THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Case No: 734/2010

In the matter between:

MAHAMAD ARWAH ABDI
First Appellant
YUSUF ALI DHIBLAWE
Second Appellant

and

THE MINISTER OF HOME AFFAIRS
First Respondent
THE DIRECTOR GENERAL, DEPARTMENT OF
HOME AFFAIRS
Second Respondent
KENYA AIRWAYS
Third Respondent
ANALYTICAL RISK MANAGEMENT INTERNATIONAL
Fourth Respondent
AIRPORTS COMPANY SOUTH AFRICA
Fifth Respondent

Neutral citation:
Abdi v Minister of Home Affairs (734/10) [2011] ZASCA 2
(15 February 2011)

Coram:
MPATI P, CACHALIA, LEACH and TSHIQI JJA and
BERTELSMANN AJA

Heard:
24 NOVEMBER 2010

Delivered:
15 FEBRUARY 2011

Summary:
Appellants granted refugee and asylum seeker status in
South Africa prior to departing for Namibia without informing
authorities – deported from that country to their country of
origin via South African airport – held in Inadmissible Facility
and refused entry by first and second respondents – entitled
to be re-admitted to South Africa with retention of their
former status – failure to allow appellants entry criticised.

________________________________________________________________

ORDER
________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Goodey AJ sitting as
court of first instance).

The appeal succeeds with costs, including the costs of two counsel.

The order of the court a quo is set aside and for it the following is substituted:
„1.
The Fourth and Fifth Respondents are directed forthwith to release the
Applicants from detention in the Inadmissible Facility at OR Tambo International
Airport.
2.
It is declared that the First Applicant is entitled to remain in South Africa until
a decision has been made on his application for asylum and, where applicable, the
Applicant has had an opportunity to exhaust his rights of review or appeal in terms of
Chapter 2 of the Refugees Act 130 of 1998 and the Promotion of Administrative
Justice Act 3 of 2000.
3.
It is declared that the Second Applicant is entitled to remain in South Africa in
accordance with his status as a refugee.
4.
The First and Second Respondents are directed forthwith to issue each of the
First and Second Applicants with an Asylum Transit Permit in terms of section 23 of
the Immigration Act 13 of 2002. Such permits shall remain valid for 14 days, during
which period the First and Second Applicant will reside at My Lillipot Shelter, 4th
Street, Rosettenville, or such other address as is provided to the First and Second
Respondents.
5.
The First and Second Respondents are ordered to pay the costs of the
application, one paying the other to be absolved, including the costs of two counsel
where applicable.‟

JUDGMENT
________________________________________________________________

BERTELSMANN AJA (MPATI P, CACHALIA, LEACH and TSHIQI JJA
concurring)

[1] At the end of the hearing of this appeal, by agreement between the
parties concluded at the suggestion of the President, this court made the
following order:
„(a) By agreement it is ordered:
1.
The Fourth and Fifth Respondents are directed forthwith to release the
Applicants from detention in the Inadmissible Facility at OR Tambo International
Airport.
2.
It is declared that the First Applicant is entitled to remain in South Africa until
a decision has been made on his application for asylum and, where applicable, the
Applicant has had an opportunity to exhaust his rights of review or appeal in terms of
Chapter 2 of the Refugees Act 130 of 1998 and the Promotion of Administrative
Justice Act 3 of 2000.
3.
It is declared that the Second Applicant is entitled to remain in South Africa in
accordance with his status as a refugee.
4.
The First and Second Respondents are directed forthwith to issue each of the
First and Second Applicants with an Asylum Transit Permit in terms of section 23 of
the Immigration Act 13 of 2002. Such permits shall remain valid for 14 days, during
which period the First and Second Applicant will reside at My Lillipot Shelter, 4th
Street Rosettenville, or such other address as is provided to the First and Second
Respondents.
(b) The issue of costs stands over for later determination.‟

[2] The court indicated that the reasons motivating the granting of the
order and determining the costs would be given at a later stage. This
judgment not only contains such reasons and deals with the costs but also
serves to highlight significant shortcomings in the way in which the first and
second respondents dealt with the matter.

[3] The order was issued immediately to address the self-evident urgency
of resolving the appellants‟ plight. There is precedent for the granting of an
order prior to giving judgment at a later stage when the outcome of the appeal
is not in doubt and the litigants‟ interests demand an immediate resolution: AD
& another v DW & others (Centre for Child Law as amicus curiae; Department
for Social Development as Intervening Party) 2008 (3) SA 183 (CC);
Occupiers Erf 101, 102, 104 and 112 Shorts Retreat v Daisy Dear (Pty) Ltd &
others [2009] 2 All SA 410 (SCA).

[4] Although the deponent on behalf of the first and second respondents
chose to deny this notorious fact, it was never suggested in argument that
Somalia is anything other than a failed or dysfunctional state that is unable to
maintain public order or protect the lives of its citizens. It is not disputed that
the appellants hail from Somalia or that their lives would be in danger if they
were to be forced to return to that country.  The appellants had been held in
the Inadmissible Facility at the Oliver Tambo International Airport („the airport‟)
since 7 September 2010.  They were entitled to enter and remain in South
Africa for as long as the law permitted - hence the immediate order.

