The case against the Department of Home Affairs has been postponed in the Western Cape High Court. Photo: Masixole Feni
28 April 2016
The case between the Department of Home Affairs and immigration lawyers, who are accusing the department of being in contempt of a High Court order, has been postponed to next month.
The case arose after Home Affairs withdrew an instruction allowing asylum seekers and refugees to apply for permanent residence without giving up their asylum or refugee status. They also withdrew an instruction allowing asylum seekers and refugees to apply for temporary residence without a valid passport.
The matter was set down for 21 April in the Western Cape High Court, but Home Affairs requested a postponement as it was not ready for court proceedings.
Gershon Mosiane, Chairperson for the Forum of Immigration Practitioners of South Africa (Fipsa), which is bringing the case, accused Home Affairs of continuing to “frustrate the lives of asylum seekers and refugee seekers by deliberately delaying court processes”, of “not filing answering affidavits timeously” and of wasting taxpayers’ money.
The Department has been instructed to file answering affidavits by 9 May or face an additional contempt of court order. The Department of Home Affairs declined to comment on the reasons for the delay.
Mosiane said the actions taken by Home Affairs made it increasingly difficult for asylum-seekers to marry and register newborn babies with South African spouses, hindered their ability to obtain skilled employment, and prevented them from opening South African bank accounts.
Mkuseli Apleni, Director General for Home Affairs, signed a directive on 3 February stating the department’s belief that the status of asylum seekers should not change to temporary or permanent resident until their refugee status was established. The directive also stated that a 2008 circular that allowed asylum seekers to request permanent residence had “fallen away since the 26th of May 2014 and is hereby officially withdrawn.”
Mosiane said Home Affairs was “breaking the law,” citing a 2003 Western Cape High Court consent order protecting the ability of asylum seekers and refugees to apply for temporary or permanent residence without having to give up their asylum seeker or refugee status. The court order also stated that asylum seekers or refugees did not need to have a valid passport to obtain temporary residence permits.
Mosiane said that judgment was binding and any deviation amounted to contempt of court.
Fipsa and other parties bringing the action to court will be represented by Tashriq Ahmed.