Pretoria - A court dealing with the rights of asylum seekers must remind itself that it is not only dealing with the law and the manner in which state officials performed their duties.
The Western Cape High Court said it must also be mindful that it was dealing with the life of a human being, who sometimes had to make the difficult decision to flee his or her country of origin for various reasons.
The court confirmed, on appeal, that a Sudanese citizen was unlawfully detained at the Lindela Repatriation Centre where he was kept for more than six months awaiting repatriation after his name was cleared on fraud charges.
Robert Ongom left Sudan in March 2004 and received a temporary permit as a refugee in South Africa.
He was later arrested on fraud charges and remained in custody as the matter was remanded on several occasions.
He was subsequently sentenced to 18 months’ imprisonment, but his criminal conviction was later overturned on review.
Instead of releasing him, he was accused of offences under the Immigration Act and transported to Lindela where he was kept in custody with the aim of deporting him.
Ongom, who said he was legally in the country as he had a temporary asylum permit, subsequently turned to the court to sue Home Affairs and Correctional Services for his unlawful detention.
The high court earlier found in his favour and ordered that the departments had to pay him damages in an amount to be determined later by the court.
Home Affairs and Correctional Services took the matter on appeal before a full bench of three judges, but once again lost.
Home Affairs claimed that Ongom had used a different identity which did not correspond with the name on his asylum permit.
Therefore they gathered that he was in the country illegally and they had to investigate the matter.
But Ongom said he had cleared his true identity with the officials, but they nevertheless kept him at Lindela, under horrendous conditions, for months.
An immigration officer testified that he later learned that Ongom had a valid refugee permit and that he was therefore not an illegal foreigner and that, despite this, he was still held at Lindela.
Judge Chantal Fortuin said the moment Home Affairs realised his true identity and that he was legally in the country on an asylum permit, Ongom should have been freed from Lindela.
She said the court was aware of the initial fraud charges against him, where it was alleged that he had cashed counterfeit travellers cheques, as well as allegations that he had used different identities.
“I do not lose sight of the need of our law enforcers to deal with crime in our society. Should he be guilty of any of these offences, he should be charged accordingly,” she said.
But the judge said this case was simply whether he was unlawfully incarcerated for being an illegal foreigner.
She added, however, that one must be mindful that while the law had to take its course, one was also dealing with a human being.
The judge said Ongom’s version of his experience of Lindela was a reminder of what this matter was actually about.
Ongom said “Lindela is no place for humans”.
He explained that there was no soap or toilet paper, and although there was a black market trade he had nothing to trade with.
However, he said, his biggest concern was being deported.
“It killed me to think that I would be repatriated. I could not go back to the nothing I came from,“ he said.
Ongom said when he was eventually released, he also went back to nothing as his girlfriend had disappeared with all his belongings.
But this was better than being sent back to his country of origin.
Pretoria News