9 May 2018

South Africa: Refugee Organisations Take Home Affairs to Court for Defying Judges

Photo: Tariro Washinyira/GroundUp
The Legal Resources Centre, representing the Scalabrini Centre (pictured above), Trustees of Scalabrini Centre and Somali Association of South Africa, is seeking to compel Home Affairs to comply with two court orders.

On 4 May, the Legal Resources Centre (LRC) filed court papers against the Department of Home Affairs for continuing to be in breach of an order of the Supreme Court of Appeal.

The court, in September, ordered Home Affairs to re-open a fully functional Cape Town Refugee Reception Office by 31 March. This means the centre must accept new asylum applications which it currently does not accept. The department was meant to provide monthly status reports to the court on its progress.

The Western Cape High Court, in a separate matter, ordered in "the Nbaya" case that Home Affairs renew or extend asylum seeker permits at its Cape Town refugee offices, irrespective of where the applicants first applied for asylum.

The legal battle between refugee organisations and Home Affairs goes back to 2012, when Home Affairs closed its Cape Town office for new asylum applications. The closure meant Cape Town would only service asylum seekers who had already applied for refugee status. New applicants could only apply in Durban, Musina or Pretoria. In court papers, the LRC argued that Home Affairs was penalising refugees unfairly.

The LRC is representing the Scalabrini Centre, Trustees of Scalabrini Centre and Somali Association of South Africa. The relief sought by the applicants includes an order appointing a Special Master to ensure Home Affairs complies with the court orders and that asylum seekers and new applicants are provided for in the interim.

The LRC will also argue that the practise and policy of issuing administrative fines to asylum seekers who cannot comply with the law because there is no office in Cape Town is irrational and unlawful.

Home Affairs has 15 days to oppose the relief sought or file answering affidavits.

Spokesperson for Home Affairs Mayihlome Tshwete said, "Home Affairs has no intention to disregard the judicial directive and we will duly respect the judgement. In this regard, we have commenced with plans to comply with the order."

He also referred to the department statement of 17 April, which said it had allocated a budget and prioritised the funding to fill key posts. However, the department was dependent on Public Works to provide suitable office accommodation.

Tshwete said, "The Department continues to provide existing clients with the services at the current office accommodation, as the South African government is a signatory to various UN Conventions and we have committed ourselves to assisting those who have come to our country for assistance. The department will continue to uphold its constitutional obligation to those in need of protection from any form of persecution."

But in court documents, the Scalabrini Centre said Home Affairs is still refusing to renew documents for asylum seekers who initially applied outside the Western Cape.

Munkindi Jolie Mwabi, originally from the DRC, testified that she arrived in Cape Town in 2013. Home Affairs told her she had to go to Durban, where she did receive an asylum paper. After the "Nbaya case" she went to the Cape Town Foreshore offices on 5 March. She said officials made a copy of a letter she had from the Scalabrini Centre explaining the Nbaya case, took her contact details, and said they would get back to her. She said she has yet to receive any form of communication from Home Affairs.

"My personal circumstances do not allow me to travel to Durban anymore due to financial constraints and because I am [now] a mother of a one-month-old baby. I constantly live in fear of being arrested at any time. I have difficulties in receiving basic medical care for myself as well as my baby. I was also not issued a birth certificate at the hospital as the result of my expired permit," she said.

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