The process of applying for asylum in South Africa is governed by the Refugees Act 130 of 1998 (Refugees Act). Sections 22(12) and 22(13) were introduced into the Refugees Act by the Refugees Amendment Act 11 of 2017, which came into effect on 1 January 2020. These provisions, and their subsequent Regulations, were the subject of litigation launched in the Western Cape High Court.

The Scalabrini Centre of Cape Town instituted proceedings against the Department of Home Affairs (DHA), challenging the constitutional validity of sections 22(12) and 22(13) and Regulation 9 and Form 3 of the Refugee Regulations. These impugned provisions create an automatic presumption that asylum seekers have abandoned their application if they do not renew their asylum visa within 30 days after its expiry the effect of this automatic presumption can be far-reaching and may lead to asylum seekers who have genuine claims being deported back to circumstances in which they can face further persecution.

Non-refoulement

At the heart of this matter lies the principle of non-refoulement. “The principle of non-refoulment is the cornerstone of international refugee protection,  it ensures that an individual is not returned to any place where there lies a possibility that they may face persecution. South Africa has ratified various international treaties which speak to this principle, and in so doing has bound itself to abide by the tenets of the international covenants. Further, in compliance with its international obligations, South Africa promulgated the Refugees Act, which entrenches the principle of non-refoulement in section 2. This demonstrates the commitment South Africa initially had to the protection of forced migrants.

However, over the years, we have seen our commitment to the progressive values underlying the Refugees Act dwindle, and the ability to apply for asylum become more stringent and difficult to access. The provisions in question in this matter are a direct reflection of the times we are in and the arbitrary barriers foreign nationals face in trying to remain documented.

The applicants in this matter succinctly placed before the court the consequences of the impugned provisions, which are:

• Asylum applications can automatically be deemed abandoned, without considering the merits of the individual’s claim.

• While in theory the individuals can make representations, no clear procedures exist to do so.

• Children are also at risk of being arrested, detained and undocumented.

Regulation 9(3) of the Refugees Act provides that the DHA can only allow for the late renewal of a permit if the asylum seeker has a compelling reason and proof thereof (such as hospitalisation) for the delay. This ultimately means that asylum seekers who simply cannot afford to travel to the Refugee Reception Offices within that month, could be left undocumented and would then struggle to obtain employment, gain access to healthcare and education they would, as a result, be dealt with as an illegal foreigner in accordance with section 32 of the Immigration Act 13 of 2002.

The respondent argued that the provisions were necessary to help prevent recalcitrant asylum seekers from abusing the asylum system. Further, it argued this was necessary to aid in dealing with the current backlog of dormant applications and put in place more severe penalty provisions for abusive claims.

However, the applicants argued that the respondent failed to acknowledge and accept what the major contributing factors to the backlog are. These factors include the respondent’s decision to close Refugee Reception Offices in certain urban areas, its inefficient adjudication processes, and its lack of capacity to deal with the asylum applications.

The Consortium for Refugees and Migrants in South Africa was admitted as an amicus curia in the matter and put forward submissions that these “abandonment” provisions were not in the best interests of children as they would result in children becoming stateless and being at risk of statelessness. 

International obligations

In its assessment of the matter, the court confirmed South Africa’s responsibility to comply with its international obligations and to establish systems and allocate resources thereto. The impugned provisions constitute a significant limitation on the right to non-refoulement, because they had the potential to force an asylum seeker to return a country they previously fled from and face further persecution. A bureaucratic review by the Standing Committee on Refugee Affairs cannot serve as a legitimate constitutional basis for limiting the right to non-refoulement.

The court therefore held that the “abandonment” provisions were arbitrary as asylum seekers would be deported based on external circumstances, such as failing to renew their permit instead of the merits of their claim. This would result in a violation of the core principles of refugee law, which are to ensure to ensure forced migrants are awarded the full protection of the Constitution, until the merits of their claims have been adjudicated.

It was therefore declared that:

• Sections 22(12) and 22(13) of the Refugees Act are inconsistent with the Constitution and invalid to the extent that they provide that asylum seekers who have not renewed their visas in terms of section 22 of the Refugees Act within one month of the date of expiry, are considered to have abandoned their asylum applications.

• The state is to amend and ameliorate the impugned provisions, in line with the spirit of the Constitution.

• Regulation 9 and Form 3 are inconsistent with the Constitution and invalid and reviewed and set aside.