[5] The present proceedings were initiated by Pamela Msizi, („Msizi‟), a
protection officer at the United Nations High Commissioner for Refugees
(„UNHCR‟) in South Africa. Her locus standi to launch the application by the
exercise of the competence granted by s 38(b) of the Constitution was not
challenged. She approached the Gauteng North High Court (Pretoria) on an
urgent basis to interdict all respondents but the third from forcing the
appellants to board a flight to Somalia and also to obtain a mandamus against
them to facilitate the appellants‟ re-admission to the Republic. The second
appellant was a recognised refugee and the first a registered asylum seeker.
A further mandamus was sought to allow the „second‟ appellant to continue
his application for asylum under s 22 of the Refugee Act 130 of 1998 („the
Act‟) (the reference to the second appellant was a clear error as the first
appellant is the asylum seeker – but this mistake caused no prejudice to the
respondents).  When the application was launched, the appellants were being
held at the Inadmissible Facility at the airport. They had made telephonic

contact with Msizi after having been deported from Namibia as illegal aliens
and informed her that they were on the verge of being placed on an Air Kenya
flight en route to Mogadishu via Nairobi.

[6] The appellants also told Msizi that they had earlier fled Somalia for
South Africa but, because of their fears of xenophobia here, had left for
Namibia after they had been told that the officers of the UNHCR in that
country might be able to arrange for their admission to a country such as
Canada where they might also further their education. As a result of a
misunderstanding it was stated in the founding affidavit that the second
appellant had left South Africa for Namibia in April 2009 and not 2010, which
is the correct date. This mistake was corrected in his replying affidavit. I deal
with this aspect more fully later. Be that as it may, they left South Africa for
Namibia without informing the authorities and were then arrested and
deported as set out above.

[7] In the process of being deported from Namibia to Somalia, the
appellants were flown by Air Namibia to Johannesburg where they were to be
placed on a Kenya Airways flight to Nairobi, Kenya. From this country they
were ultimately to be transported to Mogadishu. However, they wanted to
remain in South Africa and sought Msizi‟s assistance to this end. From
memory the appellants provided Msizi with the numbers of the files in which
their applications for asylum and refugee status had been processed by the
Department of Home Affairs („the Department‟).

[8] Msizi attempted to solve the appellants‟ difficulties by engaging with the
Department, represented in the later application to the court below and in this
appeal by its Minister and its Director-General as first and second respondent
respectively. The official tasked to deal with the appellants‟ case refused to
permit their entry into the country on the ground that the appellants were
Namibian deportees and that South African authorities had no jurisdiction to
interfere with another state‟s deportation order.

[9] The urgent application referred to above followed. It was postponed to
allow the first and second respondents to prepare and file opposing affidavits.
An interim order was made to ensure that appellants were not removed to
another country against their will, pending the finalisation of the application.

[10] The third respondent, Kenya Airways, was joined as the carrier that
was to fly the appellants out of South Africa. The fourth respondent, Analytical
Risk Management International: Aviation Security Division, is a private
security business with its headquarters at 4 Karen Street, Bryanston,
Johannesburg. It runs the international Inadmissible Facility under the
auspices of the fifth respondent, the Airports Company of South Africa.
Established in terms of the Airports Company Act 44 of 1993, the fifth
respondent is responsible for the operation and control of the airport, including
the Inadmissible Facility which is located in the airport building. The third,
fourth and fifth respondents did not oppose the application.

[11] As stated above, the appellants sought an interdict to prevent their
deportation from South Africa and also a mandamus to facilitate their entry
into the country, the second appellant as a recognized refugee and the first
appellant as an asylum seeker. A further order was sought against the first
and second respondents to re-issue the second appellant with a permit in
terms of the Act. (This order should have been sought on behalf of the first
appellant as set out above.)

[12] As proof of the second appellant‟s status, Msizi attached a copy of the
second appellant‟s Recognised Refugee Status Permit to her founding

affidavit. This permit was issued in 2010 in terms of s 27(a) of the Act.1 It is
valid until January 2012.

[13] In a supplementary affidavit prepared after the interim order had been
granted Msizi supplied the file number of the file in which the first appellant
had lodged his asylum application. The appellants also filed supplementary
affidavits to explain why they had entered South Africa. The second appellant
left his home country and came to South Africa in 2003 because of the threat
of violence that endangered his life. The first appellant had been persecuted
in Somalia. Upon entry into South Africa in 2009 he was issued with a
temporary asylum seeker‟s permit. He quoted the number of his file from
memory. His memory failed him. The file number initially supplied was
incorrect, but after discovering the error, he gave the correct reference in the
replying affidavit.

[14] A Director: Port of Entry in charge of immigration duties at the airport,
Mr Ronny Marule, deposed to the first and second respondents‟ („the
respondents‟) answering affidavit. He denied that the respondents had any
record relating to the appellants and disputed their status as refugees or
asylum seekers.

