Duo from east Africa feared persecution due to their sexual orientation.
HOME Affairs Minister Dr Aaron Motsoaledi and the department’s director-general, Livhuwani Makhode, have released a Ugandan couple detained for being in South Africa illegally due to their sexual orientation.
Motsoaledi and Makhode were ordered to release Herbert Mafadi and Luzake Musana last month after they approached the South Gauteng High Court in Johannesburg to demand their release.
The couple told the high court they would face persecution in their country and they should be allowed to remain in South Africa.
Motsoaledi’s spokesperson Siyabulela Qoza confirmed the department had complied with the judgment ordering the couple’s release.
South Gauteng High Court Judge Margaret Victor ruled in favour of Mafadi and Musana in their bid to remain in South Africa.
Mafadi and Musana fled Uganda in November last year and entered South Africa through Zimbabwe unofficially, according to Judge Victor’s ruling.
They were arrested in Nongoma, KwaZulu-Natal, in April for violating the Immigration Act.
Mafadi and Musana faced the threat of deportation following a criminal trial that found against them.
The couple pleaded guilty at the Nongoma Magistrate’s Court and were willing to return to the east African country.
However, Judge Victor doubted the couple understood their legal rights.
”There is no evidence to suggest the applicants (Mafadi and Musana) understood and were aware of their legal rights sufficient to amount to a genuine waiver,” reads the judgment.
In court, Motsoaledi and Makhode claimed that the court did not have jurisdiction to entertain Mafadi and Musana’s case since there is a court order in place directing that they (Mafadi and Musana) must be deported forthwith.
”The respondent (Motsoaledi and Makhode ) also submits that the applicants (Mafadi and Musana) pretended not to be able to sign their names and used their thumbprints instead. Upon an analysis of the documentation which form part of the record it is quite clear that the document itself requires that a thumbprint be applied as well as the signature,” reads the judgment.
According to the ruling, it became clear that Mafadi’s signature was applied above his left thumbprint.
”It is also clear from the record that the immigration officer conducting the investigation did not indicate there was an interpreter present. Nor is it clear from the record that the applicants (Mafadi and Musana) understood the rights that were being put to them by the investigating officer and to which they appended their signature in the affirmative,” stated Judge Victor.
Judge Victor released the couple pending the finalisation of their claims and Motsoaledi and Makhode were directed, upon submission by the couple of their asylum application, to accept it and issue them with a temporary asylum seeker permits.