S A v Minister of Home Affairs and Another; S J v Minister of Home
Affairs and Another; B I v Minister of Home Affairs and Another
Project code
URL https://lawlibrary.org.za/akn/za-gp/judgment/zagpjhc/
2023/178/eng@2023-03-14
Citations [2023] ZAGPJHC 178 (14 March 2023)
Country South Africa
Date of judgment 14 March 2023
Court High Court
Location Gauteng, Johannesburg
Court jurisdiction Appellate
Status Asylum seekers
Nationality/ Nationality Identity Stateless
statelessness documents
N/A N/A N/A
Reason for fleeing N/A
Migration corridor Countries of origin Country Country of
of transit destination
N/A N/A South Africa
Return/Repatriation N/A
Keyword(s): Asylum seeker, illegal foreigner, asylum, asylum
transit visa, asylum permit, non-refoulement,
detention, administrative detention, imprisonment
Case type Appeal
Result Upheld
Flynote Protection of asylum seekers — the right to seek
and enjoy asylum — application of the principle of non-
refoulement during consideration of asylum claims.
Illegal foreigners — immigration laws vs refugee
protection laws — what triggers the application of the
Refugee Act for illegal foreigners detained under
section 34 of the Immigration Act? (an intention to
apply for asylum vs a formal application for asylum) —
lawfulness of detention under section 34 of the
Immigration Act after the expression of intention to
seek asylum by an illegal foreigner
2020 amendments to the Refugee Act and its
Regulations — interpretation of sections 4 and 21 of
the Refugee Act and Regulations 8(3) and (4) of the
Regulations — authority of the State to continue
detaining illegal foreigners, under section 34 of the
Immigration Act, when they indicate an intention to
seek asylum — Regulations 8(3) and (4): is the
entitlement to apply for asylum in cases of illegal
entry dependant upon good cause being shown?
Legislation and Legislation
International Section 34 of the Immigration Act 13 of 2002
Instruments Sections 2, 4, 21, 21(1B), 22(1), 23, 29, 34 of the
Refugees Act 130 of 1998
Regulation 2(2) of the Refugees Regulations
(Forms and Procedure) 2000 GN R.366 GG 21075,
6 April 2000
Amendment Acts 33 of 2008; 12 of 2011; and 11
of 2017
Regulations 7, 8(3), 8(4) of the Refugees
Regulations, 2018, GN R. 1707 GG 42932, 1
January 2020
International instruments
Articles 31, 32, 33 of the 1951 United Nations
Convention relating to the Status of Refugees
("the 1951 Convention")
Articles 27-30 of the Organisation of African Unity
Convention Governing the Specific Aspects of
Refugee Status in Africa.
Cases cited as Nkwankwo v Minister of Home Affairs and Others;
authority Anyacho and Another v Director General:
Department of Home Affairs and Another;
Onwuakpa v Director General: Department of
Home Affairs and Another [2020] ZAGPJHC 377
Ndlovu v Minister of Home Affairs and Others;
Dwatat v Minister of Home Affairs, unreported
judgment of the Gauteng Division of the High
Court, Johannesburg, 2021/230230 and
2021/22509
Mafadi and Another v The Minister of Home Affairs
and Another [2021] ZAGPJHC 141
Ruta v Minister of Home Affairs [2018] ZACC 52;
2019 (2) SA 329 (CC); 2019 (3) BCLR 383 (CC)
Abdi and Another v Minister of Home Affairs and
Others [2011] ZASCA 2; 2011 (3) SA 37 (SCA)
Arse v Minister of Home Affairs and Others [2010]
ZASCA 9; 2012 (4) SA 544 (SCA)
Bula and Others v Minister of Home Affairs and
Others [2011] ZASCA 209; 2012 (4) SA 560 (SCA)
Ersumo v Minister of Home Affairs and Others
[2012] ZASCA 31; 2012 (4) SA 581 (SCA)
Abore v Minister of Home Affairs and Another
[2021] ZACC 50; 2022 (2) SA 321 (CC); 2022 (4)
BCLR 387 (CC)
Mafadi and Another v Minister of Home Affairs
and Another [2021] ZAGPJHC 141
Radio Pretoria v Chairperson, Independent
Communications Authority of South Africa and
Another [2004] ZACC 24; 2005 (4) SA 319 (CC);
2005 (3) BCLR 231 (CC)
Biowatch Trust v Registrar, Genetic Resources
and Others [2009] ZACC 14; 2009 (6) SA 232
(CC); 2009 (10) BCLR 1014 (CC)
Facts The court below had refused to order the release of
three illegal foreigners (the Applicants), who were
being held in detention according to section 34 of the
Immigration Act and had expressed a desire to apply
for asylum. This was an appeal against that judgment.
