Full bench to set framework after contradictory Gauteng rulings
JOHANNESBURG — The Gauteng High Court will convene a full bench to resolve conflicting interpretations of a July Constitutional Court judgment that affects how detained asylum seekers are to be treated. Judge President Aubrey Ledwaba has also placed a moratorium on hearing related applications in the province until the full court meets.
The constitutional judgment struck down provisions of the Refugees Act which allowed for deportation of people who could not show valid or compelling reasons for being in South Africa without a transit visa, effectively finding that asylum seekers must be permitted access to the asylum system before deportation can occur.
Since that apex court decision, two Gauteng High Court judges have handed down diverging orders. In August, Judge Mandlenkosi Motha dealt with 21 applications lodged on behalf of Ethiopian, Congolese and Nigerian nationals detained at the Lindela Repatriation Centre. Those applicants said they wished to apply for asylum but had not yet been interviewed by a refugee reception officer. Judge Motha did not order their release; instead he directed Home Affairs to conduct interviews at Lindela or to transport the detainees to the nearest refugee reception office for processing.
By contrast, another judge, Stuart Wilson, ordered that a detained asylum seeker must be released. The different orders have created uncertainty for magistrates, High Court judges and the Home Affairs officials responsible for detention and deportation decisions.
Judge President Ledwaba convened the full bench to determine how judges across Gauteng should approach cases involving undocumented asylum seekers who are detained and facing deportation. The moratorium prohibits further hearings of affected applications in the province until the full court provides clarity.
What the Constitutional Court said and the immediate problem
The Constitutional Court’s July decision removed the automatic pathway to deportation that flowed from certain provisions in the Refugees Act. Those provisions required asylum seekers to justify their unlawful presence; the apex court found that asylum seekers must first be given access to the asylum process so that their applications can be considered.
The judgment has produced different practical responses in the Gauteng High Court. The split centres on two questions:
- Whether detained asylum seekers should generally be released pending proper access to the asylum system;
- Whether Home Affairs can be ordered to interview detainees where they remain in detention, or whether detention itself must be set aside and the person released immediately.
Cases and orders at a glance
| Order | Judge | Action |
|---|---|---|
| Processing at Lindela or transport to reception office | Mandlenkosi Motha | Did not release 21 detained asylum seekers; ordered Home Affairs to interview them at Lindela or transport them to refugee reception |
| Release from detention | Stuart Wilson | Ordered that a detained asylum seeker must be released (order details reported) |
| Full bench & moratorium | Judge President Aubrey Ledwaba | Convened full bench; imposed moratorium on hearing affected applications in Gauteng |
Impact across Gauteng
The divergence in judicial orders has direct implications for detainees held at Lindela and for Home Affairs officers tasked with implementing migration and detention decisions. Lawyers representing asylum seekers and non‑governmental organisations that work with migrants say the uncertainty complicates legal strategy and day‑to‑day practical arrangements for clients who say they want to lodge asylum applications.
For Home Affairs, courts may be asked to choose between mandating release or permitting processing while a person remains in detention. The full bench’s decision is therefore likely to shape operational practice at Lindela and other facilities where foreign nationals are held pending immigration determinations.
What to expect next
- The full bench will hear argument on how lower courts should apply the Constitutional Court’s July judgment in detained asylum seeker cases;
- The moratorium means related applications in Gauteng will be paused until the full court provides guidance;
- Judicial clarity will determine whether the prevailing practice is to require immediate release or to allow Home Affairs to interview detainees in custody.
The Constitutional Court’s ruling marked a significant change in the legal landscape for asylum law. The role of the Gauteng full bench will be to translate that constitutional principle into consistent lower‑court practice so that the rights of applicants — and the duties of the state — are applied uniformly across the province.
Further reporting will track the full bench timetable and the practical outcomes for detained asylum seekers in Gauteng following its decision.
