A Palestinian man’s urgent application to halt criminal proceedings against him is being heard in the Durban High Court today, following his arrest for allegedly being in South Africa without valid immigration documentation.
The applicant is seeking an order either stopping the prosecution or suspending the criminal case until his asylum application has been finalised. He has since been issued temporary asylum seeker documentation. Attorney Yolanda Akram is representing him.
The respondents include the manager of the Durban Refugee Reception Office, the Minister of Home Affairs, the Director-General of the Department of Home Affairs and the National Director of Public Prosecutions.
The application centres on the argument that the applicant’s legal status changed after he was issued asylum-related documentation while his asylum claim is being processed.
According to court papers, the man was living and working in the United Arab Emirates on a work permit when the war in Gaza escalated in October 2023. When his permit later expired, he was required to leave the UAE.
His legal team argues that returning to Gaza was not a viable option because of the ongoing conflict and humanitarian crisis.
In court papers, Akram stated: “Had there been any safe or feasible option of returning to his family in Gaza, that would have been his first choice. However, due to the ongoing war, the destruction in Gaza, and the practical impossibility of safely re-entering and living there, this was not a realistic option.”
The man later travelled to South Africa, arriving at OR Tambo International Airport on 7 June 2025, where he was issued a visitor’s visa.
Court documents state that he did not apply for asylum upon arrival. His legal team attributes this to a lack of knowledge of the asylum system and language barriers.
Akram stated: “He did not know that he should have requested an asylum transit visa, nor, had he known, would he have been able to express such a request.”
She added: “He was entirely alone in South Africa. He had no family, no support structures, and no knowledge of how to access the asylum system. He attempted to seek assistance but was unable to obtain meaningful guidance, not least because of his language difficulties.”
His visitor’s visa expired on 5 September 2025, and was arrested in Durban on 29 December 2025 after allegedly failing to produce valid immigration documentation during a police stop. He was charged and later granted bail on 9 February 2026.
According to Akram, he had no financial means and relied on assistance from fellow detainees.
She stated: “He was extremely fortunate as he had no funds and the bail money was provided by fellow detainee/s. It was only thereafter that he came into contact with Gift of the Givers, who have assisted him since with, inter alia, translators and practical support.”
Court papers show that the man later began efforts to regularise his status and apply for asylum.
Akram outlined the sequence of events, stating: “On March 3, 2026, he completed his Declaration of Intention to Apply for Asylum. On March 23, 2026, he attended the DRRO. He was initially refused assistance as he was told he had to undergo a so-called ‘good cause’ interview in terms of Regulation 8(3) of the Regulations to the Refugees Act, 2020.”
She further stated: “On April 14, 2026, he attended the offices of the home affairs department in Pretoria, but was refused assistance.”
On 18 May 2026, Home Affairs officials found that he had demonstrated sufficient “good cause” for the delayed application and issued him with a Form 20 permit allowing him to remain in South Africa while his asylum claim proceeds.
Akram stated: “On May 18, 2026, he duly attended the interview and was found to have shown the necessary good cause to justify his presence in South Africa.”
Akram says representations were made to prosecutors requesting that the criminal case be withdrawn, but the National Prosecuting Authority declined.
She stated: “No reasons whatsoever were provided for the refusal.”
She added: “The prosecutor, however, stated to me that even if he were granted asylum, ‘nothing would change’ and that the State could not withdraw the matter merely because he had now obtained legal status in the country.”
Akram argues that the issuing of asylum documentation materially altered her client’s legal position.
She stated: “I noted that the primary issue was that he was not documented at the time of the arrest and remained undocumented at the time of being charged. With the issuing of the Section 22 Refugee Visa, that has materially changed. He is protected by Section 21(4)(a) of the Refugees Act and it is unlawful to continue criminal proceedings against him.”
The matter is currently before the Durban High Court.
The separate criminal case remains scheduled to proceed on 25 June unless the court grants relief halting or suspending the prosecution pending the outcome of his asylum application.