Abore v Minister of Home Affairs and Another

Desta Abore, an illegal foreigner from Ethiopia, entered South Africa illegally from Zimbabwe. He alleged involvement in opposition politics in Ethiopia and feared persecution. On 8 June 2020, he was arrested in Eshowe, KwaZulu-Natal for unlawful entry and residing in South Africa. On 7 July 2020, the Eshowe Magistrates' Court convicted him and sentenced him to 50 days' imprisonment with an option to pay R1,500 fine. The fine was paid on his behalf, but he remained detained. He subsequently expressed an intention to apply for asylum while detained at Lindela Repatriation Centre pending deportation. The High Court, Johannesburg dismissed his application for relief preventing deportation and declaring his detention unlawful, and he appealed directly to the Constitutional Court.

• Whether leave for direct appeal to the Constitutional Court should be granted
• Whether the Refugees Amendment Act 11 of 2017 and new Regulations apply to Mr Abore
• Whether an illegal foreigner who expresses an intention to apply for asylum should be permitted to do so despite the amendments to the Refugees Act
• Whether a delay in expressing an intention to apply for asylum bars an illegal foreigner from applying for refugee status
• Whether Mr Abore's detention was unlawful
• Whether the principle of non-refoulement under section 2 of the Refugees Act 130 of 1998 remains applicable after the amendments

1. Leave for direct appeal is granted. 2. The appeal is upheld. 3. The order of the High Court is set aside and substituted with: a) Declaration that Mr Abore is entitled to remain lawfully in South Africa under section 2 of the Refugees Act read with the Refugees Amendment Act, and respondents must refrain from deporting him until his status is determined and finalized; b) Respondents directed to take reasonable steps within 14 days to give effect to Mr Abore's intention to apply for asylum in terms of section 21(1B) of the Refugees Amendment Act; c) Declaration that Mr Abore's continued detention during 26 August 2020 to 7 February 2021, and 30 May 2021 to 25 June 2021, was unlawful. 4. Respondents must pay applicant's costs in both High Court and Constitutional Court, including costs of two counsel.

Section 2 of the Refugees Act 130 of 1998, which embodies the principle of non-refoulement, has not been amended and continues to apply notwithstanding any contrary provisions in the Refugees Act or any other law. The principle of non-refoulement protects both de facto refugees (asylum seekers whose status has not been confirmed) and de jure refugees (those whose status has been determined) from deportation until their refugee status has been finally determined through proper procedure. While the Refugees Amendment Act 11 of 2017 introduces additional procedural requirements (including the requirement to show good cause for illegal entry under regulation 8(3) and to be interviewed under section 21(1B)), these amendments do not override or diminish the protection afforded by section 2. Delay in expressing an intention to apply for asylum is relevant to credibility assessment but cannot function as an absolute disqualification from initiating the asylum application process. The relevant date for determining which legislative regime applies is the date when the asylum seeker demonstrably evinced an intention to apply for asylum.

The Court made observations about the historical context of South Africa's refugee law, noting that the country became a constitutional democracy and acceded to the 1951 Convention and its 1967 Protocol without reservation on 12 January 1996. The Court emphasized the profound significance of refugee protection given South Africa's own history of producing refugees during the apartheid era when people fled persecution from 1948 onwards. The Court noted that section 2 of the Refugees Act is "a remarkable provision" and "perhaps unprecedented in the history of our country's enactments" due to its supremacy over all other legal provisions. The Court observed that asylum seekers who enter illegally often provide contradictory information about their arrival, which is likely a result of their vulnerability, and this justifies why a separate regime applies to asylum seekers as opposed to other illegal foreigners. The Court also commented that the amendments create "different procedures and entitlements" for asylum seekers but do not bar them from applying for asylum.

This case provides crucial clarity on the continued applicability of the principle of non-refoulement after the 2017 amendments to the Refugees Act. It confirms that section 2 of the Refugees Act remains paramount and applies notwithstanding any contrary provisions in the Act itself or any other law. The judgment clarifies that while the Refugees Amendment Act 11 of 2017 and new Regulations impose additional procedural requirements (such as showing good cause for illegal entry and being interviewed about absence of asylum transit visa), these do not override the fundamental protection against refoulement. The case reinforces that delay in expressing intention to apply for asylum cannot be used as an absolute bar to the asylum application process, though it remains relevant to credibility assessment. The judgment is significant in maintaining South Africa's commitment to international refugee law principles and the 1951 Convention Relating to the Status of Refugees, despite more stringent procedural requirements introduced by the amendments.