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[2018] ZACC 38
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Gavric v Refugee Status Determination Officer, Cape Town and Others (CCT217/16) [2018] ZACC 38; 2019 (1) SA 21 (CC); 2019 (1) BCLR 1 (CC) (28 September 2018)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
217/16
In the matter
between:
DOBROSAV
GAVRIĆ
Applicant
and
REFUGEE
STATUS DETERMINATION
OFFICER, CAPE
TOWN
First

Respondent
MINISTER OF HOME
AFFAIRS
Second

Respondent
DIRECTOR-GENERAL
OF DEPARTMENT
OF HOME AFFAIRS
Third

Respondent
MINISTER
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Fourth

Respondent
DIRECTOR-GENERAL
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
Fifth

Respondent
DIRECTOR
OF PUBLIC PROSECUTIONS,
WESTERN
CAPE
Sixth

Respondent
and
PEOPLE AGAINST
SUPPRESSION, SUFFERING,
OPPRESSION AND
POVERTY
Amicus

Curiae
Neutral citation:
Gavrić v Refugee Status Determination Officer, Cape Town and
Others
[2018] ZACC 38
Coram:
Mogoeng CJ, Dlodlo AJ, Froneman J, Goliath AJ, Jafta J, Khampepe J,
Madlanga J, Petse AJ and Theron J
Judgments:
Theron J (majority): [1] to [121]
Jafta J (minority):
[122] to [163]
Heard on:
6
February 2018
Decided on:
28 September 2018
Summary:
Section
4 of the Refugees Act— Exclusion — Internal remedies —
Unfounded application
Section 4(1)(b) of
the Refugees Act — Non-political crime — Criteria
ORDER
On appeal from the
High Court of South Africa, Western Cape Division, Cape Town:
1. Leave to appeal is granted.
2. The appeal is upheld and the order of the High Court, Western Cape
Division, Cape Town, is set aside.
3. The decision of the first respondent, Ms Nompakamiso C. Xesha is
set aside.
4. It is declared that the applicant, Mr Dobrosav Gavrić, is
excluded from refugee status in terms of
section 4(1)(b)
of the
Refugees Act 130 of 1998
.
5. There is no order as to costs.
JUDGMENT
THERON J (Mogoeng
CJ, Froneman J, Goliath AJ, Khampepe J, Madlanga J and Petse AJ
concurring):
Introduction
[1]
This application raises important and novel
questions about the ambit of the protection that South African law
offers to foreigners
under the Refugees Act
[1]
(the Act) and the Constitution.
[2]
This matter concerns a review to set aside the
first respondent’s refusal to grant the applicant refugee
status as well as
a constitutional challenge to section 4(1)(b)
[2]
of the Act which excludes persons convicted of
certain non-political crimes from being eligible for refugee status.
Background
[3]
The applicant is Mr Dobrosav Gavrić, a
Serbian national who is seeking refugee status in South Africa.  The
first respondent
is the Refugee Status Determination Officer, Cape
Town (RSDO), who refused the applicant’s application for
refugee status.
While all six respondents filed a notice of
intention to oppose and submissions, only the RSDO and the second and
third respondents,
the Minister of Home Affairs and the
Director-General of the Department of Home Affairs, collectively
filed an answering affidavit.
The amicus curiae (friend of the
court) is People Against Suppression, Suffering, Oppression and
Poverty (PASSOP), a community-based
non-profit organisation which
aims to protect and promote the rights of refugees, asylum seekers
and immigrants in South Africa.
[4]
The applicant lived in Serbia until 2007, where he
worked for the Serbian Police Force.  During the 1990’s,
the former
Republic of Yugoslavia disintegrated due to ethnic
conflict which led to warfare and violence in Serbia – at the
time, a
territory controlled by the former Republic of Yugoslavia.
The driving force behind the violent conflicts in Serbia was
the
then President Mr Slobodan Milošević.
[5]
During the wars Mr Milošević used a
paramilitary unit, Arkan’s Tigers, to carry out ethnic
cleansing operations.
The unit was led by Mr Zeljo Ražnatović,
commonly known as Arkan.  After the wars ended, organised crime
and the
Milošević government were closely aligned.  Arkan
became both a powerful politician and a feared underworld figure.
[6]
On 15 January 2000, Arkan and his two bodyguards
were assassinated in a hotel in Belgrade, Serbia.  The applicant
was present
at the hotel when the assassination occurred and was
seriously injured in the cross-fire.
[7]
The applicant was charged with the murder of Arkan
and his two bodyguards.  He was detained for three years in a
Serbian prison
while awaiting trial.  During this time, the wing
of the prison where the applicant was kept was cleared of all other
prisoners
to protect him from other inmates.  After three years,
the applicant was released from prison and awaited his trial at home.
[8]
The applicant was convicted for the murders of
Arkan and his two bodyguards on 9 October 2008
in
absentia
(in his absence).  He was
initially sentenced to a term of 30 years’ imprisonment but
this was later altered on appeal
to 35 years’ imprisonment by
the Serbian Supreme Court.  In 2012, the applicant lodged an
appeal against his sentence
in the European Court of Human Rights.
He sought to challenge his sentence under Article 7 of the
ECHR
Convention.
[3]
This article prohibits retrospectivity in
criminal matters.  At the request of this Court, the Registrar
of the European Court
of Human Rights indicated that the applicant’s
appeal was declared inadmissible on 6 February 2014.
[9]
The applicant entered South Africa in 2007 under a
false name and passport.  His real identity came to light when
he became
a victim and witness in a shooting incident in 2011.  He
was subsequently arrested and charged with possession of illegal
substances (drugs) and fraud relating to having obtained official
documents (driver’s licence, passport and firearm licence)

under his false name.  The applicant was detained on 27 December
2011.  The Serbian Ministry of Justice dispatched a
request for
his extradition on 29 December 2011.  The applicant is currently
detained at Helderstroom Correctional Facility
in the Western Cape
pending the finalisation of the criminal charges, extradition
proceedings and this case.
[10]
On 30 January 2012, the applicant applied to the
RSDO for refugee protection (asylum) under section 3 of the Act
[4]
on the grounds that he had a well-founded fear of
being killed by Arkan’s supporters.  This application was
rejected
on 14 February 2012.  On 18 April 2012, the
Standing Committee on Refugee Affairs (Standing Committee) set aside

the decision of the RSDO and the application was remitted to the RSDO
to re-interview the applicant.
[11]
On 19 November 2012, the RSDO concluded that the
applicant’s asylum application was excluded in terms of section
4(1)(b) of
the Act on the grounds that he had committed serious
non-political crimes (the decision).  In 2013, the applicant
instituted
proceedings in the High Court, which sought to review and
set aside the decision, declare the applicant to be a refugee and
declare
section 4(1)(b) of the Act constitutionally invalid.  In
addition, the applicant sought a declaratory order prohibiting the

respondents from extraditing, deporting or otherwise returning him to
Serbia.
[12]
The High Court dismissed the application with
costs
[5]
and an application for leave to appeal to the Full
Bench of the High Court was unsuccessful.  The Supreme Court of
Appeal refused
leave to appeal.  Leave to appeal is now sought
from this Court.
[13]
The issues in this matter are whether
—
(a)
leave to appeal and
condonation should be granted;
(b)
section 4(1)(b) of
the Act should be declared inconsistent with the Constitution and
invalid;
(c)
a decision that the
applicant qualifies for asylum under section 3 of the Act must be
made with or before a decision to exclude
the applicant under
section 4(1);
(d)
the decision of the
RSDO is subject to an internal review;
(e)
the decision of the
RSDO ought to be reviewed and set aside; and
(f)
the applicant should
be declared a refugee.
Jurisdiction
and leave to appeal
[14]
This matter engages the jurisdiction of this Court
as it involves a constitutional challenge to section 4(1)(b) of the
Act.  Beyond
this, it raises
arguable points of law of
general public importance
, such as
the
definition of a political crime, the proper interpretation and
application of the “exclusion clause”, whether an

internal appeal process is available to an excluded person under the
Act, as well as what
the rights are of an excluded
person who may be persecuted upon returning to her country of origin.
These are issues of great
importance to asylum seekers and
refugees, and impact their right to fair administrative action.
Though not definitive, there
are also reasonable prospects of
success.  It is in the interests of justice that leave to appeal
be granted.
Condonation
[15]
The applicant filed his application for leave to
appeal one court day late due to a mistake by his attorney concerning
the date
of the Supreme Court of Appeal order.  The respondents
filed their submissions on 30 October 2017 instead of 27 October
2017.
In both instances the delay was not excessive and
it is in the interests of justice to grant condonation.  Condonation
is granted.
Merits
The scheme of the
Refugees Act
[16
] The legal framework under which the applicant’s
application for asylum falls to be considered includes the provisions
of
the
Refugees Act, the
Extradition Act,
[6]
the Constitution and relevant international instruments.
[7]
The preamble to the Act provides that effect must be given to
the “relevant international legal instruments, principles
and
standards relating to refugees; to provide for the reception into
South Africa of asylum seekers; to regulate applications
for and
recognition of refugee status; and to provide for matters connected
therewith”.  Consonant with the preamble,
the Act
establishes a framework for the consideration and determination of
applications for asylum, the conferral of refugee status
and for
internal reviews and appeals.
[17] Section 2 of
the Act contains a general prohibition against the return of a person
to any country where her life, physical
safety or freedom will be
threatened.
[8]
Section 3 (the inclusion clause) provides – subject to an
application for asylum being made under section 21 of the
Act—
“A person qualifies for refugee status for the purposes of this
Act if that person—
(a)
owing to a well-founded fear of being persecuted by reason of his or
her race, tribe, religion, nationality, political opinion
or
membership of a particular social group, is outside the country of
his or her nationality and is unable or unwilling to avail
himself or
herself of the protection of that country, or, not having a
nationality and being outside the country of his or her
former
habitual residence is unable or, owing to such fear, unwilling to
return to it; or
(b)
owing to external aggression, occupation, foreign domination or
events seriously disturbing or disrupting public order in either
a
part or the whole of his or her country of origin or nationality, is
compelled to leave his or her place of habitual residence
in order to
seek refuge elsewhere; or
(c)
is a dependant of a person contemplated in paragraphs (a) or (b).”
[18] Section 4
contains what is known as the exclusion clause, namely the grounds
disqualifying a person from being awarded refugee
status. It reads:
“(1) A person does not qualify for refugee status for the
purposes of this Act if there is reason to believe that he or she—
(a)
has committed a crime against peace, a war crime or a crime against
humanity, as defined in any international legal instrument
dealing
with any such crimes; or
(b)
has committed a crime which is not of a political nature and which,
if committed in the Republic, would be punishable by imprisonment;
or
(c)
has been guilty of acts contrary to the objects and principles of the
United Nations Organisation or the [African Union]; or
(d)
enjoys the protection of any other country in which he or she has
taken residence.
(2) For the purposes of subsection (1)(c), no exercise of a human
right recognised under international law may be regarded as being

