IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION ...

IN THE HIGH COURT OF SOUTH AFRICA (EASTERN CAPE DIVISION, GRAHAMSTOWN)

In the matter between:

CASE NO: 2811/2019 Date heard: 04/10/2019 Date delivered: 04/10/2019 Reasons available: 08/10/2019

LEFAMO MATEWOS MEGABO and MINISTER OF HOME AFFAIRS

Applicant First Respondent

DIRECTOR GENERAL: DEPARTMENT OF HOME AFFAIRS

Second Respondent

DIRECTOR OF PUBLIC PROSECUTIONS

Third Respondent

__________________________________________________________________ REASONS FOR ORDER

___________________________________________________________________

ROBERSON J:

[1] It is not disputed that on 13 August 2019 the applicant, an Ethiopian national, was arrested by an immigration officer for allegedly contravening s 49 of the

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Immigration Act 13 of 2002, thereafter appeared in the Magistrate's Court Mdantsane, and has been remanded in custody from time to time at Westbank prison. A bail application was set to be heard on 7 October 2019.

[2] The precise subsection of s 49 of the Immigration Act was not mentioned in the founding affidavit. Section 49 provides for a number of offences, but I assume it was s 49 (1) (b) which provides that any illegal foreigner who fails to depart when ordered to do so by the Director-General is guilty of an offence. The precise offence is not really relevant for the purposes of this judgment. What is relevant is that the applicant was arrested and detained for allegedly committing an offence in terms of the Immigration Act. It is not in dispute that presently he is not in possession of an asylum seeker permit issued in terms of s 22 of the Refugees Act 130 of 1998.

[3] On 27 September 2019 the applicant launched this application as a matter of urgency. Following my directive, it was to be heard on 30 September 2019 at 14h15. The matter could not be heard then because the notice of motion served on the first and second respondents was defective. I was also of the view that the third respondent should be given notice. The third respondent was eventually joined and served and the matter was heard on 4 October 2019. In his notice of motion the applicant sought an order declaring his continued detention, pending a judicial review of his asylum application, to be unlawful; an order that he be released from detention in order to pursue his review remedies; an order that the second respondent discontinue any proceedings against the applicant; and an 2

order that the second respondent issue the applicant with an asylum seeker temporary permit pending the applicant's judicial review application issued under case number 2132/2016 in the Port Elizabeth High Court. It is common cause that that application was issued and served on the respondents in that application.

[4] On 4 October 2019 I dismissed the application with costs, indicating that my reasons for doing so would follow. My reasons are set out below.

[5] In this application the applicant relied essentially on s 21 (4) (a) of the Refugees Act which provides:

"(4) Notwithstanding any law to the contrary, no proceedings may be instituted or continued against any person in respect of his or her unlawful entry into or presence within the Republic if-

(a) such person has applied for asylum in terms of subsection (1), until a decision has been made on the application and, where applicable, such person has had an opportunity to exhaust his or her rights of review or appeal in terms of Chapter 4;"

[6] The founding and replying affidavits were deposed to by the applicant's attorney, Mr N L Goqa. Annexed to the founding affidavit was a power of attorney signed by the applicant at Mdantsane on 18 September 2019.

[7] According to Mr Goqa the applicant was unable to depose to the founding affidavit because he is in custody in East London. The applicant arrived in South Africa during 2013 and lodged an asylum application at the Durban Refugee Reception Office. He was issued with an asylum seeker temporary permit which

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was renewed on several occasions. During 2016 his asylum application was rejected by the Refugee Status Determination Officer (the RSDO). This decision was sent on automatic review to the Standing Committee for Refugee Affairs. The rejection was upheld and the applicant was ordered to leave the country. The applicant then instructed JCM Attorneys, Port Elizabeth, to launch the review application in the Port Elizabeth High Court. After the application was launched, the applicant's asylum seeker temporary permit was extended on several occasions by the Durban office. Thereafter a practice was established whereby persons were given notice to appear each month before an immigration officer to report on the status of their review application.

[8] These monthly appointments proved too costly for the applicant because he lost his employment after constantly taking leave. He stopped going to the Durban office to renew his temporary permit and also failed to instruct JCM Attorneys to finalise the review application.

[9] The magistrate at Mdantsane was shown a copy of the review application but insisted that a formal bail application should be made. It was set to be heard on 25 September 2019 but owing to the absence of an interpreter was postponed to 7 October 2019. In the meanwhile Mr Goqa contacted the State Attorney's office in relation to the review application and was informed that their file had been closed because the application had not been pursued. In his interaction with the immigration officer, Mr Goqa was informed that the applicant would not be released and that the applicant could approach a court. 4

[10] Mr Goqa alleged that on his arrest and thereafter the applicant was not informed of his rights in terms of s 34 of the Immigration Act or in terms of Article 36 (1) (b) of the Vienna Convention on Consular Relations 1963 or in terms of s 35 of the Constitution. It was further alleged in the founding affidavit that the applicant's detention became unlawful the minute he told the officials of the Department of Home Affairs that he has a pending judicial review.

[11] In the founding affidavit Mr Goqa said he would not set out the details of the applicant's asylum application for reasons of confidentiality as provided for in s 21 (5) of the Refugees Act. However an incomplete copy of the applicant's review application in the High Court was annexed to the founding affidavit. The respondents in that application are the Minister of Home Affairs, the Refugee Appeal Board, Maemo Chipu who is/was the Appeal Board's Chairperson, and the RSDO. The applicant seeks an order reviewing and setting aside the Appeal Board's decision rejecting his application for refugee status, and other relief. In the founding affidavit in that application the applicant stated the following, under the heading "Background" (all sic):

"20. I was born on 17 June 1989, in Ethiopia. 21. I arrived in the Republic of South Africa during, having gained entry into the Republic of South Africa through the Zimbabwe Boarder post. 22. Immediately after gaining entry into the Republic, I made my way to the Durban Refugee Reception Office to apply for asylum. I chose this office because I was informed by fellow countrymen

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