the total breakdown of law meant that he was compelled to leave his place of habitual residence in order to seek refuge.
Lukombo v Minister of Home Affairs and Others (2013/13552) [2013] ZAGPJHC 142 (13 June 2013)
Synopsis: Detention for the purposes of deportation - Fraudulent identities given to the Department.
Rahim and Others v Minister of Home Affairs (2777/2010; 3707/2010) [2013] ZAECPEHC 34 (9 July 2013)
Synopsis: Judgement - Whether plaintiffs constitute illegal foreigners - Whether prison or police cell a place determined by Director-General for foreigners' detention.
Mubala v Chairperson of the SCRA 2013 (WCC)
Synopsis: The applicant sought an order reviewing and setting aside the first and second respondents’ decision to reject his asylum application as manifestly unfounded – The Court held that there is ample evidence of the situation in the DRC (applicant’s home country) and that the applicant clearly qualified for refugee status – The Court reviewed and set aside the impugned decisions in terms of PAJA and awarded costs.
Harerimana v Chairperson of the Refugee Appeal Board and Others (10972/2013) [2013] ZAWCHC 209; 2014 (5) SA 550 (WCC) (11 December 2013)
Synopsis: Judgment - Administrative law - Administrative action - Review - Discretion of court - Remedies - Substitution - Whether present case exceptional one in which court may substitute administrator's decision with its own - Administrator opposing review of its decision - Opposition creating appearance of bias - Unfair to remit matter to it - Promotion of Administrative Justice Act 3 of 2000, s 8(1)(c)(ii) - Immigration - Refugee - Refugee Appeal Board - Review - Board opposing review of its decision - Board's opposition creating appearance of bias - Consequently unfair to remit matter to it - Court substituting its own decision for that of Board - Refugees Act 130 of 1998
Bahamboula and Others v Minister of Home Affairs and Others (1476/14) [2014] ZAWCHC 69; 2014 (9) BCLR 1021 (WCC) (8 May 2014)
Synopsis: court ruled that the practice to not extend an asylum seeker permit more than 12 times was arbitrary and unlawful.
Hussein and Another v The Additional Magistrate, Cape Town and Others 2014
Synopsis: Urgent matter Rule 6(12) - Detention - Immigration Act 13 of 2002 - Decision to confirm warrant of detention reviewed and set aside - Respondents directed to release as soon as reasonably possible - Applicant directed to attend Refugee Reception Office within 14 days and apply for asylum.
South African Human Rights Commission and Others v Minister of Home Affairs: Naledi Pandor and Others (41571/12) [2014] ZAGPJHC 198; 2014 (11) BCLR 1352 (GJ); [2014] 4 All SA 482 (GJ) (28 August 2014)
Synopsis: Judgment - Immigration Law - detained at detention centre as illegal foreigners - applicant sought an order declaring respondents' detention of 19 applicants and other detainees unconstitutional and unlawful - applicants detained longer than was legally allowed in terms of the Immigration Act - detention declared unconstitutional and unlawful - respondents' directed to take reasonable and all necessary steps to ensure unlawful practices are terminated.
Consortium For Refugees and Migrants in South Africa v President of the Republic of South Africa and Others (30123/2011) [2014] ZAGPPHC 753 (26 September 2014)
Synopsis: Reviewing and setting aside the decisions of the Standing Committee and the RSDO to rejection the applicant's asylum claim as manifestly unfounded - Substitution - Directed that the applicant be granted formal refugee status.
Makumba v Minister of Home Affairs and Others (6183/14) [2014] ZAWCHC 183 (3 December 2014)
Synopsis: Review of rejection as manifestly unfounded - Refugees Act 130 of 1998 - Promotion of Administrative Justice Act 3 of 2000 - Whether Applicant was informed of her right to make written submissions to the Standing Committee for Refugee Affairs - Not the duty of a Refugee Status Determination Officer to inform an applicant of the grounds on which they could apply for refugee status - Applicant omitted true reasons for fleeing - The decision was correctly made on the evidence before the Refugee Status Determination Officer - Whether exceptional circumstances present permitting substitution - Remedies - Principle of non-refoulement - Whether there is an obligation to reconsider new evidence - Credibility of the Applicant - Decision set aside and remitted to the Refugee Status Determination Officer.
Bolanga v Refugee Status Determination Officer and Others (5027/2012) [2015] ZAKZDHC 13 (24 February 2015)
Synopsis: Reviewing and setting aside the Refugee Appeal Board to rejection the applicant's asylum claim as unfounded - Directed that the applicant be granted formal refugee status.
Mayemba v Chairperson of Standing Committee for Refugee Affairs and Others (19960/2014) [2015] ZAWCHC 86 (10 June 2015)
Synopsis: applicant ordered to submit a fresh application for asylum, applicant was not granted a substitution order but was ordered to submit a fresh application within two months of court order.
