- The court overturned the convictions and sentences of two foreign nationals accused of immigration offences.
- Judge Muller found that one accused entered South Africa legally and was protected by asylum laws.
- The ruling means both accused remain in South Africa unless lawful immigration processes decide otherwise.
Two foreign nationals will remain in South Africa after a Limpopo review court overturned their immigration-related convictions and found that the cases against them should never have resulted in guilty findings to begin with.
In the High Court in Polokwane, Judge GC Muller, with Judge K Pillay concurring, set aside the convictions and sentences imposed on Ethiopian national Lemo Erose Lamilamo and Zimbabwean national Sandra Mudzimure, after finding serious legal and procedural failures in the way the prosecutions were handled.
The judgment found that the magistrate failed to properly apply the Criminal Procedure Act, ignored protections available to asylum seekers, and did not safeguard the rights of accused persons without legal representation.
As a result of this ruling, neither accused faces a criminal conviction in these cases. Any future questions about their immigration status must be handled through proper immigration or administrative processes, not flawed criminal proceedings.
How the case against Lamilamo unfolded
Lamilamo was charged under Section 9(3)(a) of the Immigration Act after authorities claimed that he had entered or remained in South Africa without valid documentation.
During the guilty plea proceedings, Lamilamo explained that he entered South Africa legally through Musina in 2016 using a valid passport. He also told the court that he later applied for asylum and had renewed his temporary asylum documentation multiple times, but struggled to renew it again after it expired in January 2026.
This explanation created immediate difficulties for the prosecution because Section 9(3)(a) only criminalises entering or leaving South Africa without a valid passport. The charge did not automatically apply just because temporary immigration documents later expired.
Judge Muller found that once the accused disputed unlawful entry into South Africa, the magistrate should have stopped the guilty plea proceedings and instead entered a plea of not guilty. Instead, the magistrate convicted him even though there was evidence supporting his version of events.
The court also pointed to an affidavit from an immigration officer confirming that Lamilamo had remained in South Africa legally. Judge Muller found that the accused “did not admit all the elements of the offence charged” and that the magistrate was wrong to treat the plea as proof of guilt.
Asylum protections at the heart of the ruling
A major part of the judgment focused on the protections that South African law gives to asylum seekers. The court pointed to Section 21(4) of the Refugees Act, which protects asylum seekers from prosecution related to unlawful entry or presence while their asylum applications or appeals are still unresolved. Judge Muller emphasised that asylum seekers remain protected until all review and appeal procedures are finished.
The court found that the magistrate had ignored these protections and wrongly saw the expiry of temporary documentation as proof that Lamilamo was illegally in South Africa. The judgment also criticised both the prosecutor and the magistrate for misunderstanding what offence the Immigration Act actually creates.
Young mother's rights overlooked
The second case involved Mudzimure, a 20-year-old Zimbabwean national with a two-year-old child. The court found that the magistrate did not properly explain her right to legal representation before accepting her guilty plea. The documents meant to show whether her rights had been explained were left incomplete, and the official court record did not show that her rights were ever explained to her.
Judge Muller found that more care was needed because Mudzimure did not have legal representation and was unfamiliar with court procedures. The court also criticised the magistrate for not investigating whether she may have had a lawful status in South Africa or rights based on her personal circumstances.
The ruling also found that the suspended sentences in both cases were so poorly worded that they were legally defective. In the end, Judge Muller set aside both convictions and sentences in full.
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