THE SCALABRINI & HOME AFFAIRS: CHILL ON THE DEPORTATION TALK FOR NOW

You inspiration comes from anywhere, ideas are in the space we exist and are waiting to be plucked from the fabric of that space. I started reading The Ceative Act: A Way of Being by Rick Rubin and one of the things the books communicates is generating artistic creation through various methods such as isolation, connecting to universe through meditation, connecting to the collective conscious by sitting at a place where there is alot of traffic of people or by going through social, see the patterns , see the trends see the various numerous thoughts expressed.

That how this blog post came into creation, i was scrolling through twitter and i came across a clipping posted by the Lawyers for Human Rights twitter page. The clipping was a portion of a court judgment in which the Lawyers for Human Rights was attorney of record for the applicant on Refugee/Immigration law related matter. The portion of the order which appeared on this clipping read on how the court ordered the interdict and restraints of any deportation process of foreign nationals who have expressed their intention to appy for asylum. This portion of order was done on authority of section 21(1) b of the Refugees act. Because i like to read stuff, i downloaded the Refugees act, went to section 21(1)b and read it. Confusion overcame me in that instant because the 21(1)b of Refugees i was reading did not correspond to the order the court made which it said is premised on 21(1)b.

And thats how we got here. In this work of writing we will explore the written court judgement of Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others (8486/2024) [2024] ZAWCHC 263 (13 September 2024). The Judgment is penned by Acting Judge B J Manca. The legal artists in this matter is Lawyers for Human Right acting on behalf of the Scalabrini Centre (herein after referred to as the applicant) and Denga Inc mandated to represent the Minister of Home Affair(herein after referred to as the respondent).

ISSUE COURT WAS CALLED TO ADJUDICATE ON:

The High Court of the Western Cape Division, in Cape town was called on to adjudicate on an application brought by the applicant wherein the applicant in the application seeks an order from the court to, in effect interdict and restrain Home Affairs from deporting/causing the deportation of foreign nationals who have indicated their intention to apply for asylum. Such an interdict as sought from the court by the applicant extends also to where foreign national's application for asylum is still to be decided upon. The order sought by the applicant from the court is to interdict and restrain Home Affairs from implementing or exercising their stautory power as per certain provisions which the Scalabrinin centre is currently challenging as being unconstitutional and therefore invalid( Thats the main application). This is more an interlocutory application, like a side quest which is part of the main ques but not the main quest. We wont go into details on the challenged provision but the one thing I can provide is that the challenged provision which the applicant is asking the court to interdict Home Affairs from implementing relate to arresting and detaining foreign nationals whose papers are not in existence form. So basically the second thing the applicant is asking the court to restrain is the arresting and detainment of foreign nationals who are asylum seekers, but have not or are found to not be complying with the provision of seeking asylum which have resulted to their troubles.

THE BRIEF QUICK BACKGROUN OF THINGS:

Now i dont know if you have been paying attention, but dudes are being arrested like hot cakes at the corner bakery. Law enforcement are pulling up on stores run, owned or employinf foreign nationals and they are enquring on documentation status of dudes. They hauling nationals inside the van, should it they find that their stay in the country is in contravention with Refugee/Immigration law of South Africa.

The Scalabrini i guess, said enough is enough because one of the points which they based their approach of the court system is that after immigration officers find asylum seeker has failed interview, then the seeker are arrested and detained. That interview is about determing whether dude is elligible to apply for asylum as some dudes reason their jump as seeking asylum, yet their intention are to take advantage of the laws for their own personal gain and benefit. It happenes, people have the tendency of looking for ways to beat the house, game the system, bend the rules to suit their own personal agendas.

THE LEGAL REQUIREMENT TO BE MET BEFORE INTERDICTING:

As pointed out above, the applicants approach the court, to ask the court to flex some judicial muscles and interdict and restraint of Home Affairs, from instituting deportation process, arresting and detaining dudes who have expressed intention to apply for asylum.

