Legal battle over detention of undocumented foreign nationals heads to Full Court

The Gauteng High Court will hear 33 urgent applications concerning the detention of undocumented foreign nationals who express an intention to seek asylum, amid differing judicial interpretations of a Constitutional Court ruling on access to asylum procedures.

The detention of prospective asylum seekers will come under scrutiny at the Gauteng High Court in Johannesburg next month, where a full bench is set to hear 33 urgent applications.

This comes after the hearing of proceedings concerning the detention of prospective asylum seekers was postponed to be heard November 16 to 18.

The hearing, initially scheduled for Thursday, was postponed because the proceedings had expanded substantially since being enrolled, with five amici curiae and two intervening parties admitted.

In a media statement on Wednesday, the court said the matter, which was initially allocated one hearing day, now required more days for proper determination.

The proceedings comprise 33 urgent applications referred by the Judge President of the Gauteng Division to a full bench to determine important legal and constitutional questions concerning the detention of undocumented foreign nationals who express an intention to apply for asylum.

The referral followed differing judicial approaches to the effect of the Constitutional Court’s judgment in Scalabrini Centre of Cape Town v Minister of Home Affairs and Others.

“The postponement has become necessary due to the substantial expansion of the proceedings since they were enrolled. Five amici curiae and two intervening parties have been admitted.

“In addition, one of the applicants belatedly filed a Rule 16A notice raising constitutional issues, while several parties filed affidavits out of time, resulting in further affidavits and supplementary written submissions.

“The matter, initially allocated a single hearing day, now requires three hearing days for its proper determination.”

On October 21, one of the applicants filed a notice under Rule 16A of the Uniform Rules of Court, raising additional constitutional issues concerning the detention of people who express an intention to seek asylum.

Rule 16A requires notice to be given when constitutional issues are raised in litigation, allowing interested parties to apply for admission as amici curiae, or friends of the court.

The court has directed shortened timeframes under Rule 6(12) to allow interested people and organisations to participate in relation to the constitutional issues identified in the notice.

Aanyone wishing to apply for admission as an amicus curiae must submit an application, together with written submissions, by November 6.

The postponement comes amid heightened tensions surrounding immigration, following violent protests in KwaZulu-Natal and Gauteng during which several cars and houses were torched, shops were looted, and foreign nationals were assaulted and killed.

The proceedings follow a Constitutional Court judgment in July that upheld an earlier Western Cape High Court ruling declaring parts of the Refugees Act unconstitutional and invalid.

The judgment strengthened procedural protections for asylum seekers, making clear that administrative requirements could not automatically prevent people from accessing the asylum system.

The postponement also comes after the Inter-Ministerial Committee previously indicated that it would approach the courts for a supervisory order to oversee the implementation of the ruling.

The committee said the move was intended to address concerns about implementing the judgment while the government continues to manage asylum applications and enforce immigration laws.