• The order of invalidity referred to the Constitutional Court for confirmation.

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Rwanda's most wanted genocide fugitive has been arrested in South Africa after three decades on the run.

A collaborative operation by the International Residual Mechanism for Criminal Tribunals (IRMCT), the Fugitive Tracking Team and South African authorities resulted in the arrest of Fulgence Kayishema, 63, on Wednesday afternoon in Paarl, Western Cape.

It had been known for years that Kayishema, who once worked as a bouncer, was hiding in South Africa. 

However, fractured relations between South Africa and Rwanda made it difficult to track and arrest him.

IRMCT Chief Prosecutor, Serge Brammertz, said President Cyril Ramaphosa and government arms played a big role in the team's effort to arrest Kayishema.

"The thorough investigation that led to this arrest was made possible through the support and cooperation of the Republic of South Africa and the Operational Task Team established by President Ramaphosa to assist our Fugitive Tracking Team."

He added:

My office would like to recognise, in particular, the Directorate of Priority Crimes Investigations, Crime Intelligence Western Cape Province, SAPS Interpol, and the Ministry of Home Affairs. Their exceptional skills, rigour and cooperation were critical for this success.

In close collaboration with numerous national law enforcement and immigration organisations, the investigation that resulted in Kayishema's detention included many nations.

Kayishema used a variety of aliases and fake documents to hide his name and location while evading the law.

'No way to recognise your family': Rwandan genocide victims recovered from mass grave

He also relied on a network of reliable allies, including family, ex-members of the Rwandan Armed Forces and the Rwandan Democratic Forces of Liberation, and individuals who shared the murderous Hutu Power ideology.

Through an analysis-driven inquiry that used multi-source evidence and both conventional and cutting-edge methodologies, Kayishema was found and apprehended, the IRMCT said.

There was also the close involvement of Mozambique and Eswatini in tracking down the Rwandan fugitive.

"We also received vital support from similar task forces in other African countries, notably the Kingdom of Eswatini and the Republic of Mozambique," he added.

"Rwandan authorities under the leadership of Prosecutor General Aimable Havugiyaremye continued to be our strongest partners and provided essential assistance."

Rwandan president Paul Kagame has pushed for all genocide enablers to be brought to book.

Kayishema was charged with genocide, complicity in genocide, conspiracy to commit genocide and crimes against humanity by the International Criminal Tribunal for Rwanda (ICTR) in 2001 for killings and other crimes committed in Kivumu Commune, Kibuye Prefecture, during the 1994 genocide against the Tutsi in Rwanda.

According to the accusation, on 15 April 1994, at the Nyange Church in Kivumu commune, Kayishema and other co-defendants killed more than 2 000 refugees, including men, women, elderly people, and young children.

Kayishema allegedly took an active role in the preparation and execution of this atrocity, purchasing and distributing petrol to burn down the church that housed the refugees, among other things.

When it didn't work, Kayishema and others used a bulldozer to destroy the church, killing and burying the refugees inside.

Strained relations with South Africa

Relations between South Africa and Rwanda hit a bad patch when reports surfaced that Kagame was allegedly hunting down his enemies in South Africa without involving local authorities.

The 2014 assassination of the former chief of intelligence for Rwanda, Patrick Karegeya who was in exile in South Africa, was the highest strain point between the two countries.

Karegeya was found dead in his hotel room on 1 January 2014.

Michela Wrong’s book, Do Not Disturb: The Story of a Political Murder and an African Regime Gone Bad, claims Karegeya was killed by a Rwandan government hitman named "Apollo".

However, in court papers filed by Karegeya's family for an inquest into his death, there's mention of four Rwandan suspects.

Even before Karegeya's assassination, Rwandan fugitives had been meeting similar fates in South Africa.

One of them was Rwanda's former army chief of staff, General Kayumba Nyamwasa who survived an attempt on his life in 2010.

SA agrees to help

Brammertz in 2019 briefed the United Nations Security Council that South Africa was not cooperating in the hunt for Kayishema.

"Since 2018, this investigation has been significantly impeded by challenges in obtaining cooperation from South Africa."

But last year, having registered breakthroughs in tracking down some of the fugitives, particularly Protais Mpiranya who was tracked down to a grave in Harare, Zimbabwe, there have been more scores for the IRMCT.

Last May, IRMCT went to Pretoria and Cape Town after South Africa agreed to work with them through an operational interdepartmental investigative team in tracking Kayishema.