For the applicant to succeed in this, they have to satisfy the court on the following requirements. namely:

• Convince the court that there is a prima facie right; which is in the way of suffering irreparable harm should an interdict not be granted, wherein applicant needs to further convince court that the balance of convenience favours the applicant and finally, for Scalabrini Centre to succeed, they must show that there is no alternative remedy beside the interdict of an event, action of occurrence.

I did not know this before i read this judgment, but the interdict quest, becomes a bit complicated when seeking to interdict executive from exercising a statutory power. With this type of request, the court requires more than the four requirements of usual interdict. With the interdict of the exercise of a statutory power , as the Scalabrini seeks to do in this case, the court needs to satisfy itself that granting such an interdict, will not be overstepping the separation power doctrine, which requires basically that the three branches of government ( executive, legislature, judicary) do no usurp the function of another and do the job meant to be done by the other branches.

COURT DISCUSSION AND COURT:

Before we look at what the court said. There was something that brought me confusion as i reading this judgments. So the relief sought by the applicant this case, is the same as the proposal which the respondent brought forward in the main application. The Home Affairs dept proposed that they issue a notice whereby they notify their official to chill in instituting any process of deporting/arresting a foreign nationals who has indicated their intention to apply for asylum. That proposal was in terms of 21(1)b. Which i dont understand because 21(1)b makes no provision for intention to apply for asylum. On its literal reading, it provides that an application my be made in person. (More reading to be done on this- i might be not getting the full picture of 21(1)b. Maby its interpretation with the spirit, purport and object of the bill right in mind, might the reason for how it was applied by the respondent in its proposal or how the court interpreted it in applying it to its judgment.

Anyway back to the program.

So the court, in this reviewed and heard submission of the parties. Given that the application for an interdict was brought by the applicant, it was up to the applicant to show the court in clearest of terms that court can disregard seperation of power and order the restrain of Homa affairs exercising its statutory power in terms of the Refugee Act. So court was not satisfied with Scalabrinis submission.

But here where i think the court was brilliant, in carrying out a judgment which in way satisfies both party. The court recognized that the respondent, had proposed in a settlement with the applicant in the main applicant, that instead of carrying with litigation, it would issue a notice ordering law enforcements to chill on the arrest and deportation of dudes who have envinced an intention to apply for asylum. The applicant recieved this in the main application because thats not what they wanted, or atleast, that not the only thing that they wanted.

The court saw that proposal and because the applicant didnt satisfy the court in clearest terms to deviate from the seperation of power, the court could not give the applicant want they sought fully and could not order for the interdict to the implementation for the challeneged provision. So the court hit the sweet spot and ordered only for the interdict of the instituting of any deportation process against any nationals who have indicated their intention to apply for asylum.

THE IMPLICATION OF THE COURTS DECISION

To b clear, the court in not ordering the interdict for the challeneged provisions (arresting and detaining themed provision) but ordering for the interdict on any process of deportation against those who have expressed their intention to apply for asylum entails that dudes who indicate that they intend to apply for asylum may not be deported to their country of origin but they may still be arrested and detained until such time as ther asylum status is resolved through either executive branch official channels or through judicial branch.

You can still be arrested and detained for not having the requisit paper work of a person seeking asylum. You cannot, be deported because you dont have such paper work, provided you indicate your intention to apply for asylum.

I trust I got that right.

CONCLUSION.

To cap off, the court ordered for the interdict in the any deportation process agains duded who envince their intention to apply for asylum. Such an interdict endures pending the determination of the main application.

There could be more but from the literal reading of this judgment, basicallym deportation process are interdicted but you can still be arrested and detained if found not complying with the laws of the country, irrespective of whether you indicated your intention to apply for asylum

(You are loved, you are cherished, you are appreciated.)

Disclaimer

The views and opinion expressed are those of my own, based on my own experiences and my subjective interpretation of the subject matter. They are not authority nor should they be construed to be authority. Do your research, read further, gain knowledge and do what you want with it. Non of the views expressed herein are legal advice. Always seek a legal practitioner for your legal problems. All views expressed are views founded on opinion and subjective perspective. ITS NOT AUTHORITY