After enduring what the high court called “repugnant and objectionable” behaviour by a senior immigration official that allegedly led to a suicide attempt, an Ethiopian asylum seeker found some relief from the court in his bid to be with his family in SA.
The high court also criticised a magistrate for accepting the man’s admission of guilt, despite him not speaking English and not understanding any of the documents he says he was forced to sign under threat of torture.
The matter will now go to a new magistrate to decide the matter.
Tsegaye Esyas, an Ethiopian, fled his home country to SA in 2023 due to political unrest and in fear for his life. On arrival in the Western Cape, he tried to start the asylum process at home affairs immigration offices. But he says he was constantly turned away due to systems being offline, load-shedding and other issues.
Esyas was arrested for being an illegal immigrant and detained in 2024.
He appeared in court, but the case was postponed to get an interpreter. He was kept at a police station in Paarl before returning to court. However, no interpreter appeared.
The case continued. Outside the court, Esyas’ family appeared and were approached by an immigration official, Annelise van Dyk. Esyas’ family said she indicated it would cost R1,000 for Esyas to be released on bail.
The family paid the money only to discover Van Dyk had allegedly arranged for Esyas to be taken into custody. A police officer told the family they had not paid for bail, but for an admission of guilt fine.
An admission of guilt fine can be paid to forgo a criminal trial. This where a person, accused of a minor offence, can pay a fine and admit guilt, ending the criminal matter quickly because of the person’s admission. While most admission of guilt fines result in the person having a criminal record, a few — such as for traffic offences — do not.
However, as the courts have warned, admission of guilt fines must not be confused with bail. Bail is a deposit that guarantees a person’s return to court for a full criminal trial. Bail is returned, even if the person is found guilty. Bail is not returned, however, if the person fails to arrive at the trial.
Officials told the family that the admission of guilt meant Esyas admitted to being in SA illegally. Immigration officials were therefore allowed to detain him until deportation.
A few days later, Van Dyk took Esyas to the immigration offices to sign documents. Esyas alleged Van Dyk was “hostile and racist”, supposedly shouting at him. However, due to Esyas not speaking English, he did not understand her.
According to Western Cape High Court judge, James Lekhuleni, Esyas says things got worse. Esyas said was “tortured ... to the point where he said that his life was now in detention until deportation”, Lekhuleni said.
“There was nobody to hear his plight, and he could not undergo any more torture at the hands of Ms Van Dyk. At this stage, he believed that it was best to take his own life, and he attempted to hang himself.”
Police caught him beforehand and placed him on suicide watch.
Finally obtaining attorneys, Esyas brought an application to have the admission of guilt set aside.
This resulted in Lekhuleni’s ruling this week where he pointed out that Esyas “challenged” Van Dyk to respond to his allegation, but she did not.
Lekhuleni said an accused’s fair trial rights are dependent on understanding proceedings. There is a duty on a court “to call an interpreter at state expense” if needed. There was no interpreter or indication that Esyas understood what was happening. Lekhuleni found this to be an “irregularity … so gross that it vitiated the entire proceedings”.
Finally, regarding Van Dyk, Lekhuleni said her alleged conduct was “deplorable and must be condemned”.
Lekhuleni ordered the R1,000 to be returned, the magistrate’s findings set aside and everything had to start from scratch with a new magistrate. He also ordered that an interpreter be made available. He finally ordered Van Dyk “be removed entirely” from the matter.
Esyas is now among 300,000 refugees in SA. In 2021, the UN partnered with the department of home affairs, launching a $9.6m project to clear the backlog of the more than 133,000 asylum appeals at the time. Home affairs has not yet indicated the status of the project.
Home affairs did not respond to questions at time of publishing.
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