[15] He raised a number of further defences that may be summarized as
follows:

1 '27   Protection and general rights of refugees
A refugee –
(a) is entitled to a formal written recognition of refugee status in the prescribed form;
(b) enjoys full legal protection, which includes the rights set out in Chapter 2 of the
Constitution and the right to remain in the Republic in accordance with the provisions
of this Act;
(c) is entitled to apply for an immigration permit in terms of the Aliens Control Act, 1991,
after five years‟ continuous residence in the Republic from the date on which he or
she was granted asylum, if the Standing Committee  certifies that he or she will
remain a refugee indefinitely;
(d) is entitled to an identity document referred to in section 30;
(e) is entitled to a South African travel document on application as contemplated in
section 31;
(f)  is entitled to seek employment; and
(g) Is entitled to the same basic health services and primary education which the
inhabitants of the Republic receive from time to time.‟

(a)
The respondents were not responsible for the appellants as they were
being deported by another country. They were in fact the responsibility of Air
Namibia, on whose flight they had been brought to South Africa. Reliance was
placed on the Chicago Convention on International Aviation, which was said
to impose that duty upon the carrier.
(b)
While being detained at the Inadmissible Facility they were not in law in
South Africa and the South African authorities and courts had no jurisdiction
over them.  They were held pending their return to Namibia and were thus not
being deported. Their status in South Africa was irrelevant to their fate.
(c)
South African courts had no jurisdiction to consider or interfere with the
execution of a deportation order issued by another country.
(d)
As deportees of another country, the appellants had no right to invoke
the protection of the Act. (A further suggestion that the appellants were being
deported by order of the Namibian High Court, contained in Marule‟s affidavit,
has no foundation in fact. No attempt was made to explain how that allegation
came to be made. Marule opined, incorrectly, that such an order must be
enforced by South African courts as a matter of course.)
(e)
In argument a further point was raised that was not referred to in the
affidavit filed on respondents‟ behalf, namely that the appellants had waived
any claim to recognition of their respective status – if such were held to have
been established – by reason of the fact that they had left the country without
the Minister‟s or any other authority‟s consent.

[16] In their replying affidavits the appellants joined issue with the
respondents‟ denial of being in possession of their files, evidencing their
status. Msizi obtained proof from the Refugee Reception Offices in Durban
and Port Elizabeth that a file existed in the Department for each appellant and
confirmed the correct file numbers. The confusion that had arisen relating to
the date upon which the appellants left the country was explained.

[17] The court below held that the appellants had not established their
respective status as a recognized refugee and an asylum seeker. It concluded
that an irresolvable dispute of fact had arisen in the affidavits in respect of this
issue. It further held that a South African court could not interfere with a

Namibian deportation order and that it could not be argued that the appellants
were in law in South Africa while being held in the Inadmissible Facility. The
application was dismissed, but the appellants were allowed to remain in the
Facility pending this appeal, leave having been granted by the court below.

[18] In argument before this court, the respondents relied upon substantially
the same defences that had been advanced in the court below. I propose to
deal with the respondents‟ grounds of opposition before commenting upon
their approach toward this matter.

[19] The appellants‟ status as an asylum seeker and a recognized refugee
respectively was established by the identification of their files and the second
appellant‟s permit. The respondents‟ allegation that the department had no
record of the appellants was refuted in the replying affidavits. The
respondents did not file an additional affidavit once the appellants‟ correct file
numbers were placed on record, which they surely would have done if the
allegations in the replying affidavits were incorrect. Indeed, the respondents‟
officials were eventually able to trace the appellants‟ files. Counsel for the
respondents informed the court from the Bar that they were in her possession
at that stage, although she was instructed that they contained no trace of the
appellants‟ permits or applications.  But that does not mean that the
applications had not been lodged nor permits issued as the appellants have
alleged, and the court below erred in holding that the appellants had not
succeeded in establishing their status.

[20] The argument that individuals who are held in an inadmissible facility at
a port of entry into the Republic are beyond the courts‟ jurisdiction flies in the
face of the decision of Lawyers for Human Rights & another v Minister of
Home Affairs & another 2004 (4) SA 125 (CC). Yacoob J said the following at
par 25 and 26:
„The government contended that our Bill of Rights does not accord protection to
foreign nationals at ports of entry who have not yet been allowed formally to enter the
country. It was accordingly suggested that the provisions in issue cannot be found to
be inconsistent with the Constitution. The government relied on s 7(1) of the

Constitution which enshrines the rights of all the people “in our country”. We were
urged to find that people at ports of entry who have not yet been allowed formally to
enter South Africa, are not “in our country” within the meaning of the subsection.

