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A Western Cape High Court judge has expressed concern over the fate of refugees and asylum seekers living in and around the Central Methodist Mission in the Cape Town CBD if they were to be removed, given that there is no emergency accommodation for them.
"I can't be worse than a judge in 1968 when people were forced to move," said acting Judge Daniel Thulare during an application to interdict hundreds of refugees living in the Central Methodist Mission on Greenmarket Square.
He said that during apartheid forced removals, the people being evicted at least knew where they were going, albeit to a barren landscape under horrible conditions.
"Am I at least not entitled to know? Where must they go?" he asked of the refugees living in the church.
Thulare said that for "all intents and purposes" their "home" now is in and around the church, and if they were arrested for any by-law infraction, they would ironically be sent back to the church when released.
The group was evicted from the Waldorf Arcade last October during a sit-in aimed at getting the UNHCR, the United Nations' refugee agency, to relocate them to another country. They cited fears of xenophobia.
Following clashes with the police, around 700 people are now living in and around the church and have set up a tent city on its perimeter.
The court has heard that only 68 are undocumented.
The City of Cape Town is concerned that it is unable to enforce its by-laws because its officials are being threatened, and that alleged by-law infractions by the residents at the church are becoming problematic to the businesses in the area.
The City also wants the Department of Home Affairs to act and assist with the situation.
The City's lawyer advocate Con Joubert said the refugees had never claimed to be homeless - they had embarked on a sit-in at the Waldorf Arcade near the UNHCR's offices, and had lived somewhere before that.
However, the Department of Home Affairs' advocate Seth Nthai said the department had done everything that it was supposed to have done already regarding the refugees and asylum seekers.
He said people misunderstood the role of the department, and a careful reading of the law shows that the department is only required to "interview" people suspected of being documented. If somebody is undocumented, they may apply through the Refugee Act for the correct paperwork.
As far as home affairs was concerned, and with most people being documented, the situation at the Central Methodist Mission is not in its domain.
In the meantime, the court heard that an agreement had been reached between the City and the department, and that for seven days a shuttle will take the refugees and asylum seekers to the Salt River Hall for document verification.
There has been a proposal that they be reintegrated into their communities, but there will be no emergency housing.
JP Balous, mandated to speak on behalf of the group, said South Africa needs to remember that it is a resettlement country, and that refugees have a right to assistance. He said the court should consider the definition of "homeless" and how people become homeless.
Joubert, for the City, insisted that homelessness had never been raised as an issue in the court papers.
Nevertheless, Thulare said he was worried that there was no clarity on where the group would eventually live.
Thulare reserved judgment until February 17.
Balous and a co-leader Papi Sukami meanwhile each face separate charges of assault and robbery and would usually not be allowed in to the CBD, in terms of their bail conditions.
Their cases were postponed earlier this month.
