Appeals Court Chides Injudicious Judge

Cape Times (South Africa), December 1, 2011 | Go to article overview

Appeals Court Chides Injudicious Judge


IT'S not every day that you read an appeal decision commenting on the way a trial court handled a matter using words like these: "It is a matter of grave concern when fundamental rules of litigation are so flagrantly flouted[bar] This is judicial conduct that is fundamentally unacceptable."

But these and similar criticisms pepper the judgment in a case brought to the appeal court by Yene Bula and 18 other Ethiopians seeking asylum in South Africa.

Before they could apply they were arrested, detained and threatened with deportation.

Lawyers for Human Rights, acting for the 19, argued the appeal on November 9 and at the end of the hearing the appeal judges ordered the state to release the 19 immediately so they could apply for asylum.

Once it had done so, said the court, the state had to issue them with temporary asylum-seeker permits.

This week the court gave its reasons for the order: the appeal was about the "principle of legality", said the judges, and aspects of the way the proceedings had been conducted in the high court had to be addressed "in the interests of the proper administration of justice".

The 19 would-be asylum-seekers say they fled Ethiopia in about May last year to escape political persecution, and "in fear of their lives, walked for a year through Kenya, Tanzania and Mozambique before arriving in South Africa".

They crossed the border without being stopped and arrived in Johannesburg on June 16.

That evening they were arrested. Held as "illegal foreigners" at a deportation centre, they awaited ejectment from South Africa.

Then Lawyers for Human Rights took up their case and wrote to the authorities saying they should be released so that they could apply for asylum.

When there was no reply, Lawyers for Human Rights took the matter to court, where it was heard by Acting Judge Nazeer Cassim.

Exactly what transpired in court, though it makes for riveting reading, is too long to detail here except for a couple of examples of the judge's behaviour.

At one point Bula was giving evidence about making his way to Johanesburg once he had crossed the border. How did he know about "the existence of Johannesburg", the judge asked. …

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