Attorney Johannesburg

The manner in which asylum seekers are dealt with by the Department of Home Affairs continues to be a matter of some considerable embarrassment. Whatever it might say publicly, the Department, whether intentionally or other, certainly tests the persistence, patience and mettle of those persons who wish to seek asylum and who consider South Africa to be one of the few, if not the only, safe destination for persons fleeing from war and persecution. Asylum seekers claim that the Department persistently sends out signals that asylum seekers are not welcome in South Africa, that the Republic has other priorities.

In the case reported below, it was not disputed by the Department that asylum seekers in Cape Town were forced to sleep overnight outside on the pavement in a desperate – but vain – hope that they might get their asylum seeker permits. It was also found that similar allegations have been made about the Department’s practices at its Pretoria refugee reception office. These asylum seekers were instead confronted with the consequences of a policy or practice that dictated that only a limited number of people would be allowed to enter the Department’s offices to submit applications. The unlucky ones would have to return the next day or week to try again and hope that they were not arrested in the meantime.

The asylum seeker’s only protection against deportation from South Africa and right to seek work is to obtain an asylum seeker permit which has been issued in terms of the Refugees Act. There have been persistent reports interspersed with various High Court decisions highlighting the problems faced by individual asylum seekers in getting a proper opportunity to submit applications and to obtain these permits from the Department. Until now, those problems have largely been dealt with on an ad hoc or individual basis. In a judgment handed down on 16 January 2006 in the Cape High Court [Kiliko v Minister of Affairs, CPD case no: 2730/05], the crisis was addressed on more of a class basis by a group of asylum seekers.

In his judgment, his Lordship Mr. Justice Van Reenen noted that the Republic had acceded to the refugee conventions during the Nineties and, subsequently, on 1 April 2000, brought the Refugees Act into operation. However, between 2000 and 2005 the Department found itself faced with a larger influx of refugees that had been originally anticipated. Nevertheless, the Department had failed to address the problem and, what the Court termed, “rudimentary remedial steps” were only devised and/or implemented in 2005 and after two separate High Court applications had been brought to challenge this state of affairs. Part of those new measures somewhat incredibly called for the applicant to undergo a preliminary interview even though this interview is not actually provided for in the Refugees Act and could only serve to delay these applications further – quite aside from its potential prejudice to the applicant. Van Reenen J described this measure as “stupefying”. He also concluded that the Department’s failure to introduce proper measures had “undoubtedly resulted in the violation of the fundamental rights of asylum seekers under the Constitution and also under the refugees Act.”

In his judgment, Van Reenen J stressed the inherent vulnerability of asylum seekers. He noted the typical asylum seekers’ lack of means, support systems, family, friends or acquaintances and all too frequently little or no knowledge of the South African legal system or of any of our languages. He repeated the dictum that the State is obliged to respect the basic human rights of any foreigner who has entered the country and he or she is entitled to all the fundamental rights entrenched in the Bill of Rights except for those expressly reserved to citizens and that when it comes to complying with the law, the State must lead by example – a principle the Department should also heed to when it considers the mess that prevails in its temporary and permanent residence permit sections. The Court also reminded the Minister that “administrative convenience is not acceptable as an excuse”.

The High Court went on to conclude that the facts of the case warranted the issue of what is now termed a structured interdict – where the subject of the interdict has to return to Court to report back on its compliance with the Court’s ruling. As it was put, “… the only manner in which way that purpose [of ensuring compliance] could be achieved is to require the respondents to provide this court with a report in the form of an affidavit” which sets out the steps taken by the Department to comply with the interdict’s detailed dictates. In addition, the Department has to serve the report on the applicants to allow them to answer to the various claims.

The interdict was granted in the form of final relief. It is to be hoped that this structured interdict will go a long way to improving the respect for legality at this, the first stage in the asylum determination process. Regrettably one can predict with some certainty that it will not be the last time that the fundamental rights of asylum seekers and refugees will have to come before the High Court for protection from the very Department which is supposed to uphold and promote these fundamental values.