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Constitutional Court judges found themselves baffled by the conduct of the Department of Home Affairs after it ignored a 2017 court order to amend immigration legislation. The department returned to the court on Thursday to request a ‘revival’ of the order, which expired in June 2019. 

The department offered no apology for its tardiness, saying the 2019 elections had caused a delay in completing the amended legislation as politicians prioritised campaigning. The department also cited the Covid pandemic, which began months after the deadline had already passed, and the fire at Parliament, as reasons why the Immigration Act had not been amended.

Chief Justice Raymond Zondo questioned the department’s lawyer, Mike Bofilatos SC, about whether he had “missed” the apology to the court in the department’s court papers.

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“I may have missed this in the papers. But I don’t see any apology from the Minister or the Director General for what happened here. The order expired without the Minister and the Director General approaching this court asking for an extension. That is the usual thing to do,” Zondo said.

Bofilatos said the department was not requesting an extension, but rather wanted a revival of the order.

“What is the difference in substance in asking for an extension after the expiry of an order or asking for a revival of an order that has lapsed?” Zondo asked.

‘Indulgence’

Bofilatos went on to say that Home Affairs Minister Aaron Motsoaledi was asking for the court’s “indulgence… You can only compliment him for having come to court,” he said.

Zondo chuckled at Bofilatos’s suggestion that Motsoaledi should be complimented and responded: 

“I have been around for a long time. I don’t think I have seen anything like this. In terms of such an important order being allowed to lapse and the court being approached two years later.”

Adding fuel to the fire, Bofilatos clarified: “Well, Chief Justice, it’s actually three years at this point.”

“Why should the court not regard this as a pathetic dereliction of duty?” Zondo asked. Bofilatos offered no reply, saying he had made his submissions to the court.

Arbitrary detention

In 2016, Lawyers for Human Rights (LHR) had taken Home Affairs to court over the practical application of Section 34 1(b) and (d) of the Immigration Act. The sections authorised the administrative detention of undocumented foreigners for the purposes of deportation. The detention period can be extended from 30 days by a court, to 90 days or a maximum of 120 days. 

At the time, LHR had argued that, in many cases, people were being detained for more than 120 days – sometimes for six months or longer – without appearing in court or being informed of their rights in some cases.

“The applicant’s (LHR’s) papers paint an unfortunate picture of a widespread disregard for statutory requirements, which leads to a violation of the rights of vulnerable people. These lapses reveal shortcomings in the system enacted by the Immigration Act. A system that was designed to promote their ‘dignity and relevant human rights’,” the Constitutional Court said in the 2017 judgment.

“This provision grants drastic powers to an administrative official, the immigration officer. It empowers the officer to deport an illegal foreigner without the need for a warrant authorised by a court.

“To ameliorate the harshness of the exercise of this power, the provision requires the immigration officer to give the affected foreigner a written notice of the decision to deport and his or her right to appeal against the decision.

“Notably, the very same provision authorises an immigration officer to arrest and detain an illegal foreigner, pending his or her deportation. The exercise of this power is not subject to any objectively determinable conditions. Nor does the section lay down any guidance for its exercise.  

“There can be no doubt that in present form, section 34 (1) offends against the rule of law by failing to guide immigration officers as to when they may arrest and detain illegal foreigners before deporting them. More so because this power may be exercised without the need for a warrant of a court,” the Constitutional Court found in 2017.

The court agreed that there was a need for judicial oversight in the process and a halt to arbitrary detention.

“It is apparent from the Bill of Rights in our Constitution and the jurisprudence of this Court on the matter that automatic judicial control or review forms an integral part of safeguards guaranteed against detention without trial,” the court found.

Deadline

It ordered the department to amend the act to deal with these defects, giving it a 24-month deadline which ended in June 2019. 

The court also ordered that pending the finalisation of the legislation, “any illegal foreigner detained under section 34 (1) of the immigration act shall be brought before a court in person within 48 hours from the time of arrest or not later than the first court day after the expiry of the 48 hours, if 48 hours expired outside ordinary court days.” This is similar to the provision for all other arrests within the Criminal Procedure Act.

In an affidavit before the court, Home Affairs Director General Livhuwani Makhode said even though the department published the Draft Immigration Amendment Bill in June 2018, the process had stalled.