contrary to the objects and principles of the United Nations
Organisation or the [African Union].”
[19] In terms of
section 24(3), the RSDO—
“must at the conclusion of the hearing (for asylum)—
(a)
grant asylum; or
(b)
reject the application as manifestly unfounded, abusive or
fraudulent; or
(c)
reject the application as unfounded; or
(d)
refer any question of law to the Standing Committee.”
Constitutional
challenge to section 4(1)(b)
[20] The applicant
initially contended that
section 4(1)(b)
of the
Refugees Act is
inconsistent with the Constitution and violates the rights to, inter
alia, life, dignity, equality and security of the person.

Although
the parties agreed, in the end, that the
challenge to the constitutionality of section 4(1)(b) must fail, it
is incumbent on this
Court to nevertheless deal with this argument in
order to provide clarity as it impacts numerous asylum seekers and
refugees.  In
addition, the relationship between section
4(1)(b)
and section 2 may impact the applicant should extradition proceedings
commence following this decision.
[21] According to
the applicant, the alleged inconsistency of section 4(1)(b) with the
Constitution stems from two defects.
Firstly, section 4(1)(b)
results in unconstitutional consequences.  He argues that the
purpose of section 4(1)(b) is clear:
it denies a person refugee
status based on the crimes that she is believed to have committed.
The potential consequence of
this is that a person who has “a
well-founded fear of being persecuted by reason of his or her race,
tribe, religion, nationality,
political opinion or membership of a
particular social group”, or who “owing to external
aggression, occupation, foreign
domination or events seriously
disturbing or disrupting public order in either a part or the whole
of his or her country of origin
or nationality, is compelled to leave
his or her place of habitual residence in order to seek refuge
elsewhere” might be
compelled to leave South Africa and return
to his or her home country to face treatment that may be horrific and
inhumane.
[22] Secondly, the
applicant submits that section 4(1)(b) is constitutionally invalid in
that it gives the RSDO an overbroad, vague
and unguided discretion to
make decisions that affect constitutional rights – in terms of
this discretion RSDOs determine
which persons will be allowed to seek
refugee status and which persons will be excluded.  This second
leg was based on the
notion that the exercise of this discretion,
unlike other decisions made by RSDOs, is not capable of being
appealed or reviewed
to a higher body in terms of the Act.  The
findings of this Court discussed below in respect of the internal
review or appeal
process means that this ground has fallen away and
so I deal only with the first ground.
[23]
The key international and regional conventions
governing refugee law are those referred to in the preamble to the
Act.
[9]
To
ensure that persons guilty of heinous
acts and serious common crimes do not abuse the institution of asylum
in order to avoid being
held legally accountable for their acts,
international instruments specifically embrace exclusion clauses such
as section 4(1)
of the Act.
[10]
In very similar terms, these instruments
define, on the one hand, persons who qualify as refugees,
[11]
the rights and the responsibilities of states when
considering the grant of asylum, and, on the other hand, persons who
do not qualify
as refugees.
[12]
[24]
Sections 3 and 4(1)
of the Act are the principal provisions reflecting the inclusionary
and exclusionary requirements mandated by
international law.
Section 3 defines persons eligible for refugee status.  South
Africa's exclusion clause is contained
in section 4(1) of the Act and
is drawn almost exclusively from article 1F(b)
[13]
of the 1951 Convention.  Exclusion
assessments are mandatory under international law and under the
Act.
[14]
The need to determine whether a person falls under
any exclusion clause is not optional.  It is an integral part of
the refugee
determination process.  The rationale behind the
exclusion clause is two-fold: it protects refugee status from being
abused
by those who are undeserving; and it ensures that those who
have committed serious crimes do not escape prosecution.
[15]
[25]
It is through these provisions, amongst others,
that refugee law and the objectives of international criminal law and
other sovereign
states’ domestic criminal law intersect.
The exclusionary provisions serve to ensure that the grant of refugee
status
is not afforded to individuals who are not deserving thereof.
In the premises, the purpose of section 4(1)(b) of the Act is
not
only rational and reasonable in the circumstances, it also conforms
to the relevant laws, norms and standards of international
law.
[26]
It is
trite
that under the Constitution
, human rights
cannot be denied to any person, regardless of the crimes they have
committed.
[16]
This principle was affirmed by this Court in
Mohamed.
[17]
Section 4(1)(b) does not in any way challenge or
negatively impact on the right to life,
[18]
or the right to freedom and security of the
person.
[19]
This is so because of the principle of
non-refoulement
[20]
which is embodied in section 2 of the Act.
[21]
[27]
The principle of
non-refoulement
has been endorsed and given effect to by this
Court.
[22]
No person will be returned to her country of
origin or nationality even in circumstances where there is an
application for her extradition,
where there is a real risk that such
person will be exposed to the imposition of the death penalty or be
treated or punished in
a cruel, inhuman or degrading way or in any
way be tortured.
[23]
[28]
While
Mohamed
and
Tsebe
dealt with the risk to life following the
expulsion of a person to a retentionist country (one where capital
punishment is permissible),
the principle enunciated in both these
cases involved the protection of a person’s broader basic human
rights.  In
Tsebe
this
Court restated the conclusion reached in
Mohamed
to the effect that the State, or any official in
the employ of the state, does not have the power to extradite or
deport or in any
way remove a person from South Africa to a
retentionist state, who, to its knowledge, if deported or extradited
to such a state,
will face the real risk of the imposition and
execution of the death penalty.
[24]
This Court also confirmed that there are no
exceptions to the right to life, the right to human dignity and the
right not to be
subjected to treatment or punishment that is cruel,
inhuman or degrading.
[25]
[29]
Guideline 5
provides
that an excluded person may still be protected against return to a
country where she is at risk of ill-treatment by virtue
of other
international instruments.
[26]
For example, the 1984 Convention prohibits
the return of an individual to a country where there is a risk that
he or she will be
subjected to torture.
[27]
[30]
In the event that the exclusion decision of the
RSDO is confirmed, the question whether there is a real risk of the
applicant being
killed or persecuted if he were to be returned to
Serbia, is one which the Executive will be compelled to determine
when it considers
Serbia’s application for his
extradition.
[28]
At that stage, the applicant may avail himself of
the right to oppose his extradition to Serbia on account of there
being a real
risk that he might be killed should he be returned to
Serbia.
[31]
In
conclusion, section 4(1)(b) must be read together with section 2 of
the Act.  Section
2 creates the constitutionally saving
stop-gap measure for the possible constitutional defect of sending
non-political offenders
back to their country where there is a real
risk of persecution.
Is an exclusion
decision contingent upon a decision under section 3?
[32] The interplay
between sections 3 and 4 of the Act was among the issues that arose
in this matter.  On 1 February 2017,
the Chief Justice issued
directions that the parties file submissions on whether the
application of section 4(1)(b) of the Act
was contingent upon an RSDO
first making a determination under section 3.
[33] The applicant
contends that a determination as to whether an asylum seeker
qualifies for asylum under section 3 should be made
either prior to,
or simultaneously with, an exclusion decision under section 4(1).
The applicant bases this submission on
the principles outlined by
this Court in
Chipu
[29]
which, in his view, requires an RSDO to consider the persecution an
asylum seeker may face if extradited against the severity of
the
crime committed.  The respondents take the opposite view.
They submit that an inquiry under section 4(1)(b) outlines
the
circumstances under which a person does not qualify for refugee
status and if there is a finding that a person is excluded,
it then
becomes unnecessary to determine whether she qualifies for refugee
status in terms of section 3.
[34] According to
the applicant,
Chipu
creates a test for an exclusion decision
which an RSDO
must
apply.  This is not correct.  The
Court in
Chipu
was not concerned with the test to be applied
when making an exclusion decision but was seized with the
relationship between confidentiality
and asylum processes.
[35] The passage of
Chipu
upon which the applicant relies to
support the creation of a test is a quotation from the Handbook
[30]
in a footnote
[31]
supporting the suggestion that there may be circumstances where a
person guilty of a non-political crime may be granted refugee
status.
[32]
The applicant’s reliance on this passage to read into
Chipu
a binding test, which introduces consideration of the
risk of persecution, cannot be sustained.  In addition, the
Handbook
is merely a guideline and persuasive authority which can be
overridden by binding law to the contrary.
[33]
[36] The Handbook,
as was noted in
Chipu
, suggests that it is preferable for an
RSDO to consider the risk of persecution before making an exclusion
decision.
[34]
The answer lies in the Act.  While an RSDO exercises a
discretion in making a section 3 determination, no such

