A division has emerged in the Gauteng judiciary over the Constitutional Court’s landmark asylum judgment, forcing Judge President Aubrey Ledwaba to freeze release cases and order a full Bench to settle the question.
Ledwaba issued the directive on September 10, before Home Affairs sent a directive – now withdrawn – instructing refugee offices on how to process asylum applications. The move saw thousands converge on refugee offices, sparking a wave of violence in Durban and Soweto.
On July 7, the Constitutional Court struck down the parts of the Refugees Act that required people who enter the country illegally or reported late to legalise their stay to show “good cause” before applying for asylum.
In a case involving an Ethiopian who claimed to have fled political persecution in 2021, Judge Stuart Wilson, who sits in the Gauteng Division, Johannesburg, applied the law as it was in 2020 before the 2022 amendments to the Refugee Act. The interpretation stated that once a detained foreigner applies for asylum they must be freed.
Arrested in the Northern Cape in March, Ethiopian national Solly Ered was jailed for three months for being in the country illegally, then sent to Lindela Repatriation Centre to await deportation. He had been repeatedly turned away from refugee offices.
“There was nothing to do but to release Mr Ered,” Wilson wrote in a judgment on September 2, which Home Affairs did not oppose.
A week earlier, in a case known as Mnamo, the court refused to free 20 Lindela detainees who wanted to apply for asylum. It ordered Home Affairs to bring officials to Lindela or take the detainees to a refugee office. The court concluded they would be protected from deportation but would remain locked up.
However, Wilson said the Mnamo ruling had no legal foundation and appeared to be influenced by anti-foreigner movements such as Dudula.
“I have my doubts about whether xenophobic organisations have much support among the poor and the vulnerable. The duty of a court is not to channel the views it attributes to a judicially constructed vision of a virtuous majority, but to apply the law as it stands,” Wilson wrote.
Ledwaba intervened after noting that “conflicting approaches had emerged”. He has halted applications in Johannesburg and Pretoria courts that rely on the Constitutional Court ruling and has sent 33 urgent cases to the full Bench. The full court, which will sit on October 29, must decide whether a detainee who asks for asylum is entitled to immediate release or whether judges may keep them in custody while access to the asylum system is arranged.
Until then, detainees can approach the court only if they show “health, safety, imminent deportation or other grave prejudice”, Ledwaba ordered.
On Tuesday, March and March shut the Durban centre on Che Guevara Road, vowing that no foreigners would enter the refugee processing centre.
On Thursday, 14 vehicles were set alight in Durban’s CBD and foreign-owned shops looted. Police said three foreign nationals were arrested over an alleged assault on a marcher. In Orlando West, Soweto, 10 vehicles were torched after shots were reportedly fired at protesters.
On Friday, Home Affairs withdrew the directive, saying its offices had been overwhelmed and public order threatened. It said the instruction had been issued without Minister Leon Schreiber’s knowledge.
A senior security cluster official said it was not forced on government officials to seek the minister’s approval in such cases and that the Inter Ministerial Committee on Migration could at least have been consulted.
- Judge President Aubrey Ledwaba halted release cases and ordered a full Bench to decide if detainees applying for asylum must be immediately released or can be kept in custody while accessing the asylum system.
- Judge Stuart Wilson ruled that a detained foreigner who applies for asylum must be released, applying the law as it was in 2020 before amendments to the Refugee Act.
- The Constitutional Court struck down parts of the Refugees Act requiring illegal entrants or late reporters to show “good cause” before applying for asylum on July 7.
- Violence erupted in Durban and Soweto after a now-withdrawn Home Affairs directive led thousands to rush refugee offices, resulting in vehicles being set on fire and shops looted.
- Home Affairs withdrew the directive, citing being overwhelmed and threats to public order, and stated it was issued without Minister Leon Schreiber’s knowledge.