“Shortly after October 2018, and with the looming national elections (held on 22 May 2019), parliamentary activity, within the context of legislation awaiting amendment or awaiting enactment, was drastically reduced as Parliamentary MPs were taken up by the more pressing issue of preparing and canvassing for the forthcoming elections. This, in turn, severely hampered the finalisation of the Bill which, ultimately, as a consequence of the election of May 2019, jettisoned the timeous finalisation of the draft Immigration Amendment Bill,” Makhode said.

The department said the lack of new legislation was creating a nightmare in the magistrates’ courts. 

In his heads of argument, Bofilatos said that in January 2022, “a senior Johannesburg Court Magistrate directed that Magistrates should no longer entertain Section 34 enquiries into the detention of illegal foreigners”.

Motsoaledi had written to Parliament in June 2022 saying there was an urgent need to introduce the legislation because “different interpretations were being given to this Court’s judgment” and “the… situation was leading to an inability to deport illegal foreigners”.

‘Lazarus application’

Judge Steven Majiedt was critical of the department’s approach in this case, saying it had made a “Lazarus application”, going to the high court for an order that would essentially overrule a Constitutional Court decision.

“Here is the most striking problem in this case. They (Home Affairs) don’t… come to court when they realise in 2018 that they are not going to get this done. They have nine months to come to court. They don’t do that. They blame it on the elections. They blame it on the pandemic. The pandemic has nothing to do with the lethargy that happened here,” he said.

Representing Lawyers for Human Rights, advocate Steven Budlender criticised the conduct of the department and that of their legal team, saying taxpayers should not pay for this litigation.

“You can say what you want about the minister and his failure to do his job and his DG’s failure to do his job and the failure of their officials. But this is not how lawyers should be behaving when they represent clients. 

“What should happen is that the senior counsel and the attorneys involved should say, ‘You can’t behave like this. You’ve got to apologise, you’ve got to go cap in hand, we’ve got to cite LHR (in the court proceedings) and we’ve got to stop engaging in a hostile approach where you’re reporting Mr Mncube [LHR national director Zibusiso Wayne Mncube] for misconduct, where you say we should not get costs… And I’m afraid it is indicative of the approach of the department to NGOs in this sector,” he said.

The court will need to decide how to amend the current order to ensure the rights of those detained are not violated while the department concludes the legislation.

The LHR suggested a framework in which immigration officers and magistrates could be provided with some guidelines along with regular reports from the department on the progress of the new legislation.

The court was, however, concerned about overstepping by making an order that ventured into the realm of the legislature.

Registration of newborns being hampered by power cuts: Home Affairs

22 May 2023 | SABCNews 

The Department of Home Affairs says rolling blackouts are having a negative impact on the registration of newborn babies, within the stipulated 30-day time frame.

It says the use of generators during power outages is not without challenges.

The department briefed Parliament’s Portfolio Committee on its performance in achieving its targets for the third and fourth quarters of the 2022/2023 financial year.

Home Affairs Minister Aaron Motsoaledi says some of the other challenges faced in the swift registration of births are related to cultural beliefs.

“Now the demand side I am talking about, about social factors that not everybody who is born inside the hospital with the Home Affairs office next door to the labour ward actually register within 30 days and I have seen that practically. Many moms just say look I have gone into labour, suddenly I was rushed into [hospital], I can’t register this child I must go home to consult with the elders about the naming of the child and all those things. I am sure those who understand our culture will understand.”

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Five arrested in Joburg for producing fraudulent home affairs documents

21 May 2023 | Times Live

Police found green ID documents marked deceased, passports and temporary IDs, among other things, during the arrest.

Police have arrested five suspects allegedly involved in a syndicate producing fraudulent documents in Johannesburg.  

The group was allegedly producing false documents, including birth certificates, death certificates, university and college certificates,  IDs and passports. 

Police spokesperson Lt-Col Mavela Masondo said police received information about undocumented foreigners allegedly committing fraud and corruption with home affairs officials by unlawfully producing personal documents in a flat in Marshalltown in the Johannesburg CBD.

One of the green ID documents marked deceased found by police during the arrest.

On Tuesday police followed up on the information and visited the premises, where they allegedly found five men working on laptops and desktop computers printing documents, including death and birth certificates.  

“Police also found green identity documents marked deceased, passports and temporary ID documents.”

Masondo said the suspects, aged between 39 and 50, were arrested and charged with fraud, corruption and bribery.   

“More arrests are imminent and more charges might be added. The suspects are expected to appear in the Johannesburg magistrate's court in due course.”

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