It is neither necessary nor desirable to answer the general question as to
whether the people to whom s 34 of the Act applies are beneficiaries of all the rights
in the Constitution. It is apparent from this judgment that the rights contained in s 12
and s 35(2) of the Constitution are implicated. The only relevant question in this case
therefore is whether these rights are applicable to foreign nationals who are
physically in our country but who have not been granted permission to enter and
have therefore not entered the country formally. These rights are integral to the
values of human dignity, equality and freedom that are fundamental to our
constitutional order. 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.
It could hardly be suggested that persons who are being unlawfully detained on a
ship in South African waters cannot turn to South African courts for protection, or that
a person who commits murder on board a ship in South African waters is not liable to
prosecution in a South African court.‟2

[21] It is a matter for comment that the respondents were parties to that
matter and that the Constitutional Court rejected a similar argument that was
advanced in the court below and before us. No submission was made before
us that would justify any departure by this court from the principles laid down
in that decision.

[22] Passengers on an international flight landing in South Africa are
subject to the jurisdiction of South African courts: Nkondo v Minister of Police
& another 1980 (2) SA 894 (O).  The respondents‟ submission is not only
incompatible with the provisions of the 1951 United Nations Convention on
the Status of Refugees and its Protocol as well as the 1969 Convention
Governing the Specific Aspects of Refugee Problems in Africa, but also with
the provisions of the Act, section 6 of which provides for it to be applied with
due regard to the provisions of the UN Convention and its Protocol as well as
the 1969 OAU Convention. The Act also provides for the admission of

2 See further Madala J‟s minority judgment paras 55 to 57.

foreigners who find themselves in distressed circumstances owing to the
conditions enumerated in ss 2 and 3 thereof.3

The words of the Act mirror those of the UN Convention and the OAU
Convention of 1969.4  They patently prohibit the prevention of access to the

3 „2 General prohibition of refusal of entry, expulsion, extradition or return to other country in
certain circumstances
Notwithstanding any provision of this Act or any other law to the contrary, no person may be
refused entry into the Republic, expelled, extradited or returned to any other country or be
subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or
other measure, such person is compelled to return to or remain in a country where-
(a) he or she may be subjected to persecution on account of his or her race, religion,
nationality, political opinion or membership of a particular social group; or
(b) his or her life, physical safety or freedom would be threatened on account of external
aggression, occupation, foreign domination or other events seriously disturbing or
disrupting public order in either part or the whole of that country.‟
Refugee status
Subject to Chapter 3, a person qualifies for refugee status for the purposes of this Act if
that person-
(a) owing to a well-founded fear of being persecuted by reason of his or her race, tribe,
religion, nationality, political opinion or membership of a particular social group, is
outside the country of his or her nationality and is unable or unwilling to avail himself
or herself of the protection of that country, or, not having a nationality and being
outside the country of his or her former habitual residence is unable or, owing to such
fear, unwilling to return to it; or
(b) owing to external aggression, occupation, foreign domination or events seriously
disturbing or disrupting public order in either a part or the whole of his or her country
of origin or nationality, is compelled to leave his or her place of habitual residence in
order to seek refuge elsewhere, or
(c) is a dependant of a person contemplated in paragraph (a) or (b).‟
Sections 2, 3 and 4 of the Act have been amended by the Refugees Amendment Act
33 of 2008, which has not yet been implemented. The amendments do not change
the essential spirit or import of the Act.
4 1969 OAU Convention
'Article 1
Definition of the term "Refugee"
1. For the purposes of this Convention, the term "refugee" shall mean every person who,
owing to well-founded fear of being persecuted for reasons of race, religion, nationality,
membership of a particular social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of
that country, or who, not having a nationality and being outside the country of his former
habitual residence as a result of such events is unable or, owing to such fear, is unwilling to
return to it.
2. The term "refugee" shall also apply to every person who, owing to external aggression,
occupation, foreign domination or events seriously disturbing public order in either part or the
whole of his country of origin or nationality, is compelled to leave his place of habitual
residence in order to seek refuge in another place outside his country of origin or nationality.
3. In the case of a person who has several nationalities, the term "a country of which he is a
national" shall mean each of the countries of which he is a national, and a person shall not be
deemed to be lacking the protection of the country of which he is a national if, without any
valid reason based on well-founded fear, he has not availed himself of the protection of one of
the countries of which he is a national.
4. This Convention shall cease to apply to any refugee if: (a) he has voluntarily re-availed
himself of the protection of the country of his nationality, or, (b) having lost his nationality, he
has voluntarily reacquired it, or, (c) he has acquired a new nationality, and enjoys the

Republic of any person who has been forced to flee the country of her or his
birth because of any of the circumstances identified in s 2 of the Act.
Refugees entitled to be recognised as such may more often than not arrive at
a port of entry without the necessary documentation and be placed in an
inadmissible facility.5 Such persons have a right to apply for refugee status,

protection of the country of his new nationality, or, (d) he has voluntarily re-established
himself in the country which he left or outside which he remained owing to fear of persecution,
or, (e) he can no longer, because the circumstances in connection with which
he was recognized as a refugee have ceased to exist, continue to refuse to avail himself of
the protection of the country of his nationality, or, (f) he has committed a serious non-political
crime outside his country of refuge after his admission to that country as a refugee, or, (g) he
has seriously infringed the purposes and objectives of this Convention.
5. The provisions of this Convention shall not apply to any person with respect to whom the
country of asylum has serious reasons for considering that:
(a)
he has committed a crime against peace, a war crime, or a crime against humanity,
as defined in the international instruments drawn up to make provision in respect of such
crimes;
(b)
he committed a serious non-political crime outside the country of refuge prior to his
admission to that country as a refugee;
(c)
he has been guilty of acts contrary to the purposes and principles of the
Organization of African Unity;
(d)
he has been guilty of acts contrary to the purposes and principles of the United
Nations.
For the purposes of this Convention, the Contracting State of Asylum shall determine whether
an applicant is a refugee.

