Zim transgender asylum-seeker wins SA High Court appeal

Source: Cite, 18/02/2020

The applicant, Emily Musimwa, was remanded in custody by the
Hillbrow Magistrate Court in January pending trial (February 17,
2020) for violating Section 49 of the Immigration Act.
She then approached the High Court to seek recourse, having
already spent two weeks in prison.
Her lawyer, Dr Vusumuzi Sibanda argued Musimwa sought asylum
because Zimbabwean laws are unkind to the Lesbian, Gay, Bisexual,
Transgender and Intersex (LGBTI) community and she could not be
deported to Zimbabwe without approaching the refugee centre.
On February 12, 2020, at the High Court of South Africa: Gauteng
Local Division in Johannesburg, Judge Kathree-Setiloane, ordered
the Ministry of Justice and Correctional Services, the Director of
Public Prosecutions: Gauteng Local Division and National
Prosecution Authority, the Chief Director: Asylum Seeker
Management DHA and the Minister of Home Affairs, cited at the
first, second, third and fourth respondents to release Musimwa
forthwith.
“It is ordered that in terms of Regulation 2(2) of the Refugees
Regulations, the applicant is entitled to remain lawfully in the
Republic of South Africa for a period of 14 days in order to allow
her to approach the Refugee Reception Office to submit her
application for asylum,” read the high court order.
The Director of Public Prosecutions: Gauteng Local Division and
National Prosecution Authority and the Minister of Home Affairs
were “hereby interdicted from detaining criminally charging and or
deporting the applicant in terms of the Immigration Act 13 of 2002
until her status under the Refugees Act 130 of 1998 has been
lawfully and finally determined by the Refugees Determination
Office.”
Judge Setiloane also ordered the Chief Director: Asylum Seeker
Management DHA and Minister of Home Affairs to immediately issue
Musimwa with a permit contemplated in Section 22 of the Refugees
Act 130 of 1998 read together with Regulation 2(2) of the Refugees
Regulations.
“The first and the second respondent are ordered to pay the costs
of this application including the wasted cost on February 11,
2019, jointly and severally, the one paying the other to be
absolved,” said the high court order.
Musimwa’s lawyer said she was “never supposed to stay in custody
and the court was supposed to release her the day we appeared
(that was January 22, 2020) because the law is clear on that for
claimants to the asylum system. The Magistrate (at (Hillbrow
Magistrate Court) failed to apply the law and neglected the rights
of Ms Emily Musimwa,” said Dr Sibanda.
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