discretion exists in respect of exclusion decisions.  Once the
mentioned jurisdictional facts are proven, an applicant
must
be excluded, leaving no room for a balancing test or proportionality
inquiry.
[37]
A
purposive reading of the Act as a whole supports the textual meaning
of the section
.  The proportionality inquiry discussed in
the Handbook is, at its heart, an attempt to ensure that asylum
seekers are not
excluded and left to face grave persecution due to
minor offences; an attempt to ensure that the harms suffered by an
applicant
are not disproportionate to the crime they have
committed.
[35]
This is necessary because there is no proportionality inquiry built
into the wording of the Convention.
[38] The situation
under the Act, however, is vastly different due to the provisions of
section 2 and is an important consideration
in what test is needed
under section 4(1).  Whilst a test that takes the risk of
persecution into account may be necessary
under the Convention to
ensure that an asylum seeker’s life is not placed at risk for a
minor offence, the Act builds this
“proportionality”
inquiry into section 2 and the
non-refoulement
provisions.
However, this inquiry does not occur at the stage when the RSDO
decides the asylum application but rather at
the stage when the
asylum seeker is facing extradition.
[39] Section 2
creates a stop-gap measure that ensures that no person will be
returned to any country where their life, physical
safety or freedom
will be threatened, irrespective of whether they have been excluded
under section 4.
[36]
Thus, to require that an RSDO make a determination under section 3
prior to making an exclusion decision in order to factor
the risk of
persecution into the exclusion decision is tantamount to rendering an
inquiry under section 2 superfluous.  For
these reasons, the
applicant’s view of
Chipu
must be rejected.  I now
consider how the relationship between sections 3 and 4 should be
dealt with.
[40] The Handbook
gives an indication on the interplay between inquiries on exclusion
from, and eligibility for, refugee status:
“Normally it will be during the process of determining a
person’s refugee status that the facts leading to exclusion

under these clauses will emerge.  It may, however, also happen
that facts justifying exclusion will become known only after
a person
has been recognised as a refugee.  In such cases, the exclusion
clause will call for a cancellation of the decision
previously
taken.”
[37]
[41] The Handbook
further stresses the need for rigorous procedural safeguards, given
the grave consequences of exclusion and suggests
that, in principle,
exclusion decisions should be dealt with through regular refugee
determination procedures rather than truncated
procedures.
[38]
[42] In
Tantoush
,
the High Court held that section 3 is the operative provision in
determining refugee status and must be read with section 2.
[39]
However, the Court avoided making a finding on whether a section 3
determination must be made before an exclusion decision.
[40]
[43] Neither the
Handbook nor
Tantoush
are prescriptive on the question whether
a section 3 decision must be made before an exclusion decision.  This
may be indicative
of the fact that there is no hard and fast rule and
some degree of flexibility should be maintained.  In this
matter, there
was no need to make a decision under section 3 because
the facts supporting exclusion emerged at the outset and formed the
basis
of the applicant’s asylum claim.
[44] Courts, and
decision-makers, should favour a flexible approach that allows for an
exclusion decision, irrespective of whether
there has been a section
3 decision.  Conversely, the fact that there has been a section
3 decision granting an applicant
asylum status, should not bar an
applicant from being excluded at a later stage.  This
flexibility should not detract from
an applicant’s right to
have due consideration given to their application.  An
application process should not be truncated
solely on the basis that
the applicant falls to be excluded under section 4(1).  It was
not necessary for the RSDO to have
taken a decision under section 3
either before or when excluding the application under
section 4(1)(b).
Does a decision
under section 4(1) of the Act afford an excluded asylum seeker an
internal remedy?
[45] Section 1 of
the Act defines certain words and phrases.  “Refugee”
is defined as any person who has been granted
asylum in terms of the
Act.  An “abusive application” is defined as, among
others, an application for asylum made
with the purpose of defeating
or evading criminal or civil proceedings or the consequences
thereof.  A “fraudulent application”
is defined as
an application based on facts, information, documents or
representations which the applicant knows to be false and
which are
intended to materially affect the outcome of the application.  A
“manifestly unfounded application”
is defined as an
application made on grounds other than those on which such an
application may be made under the Act.
[46]
When faced with an application for asylum, in
terms of
section 24(3) of the Act, an RSDO
only has four options.  She can grant asylum.
[41]
She can reject the application as manifestly
unfounded, abusive or fraudulent,
[42]
or she can reject the application as
unfounded.
[43]
The fourth option is that she can refer any
question of law to the Standing Committee.
[44]
The Act sets out two different internal
remedies where an application is rejected.  If an application is
rejected as manifestly
unfounded, abusive or fraudulent, then it is
automatically reviewed by the Standing Committee.
[45]
Where an application is rejected as
unfounded, an applicant may lodge an appeal with the Refugee Appeal
Board.
[46]
[47]
The section does not expressly provide for an
internal remedy where an RSDO takes a decision to exclude an
application under section
4(1).  The respondents contend that a
person whose asylum application is rejected because she is held to
have been excluded
under section 4 is not entitled to an internal
remedy.
[48]
The approach contended for by the respondents
raises considerable concerns.  The
problems
inherent
in this approach are particularly significant given the acute
vulnerability of asylum seekers and refugees.
[47]
Many asylum seekers will in practice have
little knowledge of the law and often face language difficulties.
Yet they will
face exclusion on the exercise of judgement by a
single official, with no right of internal review or appeal by the
Standing Committee
or Refugee Appeal Board.
[49]
Providing for internal remedies is eminently
sensible given the complex and specialised legal and factual issues
that may arise;
the number of cases concerned; the need to ensure
that applicants for asylum are given a proper hearing and ventilation
of their
case; and the drastic and catastrophic consequences that may
result if an applicant is wrongly refused asylum.  This approach

is consistent with the value ascribed to internal remedies by this
Court in
Koyabe
:
“Internal administrative remedies may require specialised
knowledge which may be of a technical and/or practical nature.
The
same holds true for fact intensive cases where administrators have
easier access to the relevant facts and information.
Judicial
review can only benefit from a full record of an internal
adjudication, particularly in the light of the fact that
reviewing
courts do not ordinarily engage in fact finding and hence require a
fully developed factual record.
The duty to exhaust internal remedies is therefore a valuable and
necessary requirement in our law.”
[48]
(Footnotes omitted.)
[50] It would
be
untenable if a decision to reject an application on exclusion grounds
could be left to a single RSDO without any internal review
or appeal,
whereas a rejection on other substantive grounds results in an
automatic review by the Standing Committee or a
right of appeal
to the Refugee Appeal Board.  This cannot
represent a
correct interpretation of the Act.  Moreover, there appears to
be no textual reason for this conclusion.
As already mentioned,
section 24(3) of the Act sets out the options available to the RSDO
in adjudicating an application.
The application must be
granted; rejected as manifestly unfounded, abusive or fraudulent;
rejected as unfounded or referred to
the Standing Committee.
[51] The issue then
becomes which internal remedy process is most appropriate.
Manifestly unfounded, fraudulent and abusive
applications are,
after being rejected under section 24(3)(b), sent to the
Standing Committee on automatic review.  The
nature of such
applications is defined in the Act and an exclusion decision does not
fall within these definitions.  The Act
does not define
“unfounded applications”.  Unfounded applications
could comfortably be read to include applications
which have been
excluded under section 4(1).
[52] A textual
reading of the Act, along with a purposive interpretation of
sections 24(3)(c) and 4(1) that gives due regard
to the
constitutional right to fair administrative action would support an
interpretation that an application excluded under section 4

falls within the ambit of section 24(3)(c).  In addition, such
an interpretation is aligned with international best practice
and
guidelines.
[49]
[53] It follows that
exclusion decisions are thus subject to the internal remedies of the
Act and an applicant may appeal to the
Refugee Appeal Board.
Are there
exceptional circumstances under PAJA?
[54] Section 7(2) of
the Promotion of Administrative Justice Act
[50]
(PAJA) creates an obligation upon applicants to exhaust all internal
remedies before a court or tribunal may review any administrative

action.
[51]
The section reads:
“(a) Subject to paragraph (c), no court or tribunal shall
review an administrative action in terms of this Act unless any

internal remedy provided for in any other law has first been
exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph
(a) has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal for
judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from the

obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
[55] This obligation to exhaust internal remedies has been considered
by this Court twice and on both occasions it held that a
party
must
exhaust internal remedies unless an application is made and granted
under section 7(2)(c).
[52]
In
Koyabe
this Court unequivocally confirmed that the
purpose of the obligation in section 7(2)(a) is to ensure the
autonomy of the administrative
process:
“First, approaching a court before the higher administrative
body is given the opportunity to exhaust its own existing mechanisms

undermines the autonomy of the administrative process.  It
renders the judicial process premature, effectively usurping the