Mubake and Others v Minister of Home Affairs and Others (72342/2012) [2015] ZAGPPHC 1037; 2016 (2) SA 220 (GP) (9 July 2015)
Synopsis: the definition of a dependant in terms of Section 1 of the Refugees Act was extended to include the provision for separated children as dependents. Hence if a separated child is in the care of an uncle or cousin who is an asylum seeker for instance, the child may obtain an asylum seeker permit as they are in that person's care.
Radjabu v Chairperson of the Standing Committee for Refugee Affairs and others [2015] 1 All SA 100 (WCC)
Synopsis: Refugees Act 130 of 1998 – Section 24(4) Act requires that when an application for asylum is rejected for being manifestly unfounded, written reasons have to be furnished to the applicant within five working days after the date of the rejection and a copy of the reasons have to be submitted to the Standing Committee for Refugee Affairs within 10 working days after the date of the rejection. Court held that the proceedings before the status determination officer were unlawful because a proper interpreter was not used and because the officer did not effectively undertake the inquisitorial role that the statute contemplates – Decision to uphold the determination of the refugee status determination officer without such further investigation was one that a reasonable decision-maker could not have.
Somali Association of South Africa v Limpopo Department of Economic Development, Environment and Tourism
Synopsis: Whether right to work includes right to operate a business - S 10 Right to dignity - S 22 right to freedom of trade, occupation and profession interpreted to exclude non-citizens - Justifiable limitation to the application of s 22 - The Refugees Act 130 of 1998 could not have intended an interpretation that is unconstitutional - Rights of asylum seekers and refugees distinguished.
Tshiyombo v Members of the Refugee Appeal Board and Others (13131/2015) [2015] ZAWCHC 190 (17 December 2015)
Synopsis: Judgement is a warning to public officials involved that maladministation within litigation may result in Departments being liable for costs. Failure to act by Departments may result in courts seeking outside remedial intervention such as using mechanisms available in terms of the Constitution.
Mohamed v Minister of Home Affairs and Others (A287/2015) [2016] ZAWCHC 13 (12 February 2016)
Synopsis: decision of the SCRA had to be communicated to the appellant as the affected party for the SCRA to be functus officio, the RSDO’s failure to inform the appellant before his late written submissions were delivered, has the effect of making the SCRA not functus officio
Chapelgate Properties 1022 CC v Unlawful Occupiers of Erf 644 Kew and another [2016] 3 All SA 508 (GJ)
Synopsis: Rights to emergency temporary housing of occupiers who are not South African citizens or not lawfully entitled to reside in South Africa - Categories of foreigners entitled to reside or sojourn in the country determined by Immigration Act 13 of 2002 and Refugee Act 130 of 1998 - However special protection of children and disabled persons who are illegal foreigners - Reconciling status of an illegal foreigner with right to continued indefinite accommodation by affording a reasonable time to regularise status failing which the City may apply to court on notice for an order declaring that such person not entitled to continue receiving temporary accommodation.
Scalabrini v Minister of Home Affairs and Others 2016 (WCD)
Synopsis: Department of Home Affairs was ordered to reopen and to maintain a fully functional refugee reception office.
N v Chairperson of the Standing Committee for Refugee Affairs and Others (15376/16) [2017] ZAWCHC 57 (16 May 2017)
Synopsis: Court held that the applicant had fear of being prosecuted due to her political opinion. Court held that the decision that found the applicant's asylum application as being unfounded should be set aside and the applicant must be granted asylum.
Saddiq v Department of Labour (Vereeniging) and Others (unreported judgment of the Equality Court for the Sub-District of Emfuleni, held at Vereeniging, Case No: EQ04/2017)
Synopsis: Issue was whether the Department of Labour’s refusal to pay the Asylum Seeker his UIF, despite having accepted his UIF contributions, was in effect an abuse of his right to dignity. The court found that the Department of Labour’s conduct was unfair and discriminatory toward the Asylum Seeker, on the basis of a systematic disadvantage. The court ordered the Department to pay the Asylum Seeker their UIF claim, together with an award of damages claimed by him, a tendered apology and legal costs. In addition, the court ordered the Department to correct its computer systems to allow any asylum seeker who contributed to the fund to be compensated fairly, once their claims are lodged.
Musanga and Others v Minister of Labour and Others (unreported judgment of the North Gauteng High Court (Pretoria), Case No: 29994/18
Synopsis: The High Court found that the requirement that an employee was to submit a valid SA ID number to register with the UIF was unfairly discriminatory against foreign nationals.
FNM v Refugee Appeal Board and others [2018] 4 All SA 228 (GP)
Synopsis: Decision of Refugee Appeal Board not rationally connected to the reasons given for it, as contemplated in section 6(2)(f)(ii)(dd) of the Promotion of Administrative Justice Act 3 of 2000, and was so unreasonable that no reasonable person could have so exercised the power, as contemplated in section 6(2)(h) – Substitution by court of decision by Refugee Appeal Board.
