Asylum seeker applications: Government considers court bid to buy Home Affairs time

The Chairperson of the Inter-Ministerial Committee (IMC) on Migration, Minister Mmamoloko Kubayi, said the government may approach the courts for a supervisory order following the Constitutional Court’s (ConCourt) judgment on asylum seeker applications.

On Sunday, the IMC on Migration updated the country on the government’s plan to implement the ConCourt judgment.

A supervisory order would allow the court to retain oversight of the implementation process and guide how the order is operationalised. The order may also include a suspension period to allow the department of Home Affairs the necessary time to develop and strengthen administrative, human resource, infrastructure and processing capacity required to implement the judgment sustainably.

On Friday, the Director-General of the department of Home Affairs withdrew the directive his office issued on 28 September regarding the intake of asylum seeker applications.

The department said the attempt to practically implement the judgment immediately “led to serious consequences that could not have been foreseen in the Court order”.

“This includes, amongst others, the fact that RRO operations were overwhelmed within a matter of days since the directive was issued, Home Affairs officials were placed at risk, and that serious threats to public safety and order had emerged,” said the department.

Asylum seeker applications: Home Affairs needs time

On Sunday, Kubayi said a supervisory order could provide the guidance needed to implement the court order.

“We believe that this approach represents a responsible and lawful mechanism to ensure constitutional obligations are fulfilled in a manner that is orderly, practical and in the public interest,” said Kubayi.

“It will allow government to avoid administrative disruption while ensuring that the rights recognised by the court are progressively and meaningfully realised.

“Following all those options presented to the legal teams, this option that we are presenting is what the legal team says is sound in legal terms and has prospects of success in court.”

In its application, the government will ask the court to provide guidance on the nature and scope of the supervisory measure that may be required, and the appropriate duration of suspension of the judgment.

“The objective is not to delay compliance but to ensure effective and sustainable means. Otherwise, we will be in contempt of court as government.

“We are in a situation where the IMC must find a balance between compliance with the court order and listening to the concerns of many South Africans. And we believe we will be able to find that balance, though we need time and patience, which we will request formally from the court and which we are requesting today from our citizens.”