Arse v Minister of Home Affairs and Others

The appellant, an Ethiopian national, entered South Africa in December 2008 seeking asylum. He was issued with a 14-day asylum transit permit under s 23 of the Immigration Act to report to a Refugee Reception Office but was unable to lodge his asylum application within that period due to administrative obstacles. In May 2009 he was arrested and detained, and from June 2009 he was held at Lindela Holding Facility. With assistance from Home Affairs officials, he applied for asylum in September 2009 and was issued an asylum seeker permit under s 22 of the Refugees Act, but his application was rejected the same day. He appealed to the Refugee Appeal Board, which had not yet decided the appeal. Despite the pending appeal, he remained detained. His urgent High Court application for release was dismissed, leading to this appeal.

The appeal was upheld with costs. The High Court order was set aside. The appellant’s detention was declared unlawful. The Minister and Director-General of Home Affairs were directed to re-issue an asylum seeker permit under s 22 of the Refugees Act, to release the appellant immediately, and to pay the appellant’s costs, including the costs of two counsel.

The case is significant for affirming strong constitutional and statutory protections against unlawful detention of asylum seekers. It clarifies that detention under the Immigration Act is strictly limited by statutory timeframes and judicial oversight, and that asylum seekers with pending applications or appeals may not be treated as deportable illegal foreigners. It reinforces the principle that courts cannot impose conditions on the release of persons who are unlawfully detained.