executive role and function.  The scope of administrative action
extends over a wide range of circumstances, and the crafting
of
specialist administrative procedures suited to the particular
administrative action in question enhances procedural fairness
as
enshrined in our Constitution.”
[53]
[56] However, it was
also recognised by this Court that the obligation to exhaust internal
remedies should not be rigidly imposed
or used by administrators to
frustrate an applicant’s efforts to review administrative
action.  In
Koyabe
this Court took the view that the
application envisaged in section 7(2)(c) was intended to imbue the
obligation with a degree of
flexibility:
“The duty to exhaust internal remedies is therefore a valuable
and necessary requirement in our law.  However, that
requirement
should not be rigidly imposed. Nor should it be used by
administrators to frustrate the efforts of an aggrieved person
or to
shield the administrative process from judicial scrutiny.  PAJA
recognises this need for flexibility, acknowledging
in section
7(2)(c) that exceptional circumstances may require that a court
condone non-exhaustion of the internal process and proceed
with
judicial review nonetheless.”
[54]
[57] This Court has
found that there is an internal remedy available to an asylum seeker
who is excluded under
section 4(1)(b)
of the
Refugees Act.  The
case proceeded in the High Court on the assumption that there were no
internal appeal remedies to exhaust.  In the circumstances,
the
applicant cannot be faulted for failing to exhaust his internal
remedies.  However, this does not exempt the applicant
from
requiring exemption in terms of
section 7(2)(c)
of PAJA.
[55]
[58] Has the
applicant met the requirements of
section 7(2)(c)?
These
requirements are not rigid and, as mentioned above, should not serve
to “shield the administrative process from
judicial scrutiny”
or frustrate an applicant who, in good faith, attempts to comply with
section 7(2)(a).
Section 7(2)(c)
is explicit in requiring two
jurisdictional facts to be present in order for an exemption to be
granted.  There must be exceptional
circumstances and an
application for exemption from the obligation of exhausting internal
remedies.
[59] The applicant
did not make an explicit application for exemption.  However,
his application in the High Court and in this
Court, was brought
under PAJA and sought to make out a case for exceptional
circumstances that warrant this Court making a substitution
order
under
section 8(1)(c)(ii)
of PAJA.
[56]
[60] This Court in
Dengetenge
, where an applicant had failed to exhaust internal
remedies, emphasised that the courts should not place form above
substance and
order remittal where this would be a futile
exercise.
[57]
[61] In his founding
affidavit, the applicant, relying on
Trencon,
[58]
argued that the circumstances of this case militated in favour of
granting a substitution order in that:
(a) the Court is in as good a position as the administrator to make
the decision;
(b) the decision of the administrator is a foregone conclusion;
(c) there has been a significant delay by the decision makers to the
prejudice of the applicant; and
(d) there has been bias and incompetence by the decision maker.
[62] In addition, it
is worth noting that the RSDO’s decision which is the subject
of this appeal was, in fact, the result
of an internal appeal to the
Standing Committee.
[59]
The applicant’s asylum application has twice been
considered by the Standing Committee.  The first time was when

he appealed an RSDO decision, which rejected his application as
manifestly unfounded and which gave rise to an automatic review.
The
second time was when the applicant attempted to review the RSDO
decision excluding him under
section 4(1)(b).
[63] At the hearing
of this matter, counsel for the applicant conceded, and correctly so,
that it was not the applicant’s
case that he had been deprived
of his right to an internal review or appeal against the decision of
the RSDO.  The applicant
opportunistically latched onto this
relief after the point was raised by the amicus.  The amicus was
entitled, even obliged,
to raise the lack of an internal remedy.
[60]
Counsel for the applicant fastidiously maintained during the
hearing that this Court should remit the applicant’s
application to enable him to exhaust his internal appeal to the
Refugee Appeals Board under
section 24(3)(c)
of the Act.
However, the main relief sought by the applicant in the High Court,
the Supreme Court of Appeal as well as in
this Court, was to have the
decision of the RSDO reviewed and set aside.  That is the case
the respondents have come to court
to meet.
[64] In my view, the
applicant has, in substance, made out a case which would justify the
grant of exemption.  To require a
formal application – in
these exceptional circumstances where not even the decision maker was
aware of the internal remedy
and there is, in essence, an application
before us – would be “tantamount to placing form over
substance”.
[61]
A referral to either the Refugees Appeal Board or the Standing
Committee in order for him to exhaust his internal remedies
will be a
futile exercise.
[65] In addition,
there have been significant delays in this matter.  The
applicant was arrested on, and has been in detention
since, 27
December 2011.  He has been in prison, separated from his
family, for almost six years now.  If this matter
is remitted
for a re hearing, it will be the third time that the applicant
will be heard by an RSDO in six years and in the
interim, the
applicant will remain in detention – in a state of legal and
actual limbo as processes are stayed pending the
outcome of possible
further reviews.  The circumstances of this case are
sufficiently exceptional to relax the requirement
of a formal
application and justify the grant of an exemption under
section
7(2)(c).
Should the
decision of the RSDO be reviewed and set aside?
[66] The applicant
advanced a number of grounds in support of the contention that the
RSDO erred.  I will consider only two,
namely the paucity of the
reasons she provided and whether there was procedural unfairness in
that the exclusion decision was made
on the basis of documents that
were not provided to the applicant and on which he was not afforded
an opportunity to make representations.
Reasons provided by the RSDO
[67]
Asylum
seekers are entitled to administrative action that is lawful,
reasonable and procedurally fair.
[62]
A decision on an asylum application constitutes administrative
action.
[63]
Counsel for the applicant and respondents were agreed that the
rejection of an application for refugee status must be accompanied
by
adequate reasons which, at the least, satisfy the requirement of
rationality.
[68]
In
Koyabe
this Court set out the factors to be taken into
account when determining the adequacy of reasons:
“[T]he factual context of the administrative action, the nature
and complexity of the action, the nature of the proceedings
leading
up to the action and the nature of the functionary taking the
action.  Depending on the circumstances, the reasons
need not
always be ‘full written reasons’; the ‘briefest pro
forma reasons may suffice’.  Whether
brief or lengthy,
reasons must, if they are read in their factual context, be
intelligible and informative.  They must be
informative in the
sense that they convey why the decision-maker thinks (or collectively
think) that the administrative action
is justified.”
[64]
[69] The Supreme
Court of Appeal in
Phambili
explained the value of giving
reasons as enabling an aggrieved person to understand why the
decision went against her and decide
whether or not to challenge the
decision.
[65]
It is clear from
Phambili
that the reasons should
consist of more than mere conclusions, and should refer to the
relevant facts and law, as well as the reasoning
processes leading to
those conclusions.
[66]
In this matter the RSDO provided mere conclusions, not reasons.
The RSDO failed to consider a fundamental question,
namely, is
the alleged crime political in nature.
[70]
It
must be noted, as the
amicus has mentioned, that many of the applicants for asylum who deal
with RSDOs are unrepresented, vulnerable
and lacking in the necessary
language and legal skills to have a meaningful engagement with them
and ensure that the RSDOs’
adhere to their duties.
[67]
It is therefore imperative that RSDOs
fulfill their functions properly.  This is especially the case
given the catastrophic
consequences that can result if an application
for asylum is wrongly rejected.  An RSDO’s failure to
properly exercise
her powers can have devastating consequences for
the applicant concerned.
[71]
Having regard to the context in which RSDOs make
decisions and the potential consequences thereof for an applicant,
they are required
to adhere to the principles of administrative
justice.
In this matter, the reasoning of the RSDO fell
short of the required standard in that, at the very least, the RSDO
ought to
have provided some reasoning for her conclusions.
Procedural unfairness
[72] The applicant
alleges that in making the exclusion decision, the RSDO acted
unlawfully and unfairly by relying upon documents
and information
that were not disclosed to him.  He alleges that there are
potentially two such sets of documents.  First,
the RSDO insists
that she considered the Serbian judgments
[68]
in making the exclusion decision.  There is some debate about
whether the RSDO in fact had regard to the Serbian judgments.
I
proceed on the assumption that the RSDO did have regard to these
judgments in making her decision.  Second, in her exclusion

decision, the RSDO refers to “the research information at [her]
disposal” and then includes a quotation on the legal
system in
Serbia which, according to the footnote in the exclusion decision,
derives from
“Apps.american.org/rol/publication/Serbia-legalsystem-eng.pdf”.
[73]
Section 24(1)
of the Act provides that an RSDO may, when considering an asylum
application, request further information from an applicant, the

Refugee Reception Officer or the United Nations High Commissioner for
Refugees (UNHCR) representative.
[69]
The Handbook recognises that it may be necessary for the RSDO
to assist an applicant in obtaining relevant information in
order to
properly determine the application.  This is premised on the
factual reality that persons fleeing their country often
arrive with
the barest necessities and often cannot afford legal
representation.
[70]
[74]
Regulation 12
provides:
“(1) With exception of cases decided under
section 35(1)
of the
Act, each eligibility determination will be made on a case-by-case
basis, taking into account the specific facts of the
case and
conditions in the country of feared persecution or harm.  In
making a determination on eligibility, the [RSDO] may—
(a)
request information or clarification from the applicant or Refugee
Reception Officer;
(b)
consult with and invite a UNHCR representative to provide information
and, with the permission of the asylum seeker, provide
the UNHCR
representative with any information requested by the UNHCR, pursuant
to sub-sections 24 (b) and (c) of the Act;
(c)
consider country conditions information from reputable sources; and
(d)
refer any question of law to the Standing Committee pursuant to
section 24(3)(d)
of the Act.”
[71]
[75]
Regulation
12(1)(c)
authorises the RSDO to consider information about country
conditions, when considering an application for asylum.  The
only
criterion is that this information must be from a reputable
source.
[76] Country reports
are essays that describe and analyse data for each country.  The
UNHCR describes Country Conditions Reports
as reports that cover the
general conditions, state of human rights, major events of countries,
and attitudes towards human rights
and issues like religion, sexual
orientation, occupation and gender.
[72]
The UNHCR has a number of Country Conditions Reports which are
available on their database.
[73]
These reports are not prepared by the UNHCR but by governments and
non-governmental organisations like Human Rights Watch
and Amnesty
International.
[74]
[77] In the United
States, the Executive Office for Immigration Review compiles Country
Pages on aspects of country conditions that
have relevance in removal
hearings before Immigration Judges and the Board of Immigration
Appeals.  All content is compiled
from publicly available
documents.  There is however a disclaimer that inclusion of
materials should not be construed as an
endorsement of their
content.
[75]
[78] The Serbian
judgments do not relate to information about country conditions and
should not have been relied upon by the RSDO.
The source and
nature of the additional research the RSDO did is unclear and has not
been provided to this Court.  It
is not possible to establish
whether the information falls within the ambit of the regulation.
It must thus be assumed that
this information does not fall within
the ambit of the regulation and thus the RSDO should not have
considered this additional
research.
[79] It is nevertheless necessary to state that a person can only be
said to have a fair and meaningful opportunity to make
representations
if the person knows the substance of the case against
her.
[76]
This is so because a person affected usually cannot make
worthwhile representations without knowing what factors may weigh