Article 2
Asylum
1.
Member States of the OAU shall use their best endeavours consistent with their
respective legislations to receive refugees and to secure the settlement of those refugees
who, for well-founded reasons, are unable or unwilling to return to their country of origin or
nationality.
The grant of asylum to refugees is a peaceful and humanitarian act and shall not be
regarded as an unfriendly act by any Member State.
3.
No person shall be subjected by a Member State to measures such as rejection at the
frontier, return or expulsion, which would compel him to return to or remain in a territory where
his life, physical integrity or liberty would be threatened for the reasons set out in Article I,
paragraphs 1 and 2.
4.
Where a Member State finds difficulty in continuing to grant asylum to refugees, such
Member State may appeal directly to other Member States and through the OAU, and such
other Member States shall in the spirit of African solidarity and international cooperation take
appropriate measures to lighten the burden of the Member State granting asylum.
5.
Where a refugee has not received the right to reside in any country of asylum, he may
be granted temporary residence in any country of asylum in which he first presented himself
as a refugee pending arrangement for his resettlement in accordance with the preceding
paragraph.
6.
For reasons of security, countries of asylum shall, as far as possible, settle refugees
at a reasonable distance from the frontier of their country of origin.'
5 Yacoob J‟s description of alleged illegal foreigners in Lawyers for Human Rights supra para
20 applies in equal measure to refugees and asylum seekers:
„The provisions challenged in the High Court are of immense public importance, being
concerned with a delicate issue that has implications for the circumstances in and the extent
to which we restrict the liberty of human beings who may be said to be illegal foreigners. The
determination of this question could adversely affect not only the freedom of the people
concerned but also their dignity as human beings. The very fabric of our society and the

and it is unlawful to refuse them entry if they are bona fide in seeking refuge.
The Department‟s officials have a duty to ensure that intending applicants for
refugee status are given every reasonable opportunity to file an application
with the relevant Refugee Reception Office – unless the intending applicant is
excluded in terms of s 4 of the Act.6

[23] An intending applicant‟s rights are clearly justiciable, even if the
individual is held in an inadmissible facility. The Act indubitably applies to the
very category of persons into which the appellants fall. The respondents‟
argument that the Act does not apply to them ignores the very reason for
placing the Act on the statute book.

[24] The Act‟s provisions are in accordance with international law and
practice, as evidenced by decisions of the European Court of Human Rights
to which we were referred by counsel for the appellants: Amuur v France
(1996) 23 EHRR 533 and Riad and Idiab v Belgium No 29787/03. In both
instances that court had no difficulty in holding that municipal courts had

values embodied in our Constitution could be demeaned if the freedom and dignity of illegal
foreigners are violated in the process of preserving our national integrity.
Moreover, many of the people who arrive at a port of entry without being entitled to any of the
large variety of residence permits allowed by the Act may be vulnerable and poor without
support systems, family, friends or acquaintances in South Africa. Their understanding of the
South African legal system, its values, its laws, its lawyers and its non-governmental
organisations may be limited indeed. Finally, it is apparent that in most cases, the ship that
brought the affected person into the country would depart within a few days, and in many
cases in under 24 hours of its arrival.‟

6 „4
Exclusion from refugee status
(1) A person does not qualify for refugee status for the purposes of this Act if there is
reason to believe that he or she-
(a) has committed a crime against peace, a war crime or a crime against humanity, as
defined in any international legal instrument dealing with any such crimes; or
(b) has committed a crime which is not of a political nature and which, if committed in the
Republic, would be punishable by imprisonment; or
(c) has been guilty of acts contrary to the objects and principles of the United Nations
Organisation or the Organisation of African Unity; or
(d) enjoys the protection of any other country in which he or she has taken residence.
(2) For the purposes of subsection (1) (c), no exercise of a human right recognised under
international law may be regarded as being contrary to the objects and principles of
the United Nations Organisation or the Organisation of African Unity.‟

jurisdiction to deal with the rights of persons held in circumstances similar to
those of the appellants.

