asylum-seekers herald landmark court victory 
Posted 18 December 2006

"I cannot imagine how these people can survive without turning to crime," he said in a judgment deemed to be a victory for asylum-seekers. He said the price to be paid to ensure their applications were processed without delay was a drop in the ocean measured against the price the country was paying for crime.

The policy up to now was that asylum-seekers would arrive at the offices where they would be pre-screened to determine whether they had a chance of qualifying for asylum. The lucky ones then received a piece of paper with their name on it and a return date for an interview. Due to the congestion at the offices, appointments were usually made six months ahead.

The slip was not a legal document and, therefore, asylum-seekers remained illegally in the country and faced deportation while awaiting their return date. Also, they could not work or study in South Africa during that time.

The seven Zimbabweans who brought the application against home affairs said these practices went against the grain of the Refugees Act.

The judge agreed with this and in a lengthy order said the department had to get its house in order.

Apart from ordering that some of the applicants be issued with permits declaring them refugees, the judge said the two refugee reception offices in question must in future adhere to the provisions of the Refugees Act and process all asylum-seekers' applications in a non-discriminatory and fair manner. Rabie said the department had to put up notices at the two offices informing the public that the procedure adopted over the past year (from November last year up to now) regarding the process of applications for asylum-seekers was unlawful. Any person subject to that process and turned away is entitled to have his or her application re-assessed on an urgent basis.

The same applies to asylum-seekers who received appointment slips. The judge said they could return to the two offices to be considered for a section 22 permit urgently. Rabie said the director of refugee affairs had to ensure the procedures used at the two offices were now lawful.   He also appointed a curator to assist asylum-seekers and to investigate whether the orders he had made were being implemented. He wanted the curator to report back in two months.

Rabie said the appointment of the curator was not aimed at policing the actions of government by the court. "It is rather aimed at the protection of a group of unknown people who cannot act for themselves and who are desperately in need of protection and legal assistance."  Rabie said if asylum-seekers were not properly protected by the department's procedures it would severely impact on their fundamental rights to human dignity, life and freedom.

The department earlier said it implemented the above measures because of a lack of staff. Rabie said: "Why the department did not appoint more refugee reception officers remains a mystery."  He said such a person need not be highly qualified and the department should have no problem in deploying other officials or making new appointments. "It is incomprehensible why the department has not yet appointed more officials."

He also suggested the department consider erecting refugee centres closer to borders. Asylum-seekers could be kept there until their applications had been processed. If a person did not qualify, he/she could promptly be returned to his/her country of origin.

This article was originally published on page 1 of Pretoria News on 14 December 2006, Zelda Venter, www.legalnet.co.za