Judge President Ledwaba sends asylum detention cases to full bench for clarity

Gauteng Judge President Aubrey Ledwaba has turned to a full bench of the High Court for clarity on how the courts should approach matters involving undocumented asylum seekers who are detained and facing deportation.

As SABC News reported on 7 October, the referral was discussed on air with Maliza Swart, an immigration, refugee and citizenship attorney at Craig Smith & Associates. A full bench means three judges sitting together rather than one, and its purpose is to settle an approach that lower courts can then follow consistently.

That consistency matters to a specific group of people: asylum seekers whose claims have not been resolved, who are held in detention, and who face being put on a plane or driven to a border post before a judge has ruled on their case. South Africa’s asylum system runs through the Department of Home Affairs, which receives and adjudicates claims, and through the police and the Department of Home Affairs’ inspectorate, which carry out arrests and deportations. The courts sit above both.

What the referral signals is that judges have been reaching different conclusions on the same kind of facts. Where one court may grant an urgent interdict stopping a deportation so that a claim can be heard, another may decline on the basis that the applicant has no valid permit and is therefore unlawfully in the country. The result is that a person’s chance of staying long enough to have their case heard can depend on which judge hears the matter that day. A full bench judgment would give the whole division a single framework.

For an ordinary reader, the practical effect is about how long someone can be held. South Africa’s immigration law allows for detention pending deportation, and detention can be extended by a court. There is no published, up-to-date national figure for how many people are held in immigration detention at any one time, and no published average waiting period. That gap is itself part of the story. When the numbers are not known, it is difficult for anyone outside the system to say whether detention is being used as a short administrative step or as a long holding pattern.

The referral also lands in a system that has been under strain for years. Home Affairs has repeatedly acknowledged a backlog in asylum adjudication, and the department has been the subject of court orders requiring it to decide claims within set periods. The courts have, in several reported matters, intervened to stop deportations where a claim was still pending. Those interventions are the reason the question of a uniform approach has been put to a full bench rather than left to individual judges.

SABC News framed the development as the Judge President seeking clarity on the approach to these matters. That is accurate as far as it goes. What a South African reader will notice is that the referral is a procedural step, not a ruling. It does not free anyone, and it does not change the law. It sets up a hearing at which the court will decide how it wants these cases handled, and the outcome will then bind the courts in Gauteng and likely guide others.

Immigration attorneys have long argued that the practical problem is not the law on paper but the speed at which it is applied. A person who has lodged an asylum claim is entitled to have that claim considered. If the claim is considered only after the person has already been removed, the right becomes meaningless. That is the tension the full bench has been asked to resolve.

There is no date yet for the full bench hearing, and no indication of which judges will sit. The Enquirer will report the outcome when the court hands down its decision. Until then, the position on the ground is unchanged: people are detained, some are deported, and the courts continue to hear urgent applications one at a time.

Source: SABC News, Full High Court bench to clarify approach to cases of asylum seekers detained and facing deportation (https://www.youtube.com/watch?v=Qdzx0GaK_as)