The Court noted that the Applicants were released
long ago, and the case was resolved in relation to their
personal interests, but the matter was heard because
public interest required the clarification of the effect of
the 2020 amendments to the Refugees Act and its
Regulations. Particularly, the Court needed to clarify
whether the detention of illegal foreigners under the
Immigration Act extinguishes when they indicate an
intention to apply for asylum and the procedure for
making an asylum application.
Detention/alternative Detention Alternative N/A
methods method(s)
Detention according
to section 34 of the
Immigration Act
Summary
The court interpreted the right to seek and enjoy
asylum in relation to asylum seekers who are in the
country unlawfully as ‘illegal foreigners’.
The court dealt with the interplay of the Immigration
Act and the Refugees Act. The court was guided by the
decisions of the Constitutional Court in Ruta v Minister
of Home Affairs, and Abore v Minister of Home Affairs
and Another, which interpreted the application of the
principle of non-refoulement before and after the 2020
amendments to the Refugees Act and its regulations.
These decisions held, amongst other things, that the
right to seek asylum goes beyond the procedural right
to lodge an application for asylum, although this is an
important component of the right. The decisions noted
that the Immigration Act should be read in harmony
with the Refugees Act. If an asylum seeker is in the
country unlawfully as an ‘illegal foreigner’, they have
the right to seek and enjoy asylum once they indicate
an intention to apply for asylum. The right applies for
as long as the claim to refugee status has not been
rejected after a proper procedure. Section 2 of the
Refugees Act captures the protection of refugees and
asylum seekers under the principle of non-refoulement
and should prevail when there is a conflict with other
provision(s) in the Refugee Act or other laws.
The court interpreted the 2020 amendments and
summed them as follows:
The detention of ‘illegal foreigners’ under section 34 of
the Immigration Act should cease when the application
of the Refugee Act is triggered by the foreigner
making an indication of an intention to apply for
asylum, not by a formal application being submitted.
Further, the enquiry into good cause referred to in
Regulation 8(3) of the Refugee Regulations is not a
precondition for making an application for asylum, and
must be read as part of the overall enquiry to facilitate
the application. Finally, the court declared Regulation
8(4) to be ultra vires (made without the necessary
powers) because it introduced a requirement that
could not be found in the Refugees Act. Regulation
8(4) sought to limit the right to seek asylum by
empowering a judicial officer to require a foreigner
who appears before court and indicates an intention to
seek asylum to show good cause. Therefore, it
conflicted with section 2 of the Refugees Act and must
be ignored or read pro non scripto.
Decision/ Judgment The appeal was upheld, and the court ordered the
respondents to bear the costs of the applicants,
including the costs of two counsel where so employed.
The costs ordered included the costs of the initial
applications, the applications for leave to appeal, the
application to waive security and the appeal. The costs
were on the scale as between party and party.
Basis of the decision The court interpreted the 2020 amendments to the
Refugees Act and Regulations according to section 2
of the Refugees Act, which captures the protection of
refugees and asylum seekers under the principle of
non-refoulement.
The court was also guided by the decisions of the
Constitutional Court in Ruta v Minister of Home Affairs,
Abore v Minister of Home Affairs and Another.
Reported by Ghati Nyehita
Date 17 March 2023
