A Congolese woman who experienced sexual violence in her home country but was denied asylum in South Africa is taking legal action. Her story of abuse by soldiers in her country, followed by further sexual exploitation while fleeing to South Africa, resulted in her suffering not being recognized, which may help create a more gender-sensitive asylum system.
Appeal to the High Court
The Initiative for Strategic Litigation in Africa (ISLA) and Legal Human Rights Advocates (LHR) filed a lawsuit in the Gauteng High Court in Pretoria. The case concerns a woman from South Kivu who endured prolonged sexual violence by armed forces in the DRC, and subsequently suffered at the hands of border officials in various countries during her flight.
Asylum System and Denial
The woman arrived in South Africa seeking protection, but the asylum system deemed her testimony implausible. The region she fled has suffered from armed conflict and systematic sexual violence against civilians for over thirty years. LHR representatives explained that the woman did not flee by choice, but because staying was incompatible with life.
Process and Allegations
The victim of further sexual violence during her escape arrived in South Africa around 2006–2007. Since she did not speak English, she managed to reach the Department of Home Affairs in Durban, where she was advised to return until she found someone to assist with communication. She returned, told her story, repeated it later in an interview, and a third time years later before the Refugee Appeal Board. However, she was told she was implausible due to inconsistencies in her account.
LHR stated that penalizing her for inconsistency was a re-infliction of harm. The woman was detained at the Lindela Repatriation Centre after being arrested for illegal stay, and she lived for years with expired or unresolved documentation.
Court Demands
ISLA and LHR are asking the court to review and overturn the Refugee Appeal Board's decision to deny asylum. They argue that this decision failed to adequately assess the gender-based violence she suffered as persecution under the Refugee Act and applicable international law. These organizations also call on the court to investigate systemic failures by refugee officials in dealing with women seeking protection in South Africa after fleeing war and sexual violence.
Consequences of Denial and Structural Issues
According to ISLA and LHR, returning her to her country of origin is not merely an administrative decision but potentially a death sentence. They emphasized that her case is not unique and reveals structural flaws in the system: the lack of gender-sensitive consideration in asylum cases, the 'credibility trap' that punishes trauma survivors, and the inability to recognize gender-based violence as a form of persecution.
It was noted that the asylum system was designed around the paradigmatic refugee, who is implicitly a man fleeing persecution as an individual political actor, and this approach proves insufficient for considering claims of gender-based persecution.
International Obligations
Gender-based persecution, including sexual violence by armed actors in conflict settings, was recognized as a form of persecution under the Refugee Act. The Maputo Protocol, ratified by South Africa, obligated the state to 'protect women seeking asylum, refugees, and internally displaced persons from all forms of violence, including rape.'
LHR stated that South Africa did not apply these frameworks to her case, using a standard of credibility developed without considering her circumstances, which led to her exclusion.
Both organizations stated that her implausibility was not related to trauma affecting her narrative, but rather that she needed protection more, given what she had experienced and what might happen to her upon return.