NIGERIA AT WAR

Asylum seeker wins right to contest fine

IN a precedent-setting case, the Pretoria High Court has given asylum seekers the right to challenge a fine imposed on them.

The court yesterday heard an urgent application by Janvier Mutoshiwa, an asylum seeker from the Democratic Republic of Congo, who with the help of Lawyers for Human Rights (LHR) asked the court to compel the Department of Home Affairs to allow him to contest his fine.

Up until yesterday the department did not give refugees or asylum seekers the right to approach a competent court to contest a fine.

But now they can do so if they have a valid reason.

Judge Moses Mavundla granted an order compelling the department “to issue Mutoshiwa with a permit and to comply with the procedure related to the issuing of fines, by either notifying him of a decision not to pursue the issuance of a fine or take immediate steps to open a case at the SAPS [South African Police Service] to empower the applicant [Mutoshiwa] to contest the fine in the normal course”.

The court also ordered the department to refrain from committing any act that would prevent Mutoshiwa from exercising his right to contest any fine issued.

Mutoshiwa, a father of four, said his permit lapsed on December 30 but he was unable to renew it because he was kidnapped on December 29 on his way to Johannesburg from Mpumalanga to renew his permit.

In his affidavit to the court he said that his captors released him only in February. He has since been undocumented because the Department of Home Affairs refused to renew his permit because it had expired and he had not paid a fine of R1 000 for the expired permit.

Mutoshiwa said the department did not issue him with a written notice of the fine as stipulated in the Criminal Procedure Act. According to him, department officials told him written fines are issued only to people who are willing to admit guilt and pay the fine.

Patricia Erasmus of LHR had earlier argued before the court that without a permit, Mutoshiwa was exposed to detention or deportation and his right to freedom of movement was restricted.

“It is a severe curtailment of his constitutional rights,” she said.

Erasmus also said that it had been the first time since Mutoshiwa came to South Africa in 2008 that his permit had expired.

LHR’s litigation unit head, David Cote, said the judgment set an important precedent.

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