Supreme Court of Appeal Slams Home Affairs for Illegal Detention

The Supreme Court of Appeal gave a scathing rebuke to the Department of Home Affairs on Wednesday and ordered the immediate release of an Ethiopian asylum seeker who has been detained at the Lindela Repatriation Centre for more than 275 days.

The appellant is an ethnic Oromo who was in prison in Ethiopia because of his role as an Oromo Liberation Front political activist.  He first sought asylum in South Africa in 2008 and was arrested as an “illegal foreigner” following his unsuccessful attempts to access the Refugee Reception Office in Port Elizabeth.  He was detained at Lindela for three months before immigration officers assisted him to lodge an asylum application from detention, where he remained following his application. 

During the last weeks of his detention, the Appellant learned that his father, a refugee in Canada, was gravely ill.  He was unable to contact him from Lindela and did not get to speak to him before he died. The Appellant also suffers from lingering health problems following his participation in a group hunger strike at Lindela in December to protest prolonged detentions there.

The Supreme Court of Appeal grilled Home Affairs on the legal basis for continuing to detain the Appellant and also noted the absence of the warrants required by law to continue detaining someone for more than 30 days. Home Affairs had no response.

The court found that Home Affairs had no basis to detain the asylum seeker. Highlighting the clear illegality of the detention, the court suggested that the Department either did not understand the law, or had chosen to ignore it.

“Home Affairs consistently disregards the law in its practice of detaining asylum seekers and other migrants at Lindela,” said Gina Snyman, attorney at Lawyers for Human Rights (“LHR”).  “There are many individuals at Lindela who have been held beyond the 120 day period permitted by law, and many who are held without the Department properly obtaining the legally required warrants. The effect is that these detentions are occurring outside of the law.”

The court also asked why Home Affairs had persisted in opposing the appeal to the Supreme Court at taxpayer expense, given the clarity of the law. 

This is the third case brought by LHR since January in which a court has held that the Department acted illegally by detaining asylum seekers in contravention of the provisions of the Immigration Act. Home Affairs opposed the court applications in all of these cases, and still seeks to appeal the other two decisions to the Supreme Court which has questioned its actions in this case.

“The Department continues to defend its practices by opposing court applications from detainees challenging the lawfulness of their detention under the provisions of the Immigration Act, despite the courts consistently finding that any deprivation of liberty in these cases must be in strict compliance with the law,” said Snyman.  “The order sends a strong message that the courts will not condone or facilitate the ongoing illegalities in the detention process.”

For more information, please contact Gina Snyman at 011 339 1960 or gina [at] lhr [dot] org [dot] za