– about foreigners seeking asylum: appeal court not impressed
IT’S not every day that you read an appeal decision commenting on the way a trial court handled a matter using words like these: ‘It is a matter of grave concern when fundamental rules of litigation are so flagrantly flouted. … This is judicial conduct that is fundamentally unacceptable.’
But these and similar criticisms pepper judgment in a case brought to the appeal court by Yene Bula and 18 other Ethiopians seeking asylum in South Africa.
Before they could apply however they were arrested, detained and threatened with deportation. Lawyers for Human Rights, acting for the 19, argued the appeal on November 9 and at the end of the hearing the appeal judges ordered the state to release 19 immediately so they could apply for asylum. Once they had done so, said the court, the state had to issue them with temporary asylum seeker permits.
This week the court gave its reasons for the order: the appeal was about the ‘principle of legality’, said the judges, and aspects of the way the proceedings had been conducted in the high court had to be addressed ‘in the interests of the proper administration of justice’.
The 19 would-be asylum seekers say they fled Ethiopia in about May 2010 to escape political persecution, and ‘in fear of their lives, walked for a year through Kenya, Tanzania and Mozambique before arriving in South Africa’. They crossed the border without being stopped and eventually arrived in Johannesburg on 16 June 2011. That evening however they were arrested by the police.
Held as ‘illegal foreigners’ at a deportation centre, they waited ejectment from South Africa. Then Lawyers for Human Rights took up their case and wrote to the authorities saying they should be released in order that they could apply for asylum. When there was no reply LHR took the matter to court. The matter was heard by Acting Judge Cassim, and exactly what transpired in court, though it makes for riveting reading, is too long to detail here except for a couple of examples of the judge’s behaviour.
At one point Bula was giving evidence about making his way to Johannesburg once he had crossed the border. How did he know about ‘the existence of Johannesburg’, the judge asked. When Bula said everyone knew about Johannesburg, Cassim again interrupted: ‘No man, I am not a child. I do not want to believe him if he is telling me he walked at night from the border to Johannesburg by asking people, show me the direction of Johannesburg. This is not fairytales.’
Later on the judge again interrupted saying that he was ‘committed to this country’ and did not want it ‘to be ungovernable’.
‘You cannot seriously (contend) that I must accept that they came in the middle of the night and walked from the border to Johannesburg. Try to give that explanation in any Western country, you will be put on a flight that same afternoon, well what is different from us?’
Cassim put it to Bula that he had been helped to get to Johannesburg by a ‘syndicate involved in human trafficking’, adding, ‘Mayfair is known where there is a lot of foreign African communities and one must look at probabilities ….’
He added, ‘I cannot accept that 19 applicants can be set free to roam the streets of our country as would be the effect of this court releasing (them). That will be tantamount to irresponsible and reckless conduct.’
In their critique of the decision the appeal judges were, in my view, a model of restraint. Cassim had ‘indulged in pontification and was patronising’. Moreover, he made factual findings right from the start instead of waiting until he had heard all the evidence before coming to any conclusion.
As for his finding that the group was involved in ‘human trafficking’, there was no basis for it in any of the evidence. It was pure supposition by the judge and was thus ‘the very antithesis of the supremacy of the rule of law which is a founding constitutional value.’
In his ‘unacceptable’ remarks about foreigners Cassim was ‘far from tempered’ and his comments had the potential for ‘creating and heightening tensions between nationals and foreigners’, said the court.
The appeal judges avoided the word ‘xenophobia’, but by the end of their decision you have to confront the question: how is it possible to combat xenophobia in South African communities when a judge no less, makes inflammatory remarks such as these?