By Lehlohonolo Lehana.
The Constitutional Court has upheld the Western Cape High Court ruling earlier this year that relevant provisions in the Refugees Act were unconstitutional.
The application was launched by the Scalabrini Centre of Cape Town, supported by the Consortium for Refugees and Migrants South Africa (CoRMSA), admitted as an amicus curiae.
The minister and director-general of Home Affairs opposed the application in the High Court, claiming the administration of visas placed a huge burden on the department’s officials because a substantial number of applicants were not genuine asylum seekers. The provisions in the Act, it was argued, were implemented to reduce the backlog of inactive cases and ensure that asylum seekers pursued their applications to completion.
However, in the Constitutional Court, they abandoned their defence, conceding that South Africa was obliged to receive refugees in accordance with international laws and the principle of non-refoulement (the practice of not forcing refugees or asylum seekers to return to a country in which they are liable to be subjected to persecution) was enshrined in the Act.
In spite of this concession, the court still needed to determine the matter.
In a unanimous decision, Acting Judge Ashton Schippers, writing for the court, said the provisions and a linked regulation, violated a number of constitutional rights in that the “deemed abandonment” provisions meant asylum seekers were cut off from essential services.
Judge Schippers said refugees were an “especially vulnerable group” and their plight called for compassion.
He said the provisions in question disregarded the protection of asylum seekers from refoulement, because they could be expelled or returned to the countries from which they fled without a proper inquiry but simply because they had not renewed their visas.
“As stated in the applicant’s submissions in this court, in those countries they may face torture, imprisonment, sexual violation and other forms of persecution, even death. And this, without any consideration of the merits of their claim for asylum,” Judge Schippers said.
The provisions imposed a double penalty; they not only excluded determination of the merits, but prohibited any re-application for asylum, the judge said.
The apex court concluded in a unanimous judgment, among other things, that the impugned sections are arbitrary and do not serve a legitimate government purpose.
The Department of Home Affairs was ordered to pay costs in the matter.
The Scalabrini Centre of Cape Town has welcomed a Constitutional Court ruling setting aside sections of the Refugees Act stating that it’s going to make a marked difference in the lives of those fleeing persecution.