[25] The respondents relied on the Chicago Convention on International
Civil Aviation to support the argument that an inadmissible facility is the
domain of international carriers who are responsible for the transport of
deportees to the state to which the deporting state has decreed that they
should be deported to, regardless whether the deportees are refugees from
that country or not. It appears, however, that they had the previous version of
Article 5.4 of Annex 9 to the Convention (Standards and Recommended
Practices on Facilitation) in mind, which placed the responsibility for looking
after a person who was denied entry into a contracting state‟s territory on the
carrier who transported him or her to the relevant Port of Entry. Counsel for
the appellant drew attention to the latest version of this particular Article, to
which a note was added in 2005 which reads:
„Note – nothing in this provision is to be construed so as to allow the return of a
person seeking asylum in the territory of a Contracting State, to a country where his
life or freedom would be threatened on account of his race, religion, nationality,
membership in a particular social group or political opinion.‟
The Convention, which has been incorporated into our municipal law by the
Civil Aviation Act 13 of 2009, thus provides no support for the respondents‟
case.

[26] The appellants would face a real risk of suffering physical harm if they
were forced to return to Somalia. It is obvious that no effective guarantee can
be given that the appellants would not be persecuted or subjected to some
form of torture, or cruel, inhuman and degrading treatment if they are
compelled to re-enter that country. It is the prevention of this harm that the Act
seeks to address by prohibiting a refugee‟s deportation. Deportation to
another state that would result in the imposition of a cruel, unusual or
degrading punishment is in conflict with the fundamental values of the
Constitution: Mohamed & another v President of the Republic of South Africa

& others (Society for the Abolition of the Death Penalty in South Africa &
another intervening) 2001 (3) SA 893 (CC) in which the court stated:7

„In Makwanyane Chaskalson P said that by committing ourselves to a society
founded on the recognition of human rights we are required to give particular value to
the rights to life and dignity, and that 'this must be demonstrated by the State in
everything that it does'. In handing Mohamed over to the United States without
securing an assurance that he would not be sentenced to death, the immigration
authorities failed to give any value to Mohamed's right to
life, his right to have his human dignity respected and protected and his right not to
be subjected to cruel, inhuman or degrading punishment. . . .
„ But whatever the position may be under Canadian law where deprivation of the right
to life, liberty and human dignity is dependent upon the fundamental principles of
justice, our Constitution sets different standards for protecting the right to life, to
human dignity and the right not to be treated or punished in a cruel, inhuman or
degrading way. Under our Constitution these rights are not qualified by other
principles of justice. There are no such exceptions to the protection of these rights.
Where the removal of a person to another country is effected by the State in
circumstances that threaten the life or human dignity of such person, ss 10 and 11 of
the Bill of Rights are implicated.  There can be no doubt that the removal of
Mohamed to the United States of America posed such a threat. This is perhaps best
demonstrated by reference to the case of Salim, who was extradited from Germany
to the United States subject to an assurance that the death penalty would not be
imposed on him. This assurance has been implemented by the United States and
Salim is to be tried in proceedings in which the death sentence will not be sought. . . .
It is not only ss 10 and 11 of the Constitution that are implicated in the present case.
According to s 12(1)(d) and (e) of our Constitution, everyone has the right to freedom
and security of the person, which includes the right not to be tortured in any way and
not to be treated or punished in a cruel, inhuman or degrading way. For the reasons
given in Makwanyane, South African law considers a sentence of death to be cruel,
inhuman and degrading punishment.‟

[27] By the same token, refusing a refugee entry to this country, and
thereby exposing her or him to the risk of persecution or physical violence in
his home country is in conflict with the fundamental values of the Constitution.

7 Paragraphs 48, 52 and 54.

[28] The argument that a South African court has no jurisdiction over the
Inadmissible Facility by virtue of the fiction that it does not form part of the
Republic‟s territory is wrong. Potential asylum seekers and refugees held in
that facility are entitled to the assistance of the Department‟s officials and
need show no more than that they are persons who might qualify as refugees
or asylum seekers. Whether or not the appellants were previously admitted to
the Republic or were granted the status of recognized refugee or asylum
seeker is irrelevant for the determination of this question.

[29] The suggestion that a Namibian deportation order precludes the South
African authorities and courts from dealing with the case of a Namibian
deportee who is held in an inadmissible facility at a South African port of entry
is untenable. If correct, it would constitute an unwarranted administrative
intrusion into the affairs of the Republic, a sovereign state. This suggestion is
foreign to international law: Commissioner of Taxes, Federation of Rhodesia v
McFarland 1965 (1) SA 470 (W) at 473G - 474G. A sovereign State has
exclusive control over its territory. Foreign States may exercise only such
authority in its domain as may be agreed by international treaty. Dugard
International Law – A South African Perspective 3rd ed (2005) p 82 states that
statehood is defined by a) a permanent population; b) a defined territory; c)
government; and d) capacity to enter into relations with other states. He adds
in respect of the characteristic of government: „In order to meet this
requirement a state must have a government that is in effective control of its
territory, and that is independent of any other authority.‟  South Africa is
clearly a sovereign and independent state.8 The appellants are within this

