Gauteng High Court rules in favour of Motsoaledi on detention of illegal immigrants

Home Affairs Minister Aaron Motsoaledi. Picture: Jacques Naude/African News Agency(ANA)

Home Affairs Minister Aaron Motsoaledi. Picture: Jacques Naude/African News Agency(ANA)

Published Feb 12, 2024


The Gauteng High Court, Johannesburg, has ruled in favour of Home Affairs Minister Dr Aaron Motsoaledi following an application by a group of illegal immigrants that their detention at the Modderbee Correctional Services Centre in Benoni was unlawful and against immigration and refugee acts.

However, the court, in its judgment, found no basis for this argument, saying the mere expression of intention to apply for asylum does not trigger the protections in section 2 of the Refugees Act 130 of 1998 section 21(1b) requirement to show good cause for illegal entry and stay in the country.

At the centre of the matter is an application made by Thomas Godiso, Abi Osman Yusuf and four others on an urgent basis, seeking to interdict the the minister and other respondents from detaining, prosecuting and deporting them until their status has been lawfully and finally determined in terms of the Refugees Act 2 as amended.

The applicants also sought declarators that their continuing detention is unlawful and that, in terms of section 2 of the Refugees Act, they are entitled to remain lawfully in the Republic of South Africa until their applications for refugee status are finally determined in terms of the same act.

In addition, the applicants also sought orders directing the minister and director-general of Home Affairs, that upon submission of their applications for asylum, the minister and others must accept same and issue them with temporary asylum seeker permits in terms of section 22 of the Refugees Act, within 15 days, pending finalisation of their asylum seeker applications, including the exhaustion of their right of review or appeal in terms of chapter 3 of the Refugees Act and the Promotion of Administrative Justice Act.

Judge Dunstan Mlambo on Thursday dismissed the application made by the six illegal immigrants, ordering the applicants to pay the minister, his director-general, and the national director of public prosecution costs for the amendment application.

“The first, second, third and fourth respondents are directed, to the extent necessary, to take all reasonable steps, within 60 days from the date of this order, to afford the applicants an opportunity in terms of section 21(1b) of the Refugees Act 130 of 1998, read with regulation (8)(3) thereto, to show good cause is not established, to unfold until it is finally determined.

“The first, second, third and fourth respondents are directed to approach the magistrate’s court, for the extension of time should the review or appeal process not be finalised within the 60-day period. The request should be accompanied by a report directed to the magistrate’s court, setting out what steps have been taken and why the process has not been finalised within the 60-day period,” the judge said in his ruling.

The applicants, some of them from Ethiopia and Somalia, have argued that they were persecuted in their home countries.

Degefa Lembore and Temesgen Matiwos were arrested on September 1, 2023, in Germiston and Johannesburg respectively, while Godiso and Teketel Hajiso were arrested on June 2 and August 3, 2023, respectively, in Daveyton. They argued in court that while living in Tigray, Ethiopia, they were persecuted by the ruling party for their political and religious beliefs due to their mobilisation efforts as members of the Ethiopian People’s Revolutionary Party, an opposition political party.

They further stated that Ethiopia’s ruling party terrorised, persecuted, tortured and killed members of their political party, including their family members, leading to seeking refuge in the country.

They also indicated that they were not aware of the procedure to be followed when applying for asylum and as a result were unaware of both the old and new regulations promulgated in terms of the Refugees Act.

The Star

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