Abore v Minister of Home Affairs and Another

Mr Desta Abore, an Ethiopian national, entered South Africa illegally from Zimbabwe and was arrested in June 2020 for unlawful entry and residence under the Immigration Act. He was convicted and sentenced to imprisonment with the option of a fine, which he alleges was paid, yet he remained detained. While in detention and facing deportation, Mr Abore expressed an intention to apply for asylum, claiming fear of persecution due to opposition political activities in Ethiopia. He was detained for extended periods at Lindela Repatriation Centre under warrants issued by magistrates’ courts. The High Court dismissed his application to prevent deportation and declared his detention lawful, holding that his delay in indicating an intention to apply for asylum disentitled him to protection. Mr Abore sought leave to appeal directly to the Constitutional Court.

The appeal was upheld. The High Court’s order was set aside and replaced with an order declaring that Mr Abore is entitled to remain lawfully in South Africa pending finalisation of his asylum application; directing the respondents to take reasonable steps within 14 days to give effect to his intention to apply for asylum; declaring specified periods of his detention unlawful; and ordering the respondents to pay costs in both the High Court and the Constitutional Court.

This case is significant for clarifying that the Refugees Amendment Act and new Regulations did not displace the Constitutional Court’s earlier jurisprudence in Ruta. It reaffirms the principle of non-refoulement, confirms that delay in seeking asylum does not forfeit protection, and limits the state’s power to detain and deport individuals who express an intention to apply for asylum.