against her interests.
[77]
This is in accordance with the maxim
audi alteram partem
(hear the other side), which is a fundamental principle of
administrative justice and a component of the right to just
administrative
action contained in section 33 of the
Constitution.
[78]
[80] In order to give effect to the right to a fair hearing an
interested party must be placed in a position to present and
controvert
evidence in a meaningful way.
[79]
In
Foulds,
Streicher J held that a decision maker was
under an obligation to disclose adverse information and adverse
policy considerations,
and give an affected person an opportunity to
respond thereto.
[80]
If an administrator is minded to reject the explanations of an
interested party, she should at least inform the party why
she is so
minded, and afford that party the opportunity to overcome her
doubts.
[81]
[81] The Serbian
judgments, and in particular, the additional research undertaken
cannot be said to align with these principles
as they were never
provided to the applicant and the latter was not even provided to
this Court.  On the basis of the
paucity of
the reasons provided by the RSDO and the procedural unfairness, the
decision of the RSDO was invalid
and must be set aside.
Should the matter
be remitted to the RSDO?
[82] The test to be
applied in determining whether this Court may make a substitution
order and step into the shoes of an RSDO was
outlined in
Trencon
:
“
To my mind, given the doctrine of
separation of powers, in conducting this enquiry there are certain
factors that should inevitably
hold greater weight.  The first
is whether a court is in as good a position as the administrator to
make the decision.
The second is whether the decision of an
administrator is a foregone conclusion.  These two factors must
be considered cumulatively.
Thereafter, a court should still
consider other relevant factors.  These may include delay, bias
or the incompetence of an
administrator.  The ultimate
consideration is whether a substitution order is just and equitable.
This will involve
a consideration of fairness to all implicated
parties.  It is prudent to emphasise that the exceptional
circumstances enquiry
requires an examination of each matter on a
case-by-case basis that accounts for all relevant facts and
circumstances.”
[82]
(Footnotes omitted.)
[83] The applicant
contends that the criteria for substitution are met.  He submits
that this Court is in a better position
than the RSDO to determine
the matter having more information at its disposal.  He also
relies on the significant delays in
this matter.  The reasons
provided are sufficient for this Court to find that the matter ought
not to be remitted for the
exhaustion of internal remedies.  The
outcome is not a foregone conclusion for reasons that will be
discussed below but this
factor is not dispositive.  I find that
the threshold for this Court to make a substitution order is met in
this matter.
Should the
applicant be declared
a refugee?
[84] Is there reason
to believe that the applicant has committed a crime which is not of a
political nature and which, if committed
in South Africa, would be
punishable by imprisonment?
[85] Although the
Serbian judgments were not properly before the RSDO, they were part
of the Rule 53
[83]
record in the High Court and in this Court.
A
court can rely on documents contained in the record
when
deciding a matter.
[84]
This is the position even where these documents did not form part of
the initial reasons for the decision provided by the

decision-maker.
[85]
This principle was recognised by this Court in
Zondi
.
[86]
[86]
In this matter, not only was the applicant aware of the
Serbian judgments – and the RSDO’s purported reliance
thereon
– the applicant had the opportunity to and did make
submissions on the RSDO’s reliance.  While the RSDO may
have
been precluded from relying on the Serbian judgments, this Court
is not as the applicant has been afforded a right of reply.
[87] The evidentiary value to be given to decisions of foreign courts
was considered in
Tantoush
. There the Court stated:
“Courts are generally reluctant to rely upon the opinion or
findings of a court in a foreign jurisdiction about factual issues

not ventilated, tried or tested before them.  All the same, it
is not unusual in human rights and refugee cases for courts
to take
judicial notice of various facts of an historical, political or
sociological character, or to consult works of reference
or reports
of reputable agencies concerned with the protection and promotion of
human rights.  In
Kaunda and Others v President
. . .
Chaskalson CJ, commenting on reports by Amnesty International and the
International Bar Association on the human rights situation
in
Equatorial Guinea, said as follows: ‘Whilst this Court cannot
and should not make a finding as to the present position
in
Equatorial Guinea on the basis only of these reports, it cannot
ignore the seriousness of the allegations that have been made.

They are reports of investigations conducted by reputable
international organisations and a Special Rapporteur appointed by the

United Nations Human Rights Committee.  The fact that such
investigations were made and reports given is itself relevant in
the
circumstances of this case.”
[87]
[88] Though there
has been a reluctance to rely on the factual findings of decisions of
a foreign court, it is open to a Court to
take judicial notice of the
human rights situation evidenced by these decisions.
[89] Section 4(1)(b)
of the Act states that a person is not eligible for refugee status if
there is “reason to believe”
that she has committed a
non-political crime punishable by imprisonment in South Africa.
Evidence of a conviction is not
necessary for an individual to
be excluded but there should be clear and credible evidence that a
serious, non-political crime
was committed.  Nor does the
criminal standard of proof need to be met.  In this respect,
Guideline 5 accepts confessions
and testimony of witnesses, provided
they are reliable.
[88]
[90] Article 1F has
been interpreted by the Home Office in the United Kingdom through a
guidance note.
[89]
Though this note is not binding, it offers guidance on how a
conviction from another country can be treated:
“Whichever clauses of Article 1F apply, the person does not
have to have been prosecuted or convicted of any offence in any

country.  Equally, evidence of the acquittal of a person accused
of a crime or a pardon following conviction, does not necessarily

mean that exclusion cannot or should not be applied.  Each case
must be considered on its individual merits.  Evidence
of a
conviction will usually provide serious reasons for considering that
they have committed the crime and decision makers will
not normally
need to examine at length the evidential basis for the
conviction.”
[90]
[91]
The European Asylum Support Office Practical Guide on
Exclusions is also useful.
[91]
It suggests that consideration must be given to whether the
prosecution was legitimate and whether the applicant was prosecuted

or convicted for political reasons.
What is a political crime?
[92] It is not
necessary to determine the meaning of a “serious” crime
as the Act has defined it using an objective
metric, namely, a crime
punishable by imprisonment in the Republic.  Consequently, what
needs to be considered is how to establish
whether a crime is
“political”.
[93] In the absence of a definition or list of political crimes, this
is a vexing and challenging question.  Few crimes are

necessarily and inherently political.
[92]
In
T v Secretary of State
,
[93]
Lord Lloyd referred to the caution previously expressed that finding
a definitive answer to the question of what constitutes a
“political
crime” was almost impossible.
[94]
According to Guideline 5, a serious crime is non-political when
motives such as personal reasons or gain as opposed to political

reasons, are the predominant feature for the commission of the
crime.  Where there is no clear link between the crime and
its
alleged political objective, then non-political motives are
predominant.
[95]
This is referred to as the “predominance test”.
[94] Egregious acts
of violence, such as acts commonly considered to be of a “terrorist”
nature that are wholly disproportionate
to any political objective,
will be unlikely to pass the predominance test.  In addition to
the predominance test, the Handbook
suggests that factors such as the
motivation, context, methods and proportionality of a crime to its
objectives, ought to be considered
in order to determine whether the
crime is of a political nature.  Guideline 5 emphasises that for
a crime to be regarded
as political in nature, the political
objectives should be consistent with human rights principles.
[96]
Foreign
jurisdictions
In practice,
characterisation of an offence as “political” is left to
the authorities of the State from which extradition
is requested and
is one in which political considerations will usually be
involved.
[97]
The offence should have been committed in the course of some
political dispute or conflict, and have been related to the
promotion
of political ends.  Intention or motive is not conclusive,
however, and there is a presumption against classifying
as political
those offences which may be loosely described as common law crimes,
such as murder and robbery.  Inherent limitations
on the
category of political offences, by reference to their nature and
circumstances, are increasingly accepted.
[95] Various
jurisdictions have attempted to create tests to determine whether a
crime is political.  It would be useful to
consider these tests.
European
countries
[96] In 2011, the
European Union issued a directive
[98]
which contained an exclusion clause.
[99]
The Court of Justice of the European Union, when interpreting
the meaning of “serious non-political crime” has
held
that terrorist acts, which are characterised by violence towards
civilian populations, even if committed with a political
objective,
fall to be regarded as serious non-political crimes.
[100]
The Qualification Directive is a useful source of guidance.
All members of the European Union have a duty to implement
the
Qualification Directive and a number of European Union Member States
have already adapted their domestic legislation accordingly.
[101]
[97]
This adaptation has occurred in the Czech Republic
[102]
and Austria
[103]
through specific legislation.  The incorporation, however,
varies from mirroring the language of article 1F – as was
the
case in Austria – to listing specific crimes
.
Under Czech law the predominance test
[104]
is used to determine whether a crime is considered
“political”.  This requires at least a clear link
between a
crime and its political objective.  In addition, the
crime must be proportionate to the political objectives to fall
within
the scope of a political crime.
[98] Switzerland is
not a member of the European Union and consequently takes a different
approach.
[105]
Swiss law uses a two-step process, first ascertaining whether
the crime is serious and, thereafter, whether it is of a political

nature.  A crime is considered to be of a political nature if it
pursues a political goal and if it is proportional.
[106]
[99] The Federal
Supreme Court of Switzerland (
Tribunal Fédéral
)
has held that a crime is political if four requirements are met.
[107]
First, the offence must be committed on the grounds of a real
and genuine political commitment and to reach a clearly defined

political objective and not for personal gain.  Second, the act
has to be the result of a political motivation and there must
be a
direct causal link to a specific political goal.  Third, the
means must be proportional to the prejudice caused.  Finally,

