SHYAKA KANUMA, Johannesburg | Thursday
A HIGH court judge has issued a ruling against the Department of Home Affairs to prevent the deportation of a Congolese, Jacques Katambayi, back to his country.
The case of Katambayi, who was represented by Lawyers for Human Rights (LHR), is an unusual one: he actually was being deported by Australia. Katambayi was in transit at Johannesburg International Airport when he appealed for asylum in South Africa.
The LHR says it approached the court on Monday in an attempt to prevent the Australian authorities from continuing the deportation of an asylum seeker back to a country where he fears persecution and torture.
Katambayi fled his war-ravaged country, the Democratic Republic of Congo, after being forced to join the army.
An LHR statement said: “Mindful of the cruel penalties for desertion, Katambayi fled to Australia, which is signatory to the United Nations Refugee Convention, where he applied for asylum.
“But the Australian government, which was recently criticised by international human rights groups for its harsh policies towards refugees, rejected Katambayi’s asylum claim and ordered his deportation via South Africa.”
Judge Frans Malan granted an interdict that prevents the Australian and South African authorities from moving Katambayi out of South Africa. The ruling further directs the Department of Home Affairs to allow Katambayi to apply for asylum in South Africa from its office in Braamfontein.
“The judgement is crucial as it recognises the right of asylum seekers to apply for asylum – even when they are in the transit area of an international airport,” said the LHR’s Jacob van Garderen.
Katambayi arrived last Saturday afternoon at Johannesburg airport and was scheduled on a flight to the Congo the following day. But Amnesty International, which had taken an interest in the case, alerted the LHR in South Africa, which acted before the refugee could be put on the flight to Kinshasa. He was detained in the airport’s transit area.
Katambayi arrived in Australia by boat last October and was promptly detained as an illegal alien.
Two appeals and much pleading to the Australian Refugee Review Tribunal didn’t get him asylum status, and the decision was made to deport him.
Section 2 of the South African Refugees Act specifically states that no person may be refused entry into the republic, expelled, extradited or returned to any other country where the person “may be subjected to persecution, or where his or her life, safety or freedom would be threatened”.
But according to the Department of Home Affairs, this cannot apply to refugees in transit. That was, until the high court’s ruling.
In a last minute twist to the Katambayi saga, home affairs this week interviewed Katambayi without his attorney’s knowledge and informed him that he would be deported after all.
Katambayi’s attorney Chris Waters informed the Mail & Guardian that when lawyers confronted the department about its decision, the last-minute decision was retracted and the department promised to comply with the court ruling.