Abdi and Another v Minister of Home Affairs and Others (734/2010) [2011] ZASCA 2; 2011 (3) SA 37 (SCA); [2011] 3 All SA 117 (SCA) (15 February 2011)

Key Facts

Issues

• The judgment emphasized that the Refugees Act must be interpreted in line with the 1951 UN Convention and the 1969 OAU Convention. These conventions explicitly prohibit returning refugees to countries where they face persecution, and the court found the respondents' reliance on the Chicago Convention incompatible with this framework.
• The court rejected the respondents' argument that South African courts lack jurisdiction over individuals held in the Inadmissible Facility. It cited precedents affirming that persons physically present in South Africa, even at ports of entry, are entitled to constitutional protections. The judgment criticized the respondents for relying on outdated legal interpretations and emphasized that the Republic's sovereignty obligates it to protect rights under international and domestic law.
• The court ruled that deporting the appellants to Somalia, a failed state where they face persecution, would violate their rights under the Constitution, particularly the prohibition of cruel, inhuman, or degrading treatment. It highlighted the Act's alignment with international law to prevent such deportations.
• The court upheld the appellants' entitlement to costs, including those of two counsel, despite the respondents' late argument against liability. It noted the unnecessary litigation caused by the respondents' failure to promptly disclose the appellants' files and their reliance on spurious legal defenses.
• The court determined that the appellants' refugee and asylum seeker status was validly established, refuting the respondents' claim that there was no record of their applications. The respondents' officials were found to have ignored clear evidence of the second appellant's recognized refugee permit and the first appellant's asylum seeker file. The judgment emphasizes that the Act applies to individuals in such circumstances, and the court rejected the respondents' argument that the appellants had waived their rights by leaving South Africa without consent.

Holdings

• The court rejected the respondents' claim that South African courts lack jurisdiction over the Inadmissible Facility at the airport. The facility is part of the Republic's territory, and potential asylum seekers/refugees are entitled to the Department's assistance, regardless of prior admission status.
• The court ordered the respondents to pay the costs of the application, including the costs of two counsel, jointly and severally. This was deemed necessary as the respondents' spurious defences forced the appellants to pursue judicial relief.
• The court affirmed that state sovereignty includes the right to control territory and handle deportation cases. The Chicago Convention does not support the respondents' argument against jurisdiction, as its provisions exclude forced return to countries where life or freedom is at risk.
• The appeal was upheld with costs, and the lower court's order dismissing the application was set aside. The substituted order allows the appellants to remain in South Africa until their asylum application is resolved and confirms the second appellant's refugee status.
• The court determined that deporting the appellants to Somalia would expose them to persecution and violate constitutional rights. Somalia's status as a failed state with no effective protection for citizens was not disputed, and the Act prohibits deportation to such countries.
• The court criticized the respondents for failing to comply with their constitutional duties to respect the rights of refugees and asylum seekers. Their evasive conduct, including denying possession of the appellants' files and delaying evidence, caused unnecessary litigation and wasted resources.
• The court held that the Refugees Act 130 of 1998 applies to the appellants, who are recognized as a refugee and an asylum seeker. Their rights are justiciable even when detained in the Inadmissible Facility, and the respondents' argument that the Act does not apply to them was rejected as incompatible with international law and the Act's purpose.

Remedies

• The First and Second Respondents are ordered to pay the costs of the application, including the costs of two counsel, one paying the other to be absolved.
• The Fourth and Fifth Respondents are directed to release the Applicants from detention in the Inadmissible Facility at OR Tambo International Airport.
• The First Applicant is entitled to remain in South Africa until a decision on their asylum application and until they have exhausted their rights of review or appeal under the Refugees Act 130 of 1998 and the Promotion of Administrative Justice Act 3 of 2000.
• The First and Second Respondents are directed to issue each Applicant with an Asylum Transit Permit valid for 14 days, during which they must reside at My Lillipot Shelter, 4th Street Rosettenville, or another specified address.
• The Second Applicant is declared entitled to remain in South Africa in accordance with their recognized refugee status.

Legal Principles

• The court underscored the Rule of Law by applying constitutional rights (Sections 10, 11, 12) to the appellants, even as deportees in an inadmissible facility. It rejected the notion that their status as non-citizens or deportees exempted them from constitutional protections, particularly against cruel, inhuman, or degrading treatment.
• The court reaffirmed South Africa's sovereign immunity by rejecting the argument that another state's deportation order (Namibia) could override the Republic's jurisdiction. It emphasized that the state has exclusive control over its territory, including the Inadmissible Facility at OR Tambo International Airport, and must protect rights of all individuals within its domain.
• The court applied the purposive approach to interpret the Refugee Act 130 of 1998, emphasizing its alignment with international obligations such as the 1969 OAU Convention and the UN Refugee Convention. This approach ensured the Act's purpose of protecting refugees and asylum seekers from persecution and harm was prioritized over technicalities or administrative convenience.

Precedent Name

• Riad and Idiab v Belgium
• Lawyers for Human Rights & another v Minister of Home Affairs & another
• Amuur v France
• Occupiers Erf 101, 102, 104 and 112 Shorts Retreat v Daisy Dear (Pty) Ltd & others
• AD & another v DW & others
• Mohamed & another v President of the Republic of South Africa & others
• Nkondo v Minister of Police & another
• Commissioner of Taxes, Federation of Rhodesia v McFarland
• S v Banda & others

Cited Statute

• Immigration Act 13 of 2002
• Constitution of the Republic of South Africa
• Refugees Act 130 of 1998
• Promotion of Administrative Justice Act 3 of 2000
• Civil Aviation Act 13 of 2009
• Aliens Control Act, 1991
• 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa

Judge Name

• CACHALIA JJA
• TSHIQI JJA
• BERTELSMANN AJA
• LEACH JJA
• MPATI P

Passage Text

• The denial of these rights to human beings who are physically inside the country at sea- or airports merely because they have not entered South Africa formally would constitute a negation of the values underlying our Constitution.
• The respondents' officials have failed to comply with their constitutional duty to 'respect, promote and fulfil the rights in the Bill of Rights' by disregarding the appellants' safety fears.
• Sovereignty in the relation between States signifies independence... the obligation to protect within the territory the rights of other States, in particular their right to integrity and inviolability.