THE Constitutional Court has declared that an illegal immigrant - who is fighting his deportation - be allowed to remain in the country until his asylum application is heard.
The apex court also ruled that Ethiopian national Desta Abore’s continued detention is without just cause in the absence of a court order.
The Concourt found Abore's arrest was unlawful and directed Minister of Home Affairs Aaron Motsoaeldi - a respondent in the matter - to take reasonable steps within 14 days “to give effect” to Abore’s intention to apply for asylum in terms of the provisions of the Refugees Amendment Act.
According to Abore, he fled Ethiopia for South Africa because he feared for his life.
He previously made two attempts to apply for asylum, which were unsuccessful.
Abore was arrested in Eshowe in June last year and was detained at the Lindela Repatriation Facility while awaiting deportation.
He entered South Africa illegally from Zimbabwe having travelled from Ethiopia.
In July 2020, the Eshowe Magistrate's Court convicted him and sentenced him to 50 days’ imprisonment with an option to pay a fine of R1 500.
He immediately began serving his sentence which officially ended on August 25, 2020; however, he remained in custody and was only released on June 25, 2021.
Abore brought an urgent application in the Durban High Court seeking a rule nisi directing the respondents not to remove him from the Eshowe Police Station holding cells and the Durban High Court’s jurisdiction.
The application also sought to interdict the minister and director-general of Home Affairs from deporting him to Ethiopia.
The court granted the interim orders.
But earlier this year, the Department of Home Affairs initiated the deportation process.
A warrant of arrest was issued for Abore.
The warrant was confirmed by a magistrate in Eshowe and in March a magistrate in Krugersdorp extended Abore’s detention by 90 days.
But, Abore in turn filed an urgent application in the Gauteng High Court challenging the lawfulness of his continued detention.
He also wanted an order declaring his detention to be unlawful and that he be released from jail to apply for asylum.
That application failed, leading him to approach the Constitutional Court.
On Thursday, in a unanimous judgment, the Constitutional Court held that the interests of justice favoured the granting of direct leave to appeal.
The court further stated that the legislative changes occasioned by the amendments to the Refugees Act, which came into operation on January 1, 2020, did not have the effect of barring those in Abore’s position from applying for asylum.
The court held that the amendments introduced an additional step, in the form of an interview, before a person may be permitted to apply for asylum.
Regarding the lawfulness of Abore’s detention, the court stated that his custodial sentence ended on August 25, 2020, which entitled him to be released.
He was therefore kept in detention without just cause or in the absence of a court order from August 26, 2020 until February 7, 2021.
kailene.pillay@inl.co.za
Political Bureau