Kalisa v Chairperson of the Refugee Appeal Board and Others (17413/2017) [2018] ZAWCHC 156; 2020 (4) SA 256 (WCC) (19 November 2018)
Synopsis: Court set aside decision by the RAB , the applicant’s application for asylum was to be reconsidered having regard to the intervening events that have taken place. Court also highlighted the need to consider the principle of non-refoulement and the circumstances in Burundi and Rwanda.
AI and Others v Director of Asylum Seeker Management: Department of Home Affairs and Others (22059/18) [2019] ZAWCHC 114
Synopsis: Sur-place case - Court held that applicants had the right to be issued with s22 permits, pending relief - Court held that Immigration Act does not trump the Refugees Act as this would be contrary to Ruta which stated that the statutes must be read together.
A E Applicant and CHIEF EXECUTIVE OFFICER HELEN JOSEPH HOSPITAL et al Respondents , 19/15448
Synopsis: Court held that policy of refusing placement of asylum seekers and or refugees into the chronic renal treatment programme, kidney analysis, kidney and renal transplant was not inconsistent with the Bill of Rights in the constitution.
Centre for Child Law and Others v Minister of Basic Education and Others (2840/2017) [2019] ZAECGHC 126; [2020] 1 All SA 711 (ECG); 2020 (3) SA 141 (ECG) (12 December 2019)
Synopsis: court confirmed that everyone has the right to basic education regardless of their status or their ability to provide proof of identity through the production of a birth certificate or other official documentation. The state respondents were also directed to admit all children not in possession of an official birth certificate into public schools in the relevant province and where a learner is unable to provide a birth certificate, the principal of the relevant school is directed to accept alternative proof of identity i.e. an affidavit or sworn statement deposed to by the guardian/parent/care-giver of the learner that fully identifies the learner.
City of Cape Town v JB and others [2020] 2 All SA 784 (WCC)
Synopsis: Immigration – Refugees – Rights of refugees – Demand by refugees to be moved from their ordinary places of residence in the country to another area where they would be provided with accommodation by the government, or be taken out of the country at State expense and be moved to another country to improve their standard of living – Insofar as demands had nothing to do with the country’s responsibilities to give effect to international legal instruments, principles and standards or national prescripts to regulate matters connected with refugees, such demands were refused.
Scalabrini Centre of Cape Town and Another v Minister of Social Development and Others (22808/2020) [2020] ZAGPPHC 308; 2021 (1) SA 553 (GP) (18 June 2020)
Synopsis: Court ordered that people who hold asylum-seeker and special permit status in South Africa, whose documents were valid at the start of the National State of Disaster will be able to apply for the Covid-19 Social Relief of Distress grant (‘SRD grant’).
Naki and Others v Director General: Department of Home Affairs and Another (2020)
Synopsis: the court ordered that the Birth and Deaths Registration Act must be read to mean that parents must show valid documentation to register their child’s birth ‘where possible’. The Naki judgement also allows single fathers to register births of their children.
Mapingure v Chairperson standing Committee for Refugee Affairs and Others (2727/2019) [2021] ZAECPEHC 18 (30 March 2021)
Synopsis: Court held that if applicant for asylum does not show a reasonable proof of persecution, or negligently misrepresents certain facts, court may deem the decision by RSDO officer as reasonable.
Shanko v Minister of Home Affairs and Another; Shambu v Minister of Home Affairs and Another; Bogala v Minister of Home Affairs and Another (32620/2021; 32621/2021; 32622/2021) [2021] ZAGPJHC 857 (26 July 2021)
Synopsis: The applicants were Ethiopian nationals who failed to apply for asylum upon their entry as the RRO was closed due to the COVID-19 lockdown – The applicants were subsequently arrested and detained pending deportation – The Court held that expressing an intention to apply for asylum does not entitle the applicants to be released from detention – The Court held that the applicants had to be given an opportunity to show good cause for their entry at a place other than a port of entry and that such an entry did not bar them from applying for asylum – The Court interdicted the respondents from deporting the applicants and ordered the respondents to assist in the applicants’ asylum applications.
Rafoneke v Minister of Justice and Correctional Services and others (3609/2020) [2021] ZAFSHC (16 September 2021); Tsuinyane v Minister of Justice and Correctional Services and others (4065/2020) [2021] ZAFSHC (16 September 2021)
Synopsis: Legal Practice Act 28 of 2014 — Foreign persons neither citizens nor permanent residents in South Africa — ability to practice as legal practitioners — sections of the Legal Practice Act unconstitutional to the extent that they exclude foreigners from enrolment as non-practising legal practitioners.
Mohamud and Others v Minister of Home Affairs and Another [2023] ZAGPPHC 333
Synopsis: Applicants had been granted temporary asylum seeker permits – Their applications for asylum and subsequent appeals were rejected – Applicants applied for judicial review which was still pending and sought the extension of their asylum seeker permits – The applicants were ordered to serve their applications for judicial review on the State Attorney – The Director of Home Affairs was ordered to extend the applicants’ permits until finalization of the review applications.