IN A strongly worded judgment, the Supreme Court of Appeal has affirmed the principles governing legal protection for asylum seekers in SA and censured a high court acting judge for flouting the "fundamental rules of litigation". While the government has often come in for heavy criticism by the courts for how it handles immigrants and asylum seekers, it is unusual for a judge to get the kind of tongue-lashing acting judge Nazeer Cassim received from appeal court judge Mahomed Navsa.
The judgment, handed down on Tuesday, concerned 19 Ethiopians who had
walked to SA to escape political persecution in their country. Their
journey took more than a year. On arrival in SA, they were arrested
before they could apply for asylum. They spent more than a month in
detention before Lawyers for Human Rights took up their case .
But Judge Navsa said the handling of the case by the high court was "disturbingly peculiar". The judgment includes pages of excerpts from the high court record. In one of the excerpts, Judge Cassim is recorded as interrupting the testimony of one of the asylum seekers, Yene Bula, to say: "No man you cannot just, I am not a child. Tell him I am not a child. I do not want to believe him if he is telling he walked at night from the border to Johannesburg by asking people, show me the direction of Johannesburg. This is not fairy tales, please."
Judge Navsa said: "Right at the beginning of (Mr Bula’s) evidence in chief, the judge started to make factual findings, indulged in pontification and was patronising".
"A judge is required to wait until all the relevant evidence has been adduced before making an assessment and reaching conclusions," he said. "Judges are impartial adjudicators. They do not enter the fray." He said statements by Judge Cassim on foreigners had the potential for "creating and heightening tensions between nationals and foreigners".
"If they are not prudent extra- judicially, they must be all the more unacceptable in court." Judge Navsa then went on to set out the approach that ought to have been followed. He said the laws governing asylum specifically required that a person who wanted to apply for asylum status should be allowed to apply, even if he had been arrested prior.
Also, if the government wanted to apply to court to extend someone’s detention in custody for not being legally in the country, it had to inform the person of that — in writing. The law on this was "peremptory".
"It involves the liberty of an individual and must be strictly construed," he said.
By Franny Rabkin - rabkinf@bdfm.co.za But Judge Navsa said the handling of the case by the high court was "disturbingly peculiar". The judgment includes pages of excerpts from the high court record. In one of the excerpts, Judge Cassim is recorded as interrupting the testimony of one of the asylum seekers, Yene Bula, to say: "No man you cannot just, I am not a child. Tell him I am not a child. I do not want to believe him if he is telling he walked at night from the border to Johannesburg by asking people, show me the direction of Johannesburg. This is not fairy tales, please."
Judge Navsa said: "Right at the beginning of (Mr Bula’s) evidence in chief, the judge started to make factual findings, indulged in pontification and was patronising".
"A judge is required to wait until all the relevant evidence has been adduced before making an assessment and reaching conclusions," he said. "Judges are impartial adjudicators. They do not enter the fray." He said statements by Judge Cassim on foreigners had the potential for "creating and heightening tensions between nationals and foreigners".
"If they are not prudent extra- judicially, they must be all the more unacceptable in court." Judge Navsa then went on to set out the approach that ought to have been followed. He said the laws governing asylum specifically required that a person who wanted to apply for asylum status should be allowed to apply, even if he had been arrested prior.
Also, if the government wanted to apply to court to extend someone’s detention in custody for not being legally in the country, it had to inform the person of that — in writing. The law on this was "peremptory".
"It involves the liberty of an individual and must be strictly construed," he said.
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