PRESS STATEMENT | Victory for family unit and forcibly displaced migrant children

Date: 22/03/2022

Lawyers for Human Rights (LHR) welcomes the order handed down on 18 March 2022 by the Johannesburg Children’s Court recognizing Niangi Lebo Samba as the foster parent of her dependents (the children), who are forcibly displaced separated migrant children who have been in her care since 2017.  LHR represented Ms Samba and the children in the Children’s Court in an application for foster care.

The children arrived in South Africa in and around 2007 together with their mother, Odile Mbimba, who was compelled to flee the Democratic Republic of Congo (DRC) due to increased and ongoing insecurity and war.  The children’s father had attempted to flee the DRC a year earlier due to threats of persecution and war, but went missing shortly after he left home and is presumed to be deceased.  Following Ms Mbimba and the children’s arrival in South Africa, they approached the Pretoria Refugee Reception Office (now known as the Desmond Tutu Refugee Reception Office (DTRRO)) and applied for asylum.  Ms Mbimba and only one of her children were issued with asylum seeker visas, with officials informing them that Ms Mbimba’s youngest child was not eligible for a visa due to his age.  Upon their arrival in South Africa, Ms Mbimba and the children lived with Ms Samba and her family.  Although Ms Samba and Ms Mbimba were distant relatives (their grandmothers were sisters), they considered each other as sisters and the children saw Ms Samba as their aunt.

On 5 May 2017, Ms Mbimba passed away in South Africa leaving the children orphaned resulting in Ms Samba taking them in as her own.  Following Ms Mbimba’s death, the children struggled to access renewed documentation from the Pretoria Refugee Reception Office as they were dependents of their mother who had passed away resulting in the lapsing of her claim for asylum.  Since Ms Mbimba’s passing, Ms Samba has been the sole caregiver of the children, supporting them financially and emotionally and sees them as her own children.  She has provided for their needs, including education, healthcare, and basic necessities as well as emotional support, comfort, and love.

As the children’s sole caregiver, Ms Samba, who is a recognised refugee, sought to have the children joined to her file at the DTRRO as her dependents in line with the Mubake and Others v Minister of Home Affairs and Others case, which established that children whose caregivers are asylum seekers or refugees should be documented as dependents of the caregivers in terms of section 3(c) of the Refugees Act.  This case expanded the definition of a dependant in terms of section 1 of the Refugees Act prior to its amendment and took into consideration the concept of family in an African context.  The Court further referred to the definition of family members in section 1 of the Children’s Act, which is not restricted to the nuclear family, but also includes “any other person with whom the child has developed a significant relationship, based on psychological or emotional  attachment, which resembles a family relationship.”  Notwithstanding this, the DTRRO refused to assist her and told her to approach the Children’s Court for an order recognising the children as her dependents.

On 18 March 2022, nearly three years after the institution of proceedings at the Johannesburg Children’s Court, the children have been recognised as Ms Samba’s dependents and she has been formerly appointed as their foster parent.  Consequently, the children may now be joined to her file at the DTRRO as her dependents and as recognised refugees and access documentation.

Jessica Lawrence, an attorney at Lawyers for Human Rights, noted that “a large number of unaccompanied and separated migrant children who have been forcibly displaced remain undocumented because they struggle to access the asylum system in the absence of a biological parent.”  She further held that “case law such as the Mubake matter, specifically provides a remedy for unaccompanied and separated migrant children but officials of the Refugee Reception Offices often refuse to acknowledge and implement this judgment leaving them undocumented for years at a time.  This undermines South Africa’s obligations towards protecting children, regardless of their nationality, and the best interests of the child principle.”

As we mark Human Rights day, we acknowledge the huge impact this ruling will have on the lives of the children at the centre of this case, who have struggled to access basic services and have always felt othered due to their lack of documentation.  The children felt that their dignity and humanity was trampled upon by the Department of Home Affairs’ Refugee Reception Office through its failure to implement the Mubake judgment, issue the children with documentation, and failure to uphold the best interests of the child principle.

Support for this case was generously provided by terre des hommes (tdh).

For more information contact:

Jessica Lawrence

Phone: 011 339 1960


Thank you for joining
Thank you for joining the LHR Newsletter, we will be in touch soon