the interests concerned must be of sufficient importance that the
crime is “understandable” in that a decision maker
can
understand, rationally, why the crime was committed.
African
Commission on Human and Peoples’ Rights (the Commission)
[100] The issue
whether amnesty for political crimes violates article 7(1)(a) of the
African Charter
[108]
came before the Commission after the Senagalese Parliament passed a
law, known as the Ezzan law, which provided automatic amnesty
for
crimes related to general or local elections and which were committed
with political motivations.
[109]
The complaint was that the law violated article 7(1)(a) of the
African Charter because it made it impossible for the perpetrators
of
crimes to be brought to book.  The Commission decided the matter
on the basis that domestic remedies had not been exhausted
and did
not pronounce on the validity of the law.
Algeria
[101] The President
of Algeria passed a similar decree in 2006, which gave persons
involved in the internal conflict immunity from
any legal
proceedings.  Specifically, the law provided that no legal
proceedings could be initiated against individuals or
entities who
had “contributed to saving Algeria and protecting the nation’s
institutions”.
[110]
[102] As in South
Africa, both Senegal and Algeria have anchored their definitions of
political crimes to specific events and time
periods.  This is
indicative that the historical and political context in which a crime
was committed is relevant when determining
whether the crime is
political in nature.  However, the criticism these amnesty laws
were met with suggests that a content-neutral
test is not sufficient.
One country may consider a crime political and deserving of
amnesty, while another may not.
South Africa
[103] The definition
of a political crime was something our own country had to grapple
with when amnesty was provided for acts “associated
with a
political objective” during the Truth and Reconciliation
Commission.
[111]
Section 20(3) of the Reconciliation Act outlined the criteria
to determine whether an act was political.  Among these
criteria
was the motive of the person who committed the act, whether the act
was part of a political uprising, the gravity of the
act, the
objective of the act and whether it was directed at private persons
and property or State personnel and property.  The
section also
took into consideration whether the act was committed at the behest
or with the approval of the liberation movement
or political
organisation the offender supported or belonged to.  Notably, it
included a proportionality inquiry and considered
the directness and
proximity of the relationship between the act and the object pursued.
Acts committed for personal gain
or out of personal malice or
spite were explicitly excluded.
[104] Against this
background, it is important to recall that during apartheid, many
administrative offences – such as a failure
to carry a passbook
– became part of the struggle and were transformed into acts of
political defiance.  Further, certain
political parties were
considered terrorist organisations and their actions, in fighting
against the apartheid regime, were labelled
as terrorist and illegal
activities.
[105] This raises
the concern that one nation’s terrorist may be another’s
freedom fighter.  This is particularly
true where an
organisation advances the values of human rights, freedom and
tolerance against a despotic or intolerant government.
A
content-neutral test is helpful in outlining relevant factors but
fails to take these important contextual considerations
into account.
[106] The approach
to establishing whether a crime is political should be flexible, not
overly inclusive or exclusive, and also
take into account our own
historical context.  In this inquiry, the following factors
should be considered:
(a) Was the motive behind the offence a real and genuine political
commitment to reach a clearly defined political objective rather
than
for personal or financial gain?
(b) Was there a direct link between the crime, the political
motivation and the specific political goal?
(c) Was the means used to commit the crime and harm caused,
proportional?
(d) Is the political goal in line with—
(i)
the protection and promotion of fundamental human rights including
the right to life, equality, human dignity, political participation,

non-racism and non-sexism.
(ii)
the rule of law.
(iii)
the protection and advancement of freedoms of the person, religion,
belief, opinion, expression, conscience and association.
(iv)
the creation of an open and democratic society.
Does
the applicant fall to be excluded under section 4(1)(b)?
[107]
Section 4(1)(b) disqualifies an asylum seeker from obtaining refugee
status where there is a reasonable belief that she committed
a crime
that is not of a political nature, and if committed in South Africa,
would carry a term of imprisonment.  Before determining
whether
the crime concerned is of a political nature, it is necessary to
consider whether there is a reasonable belief that the
applicant has
committed a crime.  Though a conviction may inform such a
belief, it is important to note that a conviction
is not necessary to
meet this threshold.  Conversely, the fact of a conviction,
where such conviction was politically motivated,
may militate against
a “reasonable belief” that an offence was actually
committed.
[108]
The applicant asserts that
he
was falsely implicated in the murder of Arkan and his bodyguards and
that he was wrongly convicted.  He further asserts
that the
Judge who presided over his trial and who had sentenced him to 30
years’ imprisonment, had borrowed money from a
certain Mr Dusan
Spasojević, who was a one-time leader of the Zemun Clan, a
criminal organisation.  Since he was
wrongly implicated in the
murder of Arkan, an indicted war criminal with strong criminal
connections, the applicant fears that
Arkan’s criminal
associates may avenge his death by killing him, whether in or out of
prison.  He claims that he did
not disclose his true identity on
arrival in South Africa because he was afraid that he and his family
would be targeted if his
identity and whereabouts became public
knowledge.  He also alleges that a number of persons who were
suspected of being associated
with the assassination of Arkan, had
already been murdered.
[109]
The Serbian
judgments, which were considered by the RSDO and placed before this
Court, cannot simply be accepted as determinative
proof but, at the
same time, may be taken into account when deciding if there is a
reasonable likelihood that the applicant has
committed a crime.  The
criminal proceedings against the applicant were lengthy and underwent
a number of appeals.  In
effect, four decisions were made in
respect of the charges against the applicant and a further decision
was made by the ECHR.
[112]
[110]
It appears that the
applicant received due process throughout these legal proceedings.
By his own admission, he was initially
detained but released
after three years as required by Serbian law.  The applicant has
not presented any evidence which can
disturb the prima facie evidence
that the rule of law was upheld during his trials and appeals.
The standard employed is
not beyond a reasonable doubt but merely
whether there is a reasonable belief that a crime was committed.
Counsel for the
applicant conceded, in light of the Serbian
judgments and the information received from the ECHR, that the
threshold of the reasonable
belief test had been met.  I am
satisfied that there is a reasonable likelihood that the applicant
committed the crimes he
was convicted of.  I now consider
whether the crimes were of a political nature.
[111]
The applicant has
denied complicity in the murder of Arkan and his bodyguards.  He
was thus not in a position to place any
information before this Court
regarding
the motivation for the
commission of the offences, the context in which they were committed,
its objectives, whether the crimes
were committed with a political
purpose or goal, and what interests were being protected for this
Court to determine the political
nature, if any, of the offences.
Without the benefit of this information, this Court is unable
to determine whether, in particular,
there is a clear link between
the objective and the crime, and whether the political goals sought
to be achieved align with our
fundamental values.
[112]
The contention by the
applicant that Mr
Milošević
was behind the
killing of Arkan is of little significance and cannot be sustained.
This remains speculation given that there
is no evidence to
support his involvement in the murders.  Various articles and
publications were placed before the RSDO from
which it could be
gathered that there was much speculation as to the person(s) behind
the killing of Arkan and the motive for his
killing.
[113]
[113]
In the circumstances,
t
here i
s
no evidence to support the applicant’s contention that the
murder of Arkan and his two bodyguards, was politically motivated.

In addition, and for what it is worth, the evidence as it
appears from the Serbian judgments points in the opposite direction.

The Serbian District Court concluded that the assassination of
Arkan was for monetary gain.  The Serbian Supreme Court
did
not deal with the motivation for committing the offence but confined
itself to assessing whether the objective elements of the
crime had
been proven.
[114]
The applicant has, throughout these proceedings
maintained his innocence and denied any involvement in the
assassination of Arkan.
However, the applicant has, on the
other hand, insisted that the crime was committed for political
reasons.  These two
positions cannot be treated with equal
consideration.  If the applicant maintains his innocence, he can
have no knowledge
of the motive behind the crime.  His
contentions regarding the motive for the crime are not direct
evidence but rather speculation.
[115] It is
recognised that an asylum seeker will not always be able to support
the statements she makes with documentary proof.
[114]
However, in this matter, the applicant has failed to provide
information within his knowledge about the commission of the

offences.  There are no objective or proven facts from which
this Court can conclude or draw the inference that the offences
were
political.
[115]
Instead, the applicant has relied on speculative newspaper
articles to make the case that the crime was politically motivated.

All that is before us is speculation and conjecture as to the
motives behind the crime.  Consequently, while there is
credible
evidence to support a reasonable belief that the applicant has
committed a serious crime (murder), there is no basis upon
which this
Court can find that this crime was politically motivated.
[116] This does not
close the door to the applicant’s contention that he may face
persecution on the basis of imputed political
opinion.  As
discussed above, it may arise in extradition proceedings aimed at
returning the applicant to Serbia, that question
does not arise in
this matter.
Costs
[117] The applicant
also sought to appeal against the costs order of the High Court.  The
High Court did not deal with costs
in any detail save to award costs
against the applicant.
[116]
Though the award of costs is a discretionary exercise, the High
Court did not give due regard to the fact that the matter
concerned a
constitutional challenge to section 4(1)(b) of the Act.
[118] It has been
held by this Court that where a litigant is unsuccessful against the
State they should not, as a general rule,
be made to pay costs.
[117]
However, this general rule is not absolute and in certain
circumstances, an adverse costs order may be made against a party

litigating against the State, such as where the litigation is
vexatious or frivolous.  This Court considered the circumstances

in which an adverse costs order might be justified in
Biowatch
:
“[C]ourts should not lightly turn their backs on the general
approach of not awarding costs against an unsuccessful litigant
in
proceedings against the state, where matters of genuine
constitutional import arise.  Similarly, particularly powerful

reasons must exist for a court not to award costs against the state
in favour of a private litigant who achieves substantial success
in
proceedings brought against it.  . . . [W]hen departing from the
general rule a court should set out reasons that are carefully

