South Africa: Court releases illegally detained asylum seeker

JOHANNESBURG , 26 February 2010 (IRIN) - South Africa's Supreme Court of Appeal ordered the Department of Home Affairs on 24 February 2010 to immediately release an Ethiopian asylum seeker from "unlawful" detention after he had languished in repatriation centres for over nine months.

Costs were also awarded against the Minister of Home Affairs and the Director-General of the Department in an order that Gina Snyman, of the Lawyers for Human Rights (LHR) Refugee and Migrant Rights Project, termed a "scathing rebuke".

LHR requested that the identity of the man not be disclosed for fear of retribution should he be deported to Ethiopia. He is a political activist of the Oromo Liberation Front (OLF), a separatist organization "established in 1973 by Oromo nationalists to lead the national liberation struggle of the Oromo people against the Abyssinian colonial rule," according to its website.

The man was first arrested in Port Elizabeth, on the south coast of the country, for being an "illegal foreigner" and then "detained at the Lindela Repatriation Centre for more than 275 days", the LHR said in a statement.

The Lindela centre is in Gauteng Province in the north of the country, about 40km from Johannesburg, and is the main departure point for deporting and repatriating undocumented foreign nationals from South Africa.

"The court found that home affairs had no basis to detain the asylum seeker. Highlighting the clear illegality of the detention, the court suggested that the department either did not understand the law, or had chosen to ignore it," LHR said.

LHR have brought three cases against home affairs for illegal detention of asylum seekers since January 2010. "There are many individuals at Lindela who have been held beyond the 120-day period permitted by law, and many who are held without the department properly obtaining the legally required warrants. The effect is that these detentions are occurring outside of the law," Snyman said.

Bosasa, a private company contracted by home affairs to administer Lindela Repatriation Centre, was named as the third respondent in the court of appeal. The company has been awarded numerous government and provincial contracts, including for transport and at prisons, but persistent allegations of graft have frequently put the company in the headlines.

Gavin Watson, Bosasa's chief executive, is closely linked to the ruling African National Congress as a result of the Watson family's anti-apartheid credentials.

Snyman said the Lindela facilities were "very good in comparison to correctional services [prisons], but psychologically there is a greater impact [on detainees at Lindela], as they do not see themselves as criminals."

Ignoring the law

They were often unaware of their rights, and Lindela made no provision for communicating in languages other than English or South African vernacular languages, she said. There were no books or recreational facilities, apart from a television that only showed programmes by the state broadcaster.

Home affairs minister Nkosazana Dlamini-Zuma visited Lindela in November 2009 and highlighted delays encountered in the deportation process, but "failed to acknowledge that many deportations are occurring outside of the law", LHR noted at the time of the minister's visit.

"Moreover, asylum seekers detained under the Refugees Act must appear before a judge of the High Court after 30 days. LHR has not come across a single asylum seeker who was brought before a judge after 30 days," LHR said.

Home affairs continued to oppose court applications, "despite the courts consistently finding that any deprivation of liberty in these cases must be in strict compliance with the law," said Snyman.

"The order [releasing the Ethiopian asylum seeker] sends a strong message that the courts will not condone or facilitate the ongoing illegalities in the detention process."

go/he