8 Friedman J identified independence in a defined territory as a key aspect of sovereignty in S
v Banda & others 1989 (4) SA 519 (BG) at 524F – 525G, adopting the concept of territorial
sovereignty coined in the Island of Palmas Arbitration by Max Huber.
„ It is beyond question that the Republic of South Africa is a sovereign State having majestas,
and is recognised as such internationally. Sovereignty has been defined in international law
G by Max Huber, Arbitrator on Territorial Sovereignty, in Island of Palmas Arbitration (1928)
22 AJIL 867 at 874, 875, 876 as follows:
“. . .Sovereignty in relation to a portion of the surface of the globe is the legal condition
necessary for the inclusion of such portion in the territory of any particular State. . . .
Sovereignty in the relation between States signifies independence. Independence in regard to
a portion of the globe is the right to exercise therein, to the exclusion of any other State, the
functions of a State. The development of the national organisation of States during the last

country and are entitled to the protection of its laws, even if they happen to
have arrived here in the course of being deported from another sovereign and
independent state The respondents‟ contrary contentions are without merit.

[30] The respondents sought to persuade this Court that the appellants
were not held by them, but by the fourth and fifth respondents, who fall under
the Department of Transport‟s jurisdiction. This argument was not raised in
the court below. It is pure sophistry. Refugees are the responsibility of the
respondents, who are tasked by the Act to attend to individuals who find
themselves in such invidious circumstances. The fourth and fifth respondents

few centuries and, as a corollary, the development of international law, have established this
principle of the exclusive competence of the State in regard to its own territory in such a way
to make it the point of departure in settling most questions that concern international relations.
. . .
Territorial sovereignty, as has already been said, involves the exclusive right to display the
activities of a State. This right has as a corollary a duty: the obligation to protect within the
territory the rights of other States, in particular their right to integrity and inviolability in peace
and in war, together with the rights which each State may claim for its nationals in foreign
territory. Without manifesting its territorial sovereignty in a manner corresponding to
circumstances, the State cannot fulfil this duty. Territorial sovereignty cannot limit itself to its
negative side, ie to excluding the activities of other States; for it serves to divide between
nations the space upon which human activities are employed, in order to assure them at all
points in the minimum of protection of which international law is the guardian. . . . ”
„An incident of the general right of sovereignty is the right of a State to deal with its territory.
According to the Journal of American Jurisprudence:
'It is part of the general right of sovereignty belonging to independent nations to establish and
fix the disputed boundaries between their respective limits. The boundaries so established
and fixed by compact between nations become conclusive on all the subjects and citizens
thereof, and bind their rights; they are to be treated, to all intents and purposes, as the real
boundaries. Included within the territory of a nation are all such islands as are natural
appendages of the coast on which they border and from which they are formed. It is
immaterial whether they are formed of earth, sand, rock, or some other substance, or whether
they are of sufficient firmness to be inhabited or fortified. Islands of alluviation are within the
rule. Governments as well as private persons are bound by the practical line that has been
recognised and adopted as their boundary. A settlement of national boundaries is not a
judicial, but a political, question. The courts are bound by the decisions of the executive and
legislative departments of the government in this respect, and judicial notice may be taken of
the territorial extent of the nation whose laws the courts administer.'
(See 45 Am Jur 2d S 23 at 363.) 'Sovereignty' has been further defined in 45 Am Jur 2d S 37
at 378 as follows:
'"Sovereignty", in its full sense, imports the supreme, absolute, and uncontrollable power by
which an independent State is governed. (Moore v Smaw 17 Cal 199, 218; M Salimoff & Co v
Standard Oil Co 237 App Div 686, 262 NYS 639, affd 262 NY 220, 186 NE 679,  F 89 ALR
345. For other definitions, see Brandes v Mitterling 67 Ariz 349, 196 P2d 464; Bisbee v
Cochise County 52 Ariz 1, 78 P2d 982; Antonik v Chamberlain 81 Ohio App 465, 37 Ohio Ops
305, 78 NE2d 752.)'
In addition thereto, each State legislates for itself, but its legislation can operate on itself
alone, and except as otherwise provided by statute or government, only within its own
territory.‟

did not oppose the application. The respondents‟ refusal to allow the
appellants to enter the country is the single cause for their continued sojourn
in the Inadmissible Facility. Nothing more need be said about this submission.

[31] The respondents‟ contention that the appellants would not be deported,
but only returned to Namibia, where they would not face physical hardship, is
also bereft of validity. If returned to Namibia the appellants would simply be
deported again – this time perhaps via another country - to Somalia.

[32] The further suggestion that the appellants had waived their right to be
considered as refugees or asylum seekers, advanced for the first time in
reaction to a question by this court, faces insurmountable obstacles. Waiver is
never to be presumed, especially not in respect of an alleged surrender of the
protection afforded by fundamental rights.9  Quite apart from the fact that
reg 9(1) published in terms of the Act expressly provides for a second
application by a returning refugee, there is nothing in the papers to suggest
that the appellants were aware of the full extent of their rights, or that they
appreciated that their departure might be regarded as a waiver of the
protection they enjoyed under the Act. There can be no suggestion that the
appellants intended to abandon their respective refugee or asylum seeker
status.