articulated and convincing.  This would not only be of
assistance to an appellate court, but would also enable the party
concerned and other potential litigants to know exactly what had been
done wrongly, and what should be avoided in the future.”
[118]
[119] The bar for
departing from the general rule is not insurmountable but, where a
court elects to make an adverse costs order,
this must be motivated
and supported with adequate reasons.  The High Court failed to
articulate the basis upon which it made
an adverse costs order.
This failure is sufficient to warrant intervention by this Court.
[120] On the basis
of the principles articulated in
Biowatch
, the applicant’s
appeal against the costs order from the High Court is upheld.
[121] As for costs
in this Court, ordinarily, costs follow the result.  The
applicant was partially successful in his appeal
to this Court.  The
respondents too, were also partially successful.  In my view, it
would be appropriate to make no
order as to costs.
Order
1. Leave to appeal is granted.
2. The appeal is upheld and the order of the High Court, Western Cape
Division, Cape Town, is set aside.
3. The decision of the first respondent, Ms Nompakamiso C. Xesha, is
set aside.
4. It is declared that the applicant, Mr Dobrosav Gavrić, is
excluded from refugee status in terms of
section 4(1)(b)
of the
Refugees Act 130 of 1998
.
5. There is no order as to costs.
JAFTA J
(Dlodlo AJ concurring):
[122] I have had the
benefit of reading the judgment written by my colleague, Theron J
(first judgment).  I agree that
leave to appeal should be
granted but disagree with the additional order proposed.  I do
not think that this is the sort of
case in which this Court should
itself exercise the administrative powers conferred on administrative
functionaries.
[123] It is now
settled that this Court does not sit as a court of first and last
instance unless there are compelling reasons justifying
such a
course.
[119]
The High Court did not consider exercising the power conferred on the
RSDO by the Act because that Court dismissed the application
on the
ground that none of the review grounds was established.
Consequently, if this Court were to determine whether the
applicant
should be granted asylum, it would be deciding this issue as a court
of first and last instance.
[124] The
consequence of this Court deciding matters as a court of first and
last instance is that parties are denied their right
to appeal and
this is not consonant with the Constitution which guarantees such
right to every litigant.  In addition, this
Court would be
denied the views of other courts on issues like the meaning of a
non-political crime envisaged in section 4 of the
Act.  Since a
crime that is not of a political nature is not defined in the Act,
the meaning of this expression is not easily
ascertainable.
What compounds the issue is the fact that the parties did not address
these issues in their written and oral
submissions.  Therefore,
if this Court were to determine whether the applicant was convicted
of a crime of a non-political
nature, it would decide the issue
without the benefit of oral argument.  All these factors
illustrate that it is not in the
interests of justice for this Court
to sit as a court of first and last instance in the present matter.
[125] The parties
have asked that the matter be remitted to the administrative
functionaries.  The fact that the applicant
in his affidavit
filed in this Court, had asked for a substitution is not an
impediment to requesting that the matter be remitted.
At the
hearing of the matter the applicant specifically asked for remittal
when it became clear that the impugned decision was
subject to an
internal appeal to the Appeal Board.
[126] The Appeal
Board is a specialist body where members are required to possess
expertise and experience suitable to the performance
of the functions
of the Appeal Board.
[120]
At least one of the three members should be legally qualified.
Therefore, this suggests that a court may not have some
of the
expertise and experience required for the performance of the
functions of the Appeal Board.  In
Koyabe
this Court
cautioned against judicial intervention before internal remedies have
been exhausted and stated:
“The scope of administrative action extends over a wide range
of circumstances, and the crafting of specialist administrative

procedures suited to the particular administrative action in question
enhances procedural fairness as enshrined in the Constitution.

Courts have often emphasised that what constitutes a ‘fair’
procedure will depend on the nature of the administrative
action and
circumstances of the particular case.  Thus, the need to allow
the executive agencies to utilise their own fair
procedures is
crucial in administrative action.”
[121]
[127] As far back as
20 years ago this Court declared that it was not in the interests of
justice for it to sit as a court of first
and last instance and
deprive litigants the right to appeal.  And this principle has
been followed since then.  In
Bruce
the principle was
formulated in these terms:
“It is, moreover, not ordinarily in the interests of justice
for a court to sit as a court of first and last instance, in
which
matters are decided without there being any possibility of appealing
against the decision given.  Experience shows that
decisions are
more likely to be correct if more than one court has been required to
consider the issues raised.  In such circumstances
the losing
party has an opportunity of challenging the reasoning on which the
first judgment is based, and of reconsidering and
refining arguments
previously raised in the light of such judgment.”
[122]
[128] The fact that
this Court received no argument at the hearing on the meaning of a
non-political offence must weigh heavily
against the determination of
this issue.  In
Magajane
[123]
this Court declined to adjudicate an issue that was not decided by
the High Court and the Supreme Court of Appeal and where no
extensive
argument was presented.  In that case, Van der Westhuizen J
stated:
“While the comments in
Bruce
were made in the context of
an application for direct access, they apply equally to this case in
which the substantive constitutional
issue was not considered by the
High Court and the case was not heard by the Supreme Court of Appeal.
The Court has also not had the benefit of comprehensive argument from
all concerned parties.  While the issue of provincial
and
national competence is complex, the applicant did not properly
canvass the substantive issue in his written submissions and
the
respondents did not discuss it at all in theirs.
. . .
My conclusion is that it is not in the interests of justice for this
Court to consider the challenge to section 65(3) without the
benefit
of judgments from the High Court or the Supreme Court of Appeal, of
extensive argument by the parties and of the opinions
and reasoning
of other interested parties.”
[124]
[129] None of the
parties has established factors, and the first judgment does not
point to any, which show that present litigants
must be deprived of
the constitutional right to appeal.  Nor can I think of any
reason why, in the present matter, this Court
should depart from the
well-established principle that it does not sit as a court of first
and last instance, except where there
are special circumstances
compelling it to do so.
[130] The
deprivation of the right to appeal is not the only factor that
militates against reaching the merits.  The Constitution
confers
jurisdiction on the High Court and the Supreme Court of Appeal to
decide matters such as the present.  Deciding the
merits here
would deprive those Courts of the exercise of their constitutional
jurisdiction.  This will not be in the interests
of justice.
In
Christian Education South Africa
, this Court said:
“[The] exclusion of the other courts from the exercise of a
jurisdiction given to them by the Constitution would clearly
not be
in the general interests of justice and the development of our
jurisprudence.”
[125]
[131] However, it is
true that in appropriate cases, the other courts may be bypassed.
But for that to happen, there must
be cogent reasons justifying such
a course.  The overarching principle is that if the interests of
justice so demand, this
Court will entertain a matter brought to it
directly.  The conclusion that it is in the interests of justice
must be reached
after weighing up various factors.  Here no
factors have been identified which favour the adjudication of the
merits.
On the contrary, the applicant sought remittal and this
Court did not have the benefit of argument on the meaning of a crime
of
a non-political nature, contemplated in section 4 of the Act.
[132] There are two
additional reasons militating against the determination of the
application for asylum by this Court.  The
first is the
opportunity to exhaust domestic remedies and the second is whether a
case has been made out for substitution.
These are separate
enquiries that lead to different destinations.  The first is
concerned with an appeal to the Appeal Board
and the second addresses
the exercise of the power to determine the application for asylum
afresh.
Appeal
[133] I agree with
the first judgment that, properly construed, the Act affords an
appeal to the Appeal Board against the decision
of the RSDO which was
based on section 4 of the Act.  This is the appeal which the
applicant wishes to pursue.  He did
not do so in the past
because the RSDO’s ruling expressly advised him that he could
appeal to the Standing Committee.
But when he approached that
Standing Committee, he was told that it had no jurisdiction over the
matter.  Thus the applicant’s
desire to appeal was
thwarted.  Faced with this difficulty, the applicant thought
that the only option available to him was
an application for review,
hence the institution of the current review proceedings.
[134] It was only
during the hearing in this Court that it became apparent that an
appeal lies to the Appeal Board and that the
applicant wishes to
exercise his right of appeal.  The mere existence of the
internal appeal means that under the PAJA, the
applicant was obliged
to exhaust domestic remedies before he approached the High Court on
review.  Section 7(2) of PAJA is
framed in mandatory terms and
obliges a court to require that internal remedies be exhausted before
it can entertain a review application.
The section provides
that no court shall review an administrative action unless internal
remedies have first been exhausted.
[126]
[135] Of course, the
exercise of the courts’ authority to review administrative
decisions is subject to one exception.
This is where
exceptional circumstances justifying the determination of the review
without exhausting internal remedies exist.
But even then the
existence of such circumstances alone is not sufficient.  In
addition to the exceptional circumstances,
it must be in the
interests of justice for the court to entertain the review
application if domestic remedies are not exhausted.
In
Nichol
the Supreme Court of Appeal said:
“It is now compulsory for the aggrieved party in all cases to
exhaust the relevant internal remedies unless exempted from
doing so
by way of a successful application under section 7(2)(c).
Moreover, the person seeking exemption must satisfy the
court of two
matters: first, that there are exceptional circumstances and second,
that it is in the interest of justice that the
exemption be
given.”
[127]
[136] The
interpretation of section 7(2) of PAJA in
Nichol
was endorsed
by this Court in
Koyabe
which was later reaffirmed in
Dengetenge
.
[128]
The first judgment places heavy reliance on the statement that the
statutory requirement to exhaust domestic remedies should
not be
applied rigidly to shield administrative process from judicial
scrutiny or to frustrate efforts of an aggrieved person.
[137] This statement
is not appropriate here.  There is not even a scintilla of
evidence showing that compliance with the requirement
to exhaust
domestic remedies would shield administrative process from scrutiny
or frustrate the applicant’s efforts in challenging
the
decision of the RSDO.  On the contrary, it is the applicant who
seeks to exercise his right to an internal appeal to the
Appeal
Board.
[138] Moreover, the
statement must be understood in its proper context.  By
requiring flexibility in the application of section
7(2) in
Koyabe
,
this Court did not suggest that the conditions in section 7(2)(c)
should be discarded.  What was meant was that in determining

