The Department of Home Affairs has again been accused of discriminating against LGBTIQ+ asylum seekers, this time a gay Ugandan couple.
Last month, the South Gauteng High Court in Johannesburg ordered Herbert Mafadi and Luzake Musana to be released from detention at the Lindela Repatriation Centre in Gauteng.
The men fled Uganda when their relationship was discovered and members of their community and their family threatened to kill them.
They arrived in South Africa in November 2020 but did not apply for asylum. In April, they were arrested and convicted of contravening the Immigration Act and sent to the detention centre to await deportation back to Uganda.
The couple said they always intended to apply for asylum, but hesitated out of fear that they might also face persecution in South Africa. They asked the court to order Home Affairs Minister Dr Aaron Motsoaledi and his director-general, Livhuwani Makhode to urgently release them.
The department argued that the men had signed documents waiving their right to appeal the decision to deport them and that they voluntarily agreed to be deported,
Judge Margaret Victor, however, said that it was likely that the couple did not understand their legal rights and that it is clear “that these admissions were done without legal advice, without an interpreter being present and are suggestive of a case contrary to what a persecuted refugee would agree to.”
Judge Victor summed up the case as a “sorry saga of incomplete forms” with “not an iota of plausible evidence that the applicants knew that they were waiving their legal rights to which they were entitled to as refugees.”
She found that under the Refugees Act, until the validity of an asylum application is finally concluded, “asylum seekers cannot be forcibly returned to a country where they are liable to be subjected to persecution.”
Judge Victor also pointed out that the men could not have in any case applied for asylum because refugee reception offices had been closed for some time because of the Covid pandemic.
“The applicants should not be denied an opportunity to at least have a hearing to show good cause,” wrote Judge Victor, who noted that “the applicants face human rights abuses that appear to be systemic in Uganda, should they be returned.”
She concluded that the couple’s continued detention “cannot be justified and is unlawful” and further declared that they are entitled to remain in South Africa so that, when refugee reception offices re-open, they can formally apply for asylum.
Once their applications are submitted, Home Affairs was ordered to issue the men with temporary asylum seeker permits until their case is finalised.
The minister’s spokesperson, Siyabulela Qoza confirmed to the Sunday Independent that Home Affairs had subsequently freed the couple as ordered by the court.
In May, a report released by several civil society organisations found evidence that LGBTIQ+ refugees are routinely being denied asylum in South Africa despite being eligible for protection under international and domestic law.
The report found that some Home Affairs officials are not even aware that persecuted sexual and gender minorities constitute a protected social group under the Refugees Act.