[33] It follows that the appeal must succeed. However, it is unfortunately
necessary to comment upon the respondents‟ approach to this litigation.
Section 7 of the Constitution imposes the duty on organs of State – and thus
on officials of the Department – to „respect, promote and fulfil the rights in the
Bill of Rights.‟ The respondents‟ officials have failed to comply with these
demands. It is obvious from the manner in which they dealt with the
appellants that they had little regard to their fears for their safety should they
be compelled to return to Somalia.

9 Mahomed’s case paras 62 to 64.

[34] A copy of the second appellant‟s Recognised Refugee Status Permit
was annexed to the founding affidavit. It contained a clear fingerprint and a
clear Bar Code which, if it had been read even once, would have provided
confirmation of second appellant‟s status and identity. Marule failed to inform
the court whether or not he had inspected the Bar Code. He adopted an
evasive approach by arguing that if second appellant had left the country in
2009, he could not have been issued with a permit in 2010. When the correct
date was recorded in the replying affidavit, no attempt was made to place the
correct information on record and to concede what could not be denied.
Instead, Marule indulged in a sophistic exercise of referring to another official,
one Sibanyone, who had allegedly informed him that the permit was not
authentic. Her so-called confirmatory affidavit, upon which he relied, revealed
no more than a laconic confirmation of Marule‟s allegation as far as they
related to her. This slothful way of placing Sibanyone‟s evidence before the
court resulted in her confirming no more than that she had told Marule what
he said she had, but this is no evidence of the truth of the content of that
statement or why she had said that the permit was not authentic. This comes
perilously close to a deliberate failure to take the court into the official‟s
confidence.

[35] Similar criticism must be levelled at the respondents‟ failure to inform
the court immediately of the fact that the appellants‟ files had been traced in
the Department‟s records. In spite of the fact that the respondents could no
longer harbour any doubt about the appellant‟s identity once the correct file
numbers were placed on record, and they were therefore in duty bound to set
the record straight, the respondents persisted in their heads of argument with
the denial of being in possession of any record relating to the appellants,
putting them to needless effort and expense to meet this spurious defence.

[36] Our courts have on several occasions expressed their disquiet at the
failure of Government officials, including the Department‟s officials, to respect
the rights of individuals they deal with and to act in accordance with their
duties imposed by the Constitution: Eveleth v Minister of Home Affairs &
another 2004 (11) BCLR 1223 (T) paras 45 to 48; Nyathi v MEC for the

Gauteng Deparrtment of Health & another 2008 (5) SA 94 (CC); Total
Computer Services (Pty) Ltd v Municipal Mayor, Potchefstroom Local
Municipality & others 2008 (4) SA 346 (T) para 21;  Van Straaten v President
of the Republic of South Africa & others 2009 (3) SA 457 (CC). In the present
instance the respondents‟ officials failed to understand the very object and
purpose of the Act it was their duty to apply, causing unnecessary litigation
and wasted costs. Had the appellants given timeous notice of an intention to
apply for a punitive costs order, such would in all likelihood have been
granted.

[37] The respondents also argued that even if the appeal succeeded they
should not be held liable for the appellants‟ costs. This argument, too, is
devoid of substance. The appellants had to approach a court to avoid their
deportation and this court in order to obtain relief denied them in the court
below. There is no reason for costs not to follow the event.

[38] The appeal is upheld with costs, including the costs of two counsel.
The order of the court a quo is set aside and replaced with the following order
(for completeness I repeat paragraphs 1 – 4 of the order granted at the
conclusion of the appeal):

„1.
The Fourth and Fifth Respondents are directed forthwith to release the
Applicants from detention in the Inadmissible Facility at OR Tambo International
Airport.
2.
It is declared that the First Applicant is entitled to remain in South Africa until
a decision has been made on his application for asylum and, where applicable, the
Applicant has had an opportunity to exhaust his rights of review or appeal in terms of
Chapter 2 of the Refugees Act 130 of 1998 and the Promotion of Administrative
Justice Act 3 of 2000.
3.
It is declared that the Second Applicant is entitled to remain in South Africa in
accordance with his status as a refugee.
4.
The First and Second Respondents are directed forthwith to issue each of the
First and Second Applicants with an Asylum Transit Permit in terms of section 23 of
the Immigration Act 13 of 2002. Such permits shall remain valid for 14 days, during
which period the First and Second Applicant will reside at My Lillipot Shelter, 4th

Street Rosettenville, or such other address as it provided to the First and Second
Respondents.
5.
The first and second respondents are ordered to pay the costs of the
application, jointly and severally, the one to pay, the other to be absolved, including
the costs of two counsel where applicable.‟

_________________________
E BERTELSMANN
ACTING JUDGE OF APPEAL

APPEARANCES:

For appellants:
S Budlender

J van Garderen

N Lewis

Instructed by:

Lawyers for Human Rights Johannesburg Law Clinic,
Johannesburg

Webbers, Bloemfontein

For respondents:
N Cassim SC

N Manaka

Instructed by:

The State Attorney, Pretoria

The State Attorney, Bloemfontein