Deportees in Inadmissible Facility Have Right to Apply for Asylum Abdi and Another v Minister of Home Affairs and Others 2011 3 SA 37 (SCA)

Abstract

Since 1994, South Africa has become host to refugees from African continent and overseas. Refugees flee their countries for various reasons, including persecution and insecurity. Under international law and South African law, it is unlawful to deport a person who wishes to claim for asylum. Deporting asylum seekers violates the principle of non-refoulement, which is the most fundamental principle of refugee law. This principle guarantees a person’s right not to be forcibly returned to a place where the person would face a threat of persecution or a real risk of torture or cruel, inhuman, degrading treatment or punishment. Deportees in inadmissible facility have right to apply for asylum in the Republic of South Africa. They are located in an area that is under the sovereignty of the RSA. Therefore, the Bill of Rights in the Constitution, international conventions and municipal laws governing refugees and asylum seekers apply to such individuals. Once there is an indication to apply for asylum, the officials of Home Affairs have a duty to assist the concerned person to file such application at a Refugee Reception Office. Government officials, who intentionally fail to perform their tasks as provided by the statutes and cause hardship to persons who expect their assistance, should be ordered to pay punitive costs. This will encourage government officials to perform their duties adequately without unreasonable delay.

DOI: 10.5901/mjss.2013.v4n13p171