A Zimbabwean transgender woman has approached the South African High Court seeking an order to stop that country`s immigration department from deporting her after she unsuccessfully applied for asylum.
The woman claimed Zimbabwean laws are unkind to the Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) community.
The female, aged 27, who cannot be named for ethical reasons, appeared at Hillbrow Magistrate Court in Johannesburg, South Africa last Wednesday facing charges of violating Section 49 of the Immigration Act.
Prior to her court appearance, she had been detained in custody for almost two weeks.
During the trial, the magistrate postponed her case to February 17, 2020, further remanding her in custody.
This did not sit well with her lawyer, Dr Vusumuzi Sibanda, who in an interview with CITE, after the court case, said his client was born male, had a male name but later transitioned into a woman.
He said she had been arrested for a case of common assault, but authorities discovered she had no documentation.
“When she was arrested for lack of documentation, she sought the Refugees Act saying she wants to apply for asylum because in Zimbabwe the laws don’t accommodate persons under LGBTI. She said she’s often looked at as a taboo, suffered a lot of harassment and failed to enjoy the protection of the law as she is always rebuked,” Dr Sibanda said.
He noted this was the argument they used in court, to say she was in South Africa seeking asylum.
“But the court will not hear of it so she was charged under offenses of Section 49 for illegal immigration and is liable for deportation. That particular statement means she, therefore, cannot apply for asylum and that is a wrong interpretation of the law. We don’t agree with that because we have a number of cases, (Bula and others versus Minister of Home Affairs and others and Ruta versus Minister of Home Affairs), which have all dealt with the issue of being late in applying for asylum,” Dr Sibanda said.
In this instance, Dr Sibanda noted that his client had spent six months in Johannesburg.
“The issue is not how late you are in applying for asylum but the person must be allowed the option to do that in terms of Section 2 of the previous Refugees Act, which states quite clearly someone can’t be stopped from entering the country if there’s a danger of persecution and cannot be returned back in their country to avoid refoulement under principles of non-refoulment,” he noted.
The migrant activist explained by denying his client the opportunity to approach the refugee centre to apply for asylum meant the Convention on the Rights of Refugees of 1951, the OAU protocol on Aspects and Issues relating to refugees and the South African Refugees Act were violated.
“We are now looking at the matter more deeply with the possibility of approaching the High Court to seek recourse because there’s no way she can be returned (to Zimbabwe) without approaching the refuge centre. The refuge centre must be the only one and even in terms of the judgements that can determine whether her claim is a fallacy or fictitious and nobody else, not even the court can do so.
“As far as she is concerned right now, she’s held unfairly. We also believe she is detained unlawfully because the law says once one wants to apply for asylum they must be immediately released to do so but she has been denied that opportunity,” he noted.
Dr Sibanda, also the chairperson of the African Diaspora Forum (ADF), argued that denying her the opportunity to apply for asylum cannot be condoned, especially when the law is “very” clear in terms of how one applies for refuge.
“She wants to seek asylum due to her status and the draconian laws in Zimbabwe that are not human rights orientated when it comes to gays and lesbians,” he said.
