Arse v Minister of Home Affairs and Others (25/2010) [2010] ZASCA 9

12th March 2010

Summary: Refugees Act 130 of 1998 and Immigration Act 13 of 2002 - enactments to be read together - appellant an asylum seeker issued with asylum transit permit in terms of s 23 of Immigration Act ­- asylum seeker permit issued in terms of s 22 of Refugees Act - whether detention of appellant lawful.

On appeal from: South Gauteng High Court (Johannesburg) (Willis J sitting as court of first instance):

An order is made in the following terms -

(1) The appeal is upheld with costs including the costs of two counsel;

(2) The order of the court a quo is set aside and replaced with the following order:

‘(a) the detention of the applicant is declared to be unlawful;

(b) the first and second respondents are directed to re-issue the applicant with an asylum seeker permit in accordance with s 22 of the Refugees Act 130 of 1998 which permit shall remain valid until a decision has been made on the applicant's application for asylum and, where applicable, the applicant has had an opportunity to exhaust his rights of review or appeal in terms of Chapter 4 of the Refugees Act and the Promotion of Administrative Justice Act 3 of 2000;

(c) the respondents are directed immediately to release the applicant in possession of the asylum seeker permit as set out above; and

(d) the first and second respondents are directed to pay the applicant's costs including the costs of two counsel.'