whether exceptional circumstances exist, a court should not set the
bar too high to a level where the review of administrative
action
would be frustrated.  The point made was simply that section
7(2) should not be construed in a manner that excludes
the courts’
jurisdiction from reviewing administrative action as such meaning
would be unconstitutional.
[139] This is
evident from the later parts of the judgment in
Koyabe
where
the Court dealt specifically with the proper interpretation of
section 7(2) of PAJA.  In construing the section Mokgoro
J
stated:
“Section 7(2)(a) of PAJA provides that a court shall review
administrative action only when all relevant internal remedies

provided for in any other law are exhausted.  The provision
therefore does not preclude courts from exercising their judicial

review jurisdiction.
A court must exercise its judicial
review powers once one of two circumstances arises: when all
available internal administrative
remedies are found to have been
exhausted or when exceptional circumstances are found to exist
.”
[129]
[140] A proper
reading of
Koyabe
shows that where internal remedies have not
been exhausted, a court may entertain a review application only if
the existence of
exceptional circumstances has been established and
that it is in the interests of justice to adjudicate the review
application.
The exceptional circumstances have not been shown
to exist here and the first judgment does not mention any.
Reliance on
Dengetenge
is misplaced.  That case dealt
with a situation where the existence of exceptional circumstances was
not in dispute and the
applicant wished to be granted exemption in
terms of section 7(2)(c) of PAJA in this Court, without a formal
application having
been made in the High Court.  In that context
this Court held:
“In these circumstances to remit the matter to the High Court
for an application for an exemption to be made would be tantamount
to
placing form above substance.  This is so because Dengetenge has
conceded on the merits that the rights were granted to
it unlawfully
and in contravention of an interdict.  Therefore, on the present
facts, a remittal to the High Court would serve
no purpose other than
granting an exemption which is already justified on record.”
[130]
[141] Here there is
nothing on record which shows that an exemption is justified.
It bears repeating that the applicant does
not wish to be granted an
exemption.  Consequently there can be no justification for
granting the exemption in this matter.
[142] If the
conclusion reached by the first judgment on the review of the
impugned decision is anything to go by, the applicant
certainly has
good prospects of success in the internal appeal.  The first
judgment holds that he did not receive a fair hearing
before the
RSDO.  It is said that the decision was based on documents in
respect of which the applicant was not afforded a
chance to comment
on or make representations.  That procedural failure goes to the
root of the decision and may not be cured
on appeal because in our
law “a failure of natural justice in the trial body cannot be
cured by a sufficiency of natural
justice in an appellate
body”.
[131]
The applicant was entitled to a procedurally fair administrative
decision in terms of section 33 of the Constitution.
It appears
that the procedure followed by the RSDO fell short of this standard.
Substitution
[143] Since the
review of administrative action is governed by PAJA and not the
common law, reference must be made to PAJA in determining
whether in
a particular case the reviewing court may replace the decision of the
administrative functionary with its own.
Section 8(1) of PAJA
provides:
“(1) The court or tribunal, in proceedings for judicial review
in terms of section 6(1), may grant any order that is
just and
equitable, including orders
(a)
directing the administrator
(i) to give reasons; or
(ii) to act in the manner the court or tribunal requires;
(b)
prohibiting the administrator from acting in a particular manner;
(c)
setting aside the administrative action and
(i) remitting the matter for reconsideration by the administrator,
with or without directions; or
(ii) in exceptional cases-
(aa)
substituting or varying the administrative action or correcting a
defect resulting from the administrative action; or
(bb)
directing the administrator or any other party to the proceedings to
pay compensation”.
[144] It is apparent
from the text of section 8(1)(c) that the main remedy where
administrative action is set aside is to remit
the matter to the
decision-maker for reconsideration, subject to directions the court
may make.  It is only in exceptional
cases that the court may
substitute, vary or correct a defect in the administrative action.
The guiding principle, of course,
is that the court must grant a just
and equitable order.
[145] The language
of section 8(1)(c) is consonant with the right approach to the review
of administrative decisions.  The
primary role played by courts
in relation to administrative action is to ensure that the
Constitution is followed by administrative
functionaries when they
exercise public power.  To emphasise this point in
Koyabe
this Court stated:
“Once an administrative task is completed, it is then for the
court to perform its review responsibility, to ensure that
the
administrative action or decision has been performed or taken in
compliance with the relevant constitutional and other legal

standards.”
[132]
[146] This statement
was affirming a principle that was pronounced in
Bato Star
where this Court cautioned that a court “should be careful not
to attribute to itself superior wisdom in relation to matters

entrusted to other branches of government”.
[133]
Recently, the principle was reaffirmed in
Trencon
where
Khampepe J said:
“In our constitutional framework, a court considering what
constitutes exceptional circumstances must be guided by an approach

that is consonant with the Constitution.  This approach should
entail affording appropriate deference to the administrator.

Indeed, the idea that courts ought to recognise their own limitations
still rings true.  It is informed not only by the deference

courts have to afford an administrator but also by the appreciation
that courts are ordinarily not vested with the skills and expertise

required of an administrator.”
[134]
[147] This is the
context in which the language of section 8(1)(c) of PAJA must be read
and understood.  In its proper context,
this provision confers a
discretionary remedial power on a reviewing court.  But the
discretion to substitute is exercisable
only if the case is
exceptional.  This means that the exceptionality requirement is
a condition precedent to the exercise
of the power to substitute.
For this requirement to be met the case must contain unusual or
extraordinary features.
The mere presence of the common law
factors is not enough.
[135]
[148] Where common
law factors are relied on for the proposition that the court should
grant substitution, it must be shown not
only that those factors are
present but also that their combined effect renders the case
exceptional.  Once this is established,
the enquiry must proceed
to the next leg.  This is to determine a just and equitable
order in the circumstances of a particular
case.  It seems to me
that if this enquiry yields a range of such orders which include
substitution, the court must consider
opting for other orders.
For example, a variation of the administrative action or a correction
of a defect in it.
[149] It is only
where other orders will not meet the requirement of justice and
equity that a court may replace the impugned decision
with its own
decision.  Put differently, substitution must be granted if it
is the only just and equitable order in the circumstances
of a
particular case.  That approach to substitution is consistent
with the principle of separation of powers and the recognition
of the
fact that the exercise of an administrative power is entrusted to the
other arms of government.  Moreover, where as
here, the
repository of the power is required to possess special expertise and
knowledge, a court should be slow to grant substitution
and may do so
if it is the only order that is just and equitable.
[150] Seen in its
correct context, section 8(1)(c) empowers courts to avoid an
injustice that may flow from orders they issue.
The section
permits flexibility that is required in remedying defects in
administrative actions because more often than not, circumstances

might have changed by the time of the judicial decision on review.
[151] The first
judgment does not conclude that the procedural unfairness it
identifies constitutes an exceptional case envisaged
in section
8(1)(c).  Nor could it properly so conclude on the facts on
record.  In support of the request for substitution,
the
applicant’s affidavit filed in this Court lists a number of
factors, some of which are mentioned without any substantiation.

Without any supporting facts, the applicant accused the RSDO of
incompetence and bias.  In the absence of a factual foundation,

this accusation cannot be sustained.  Moreover, the High Court
had rejected it.
[152] The applicant
also averred that this Court “is in as good a position as the
administrator to make the decision, if not
better”.  He
continued to state that a determination of an application for asylum
requires no specialist expertise and
that all the evidence he placed
before the RSDO is on record.  This is flawed.  Section
8(2) of the Act makes it plain
that RSDOs must hold qualifications,
experience and special knowledge on refugee matters which make them
capable of performing
their functions.  Therefore, the
Director-General is required to appoint only candidates with those
qualifications as RSDOs.
Courts do not possess these
attributes.  It is doubtful that in these circumstances it can
be said that a court is in as good
a position as the administrator to
make the decision.  Moreover, when the RSDO determines an
application for asylum he or
she is not restricted to the evidence
placed before him or her by the applicant.  This much is clear
from section 24 of the
Act.
[136]
[153] Section 24(1)
mandates the RSDO to call for information from the applicant or the
Refugee Reception Officer and where necessary
to consult or solicit
information from a UNHCR representative before deciding an
application for asylum.  It does not appear
that a court of law
is equipped to make determination on whether the provisions of
section 24(1) should be invoked in a particular
case.  This
manifestly illustrate that a court may not be in a position as good
as the RSDO to determine an application for
asylum.
[154] The applicant
asserted further that it is a forgone conclusion that he meets the
requirements of refugee status.  He
said there are few
applications which were as detailed as his.  This reveals that
the applicant hopelessly misunderstood
Trencon
on which he
relied.  There is nothing foregone about his application meeting
the necessary requirements.  The concept
of a foregone
conclusion as used in
Trencon
relates to the administrator’s
decision and arises where there is only one outcome of the exercise
of discretion.  In
this regard
Trencon
says:
“A finding that the IDC’s decision is a foregone
conclusion depends on whether there was only one proper outcome of

the exercise of its discretion and remittal would serve no purpose.
In other words, if the matter were to be remitted, the
IDC would not
have any discretion left to exercise.  In my opinion, the award
of the tender to Trencon is a foregone conclusion.
It is common
cause that Trencon was the highest points earner and that the IDC’s
Support Services; Procurement Committee;
Quantity Surveyors; and
principal agent, Snow Consultants, all recommended that it be awarded
the tender.  It is also common
cause that, but for an error of
law regarding Trencon’s price escalation for the delayed site
handover, Trencon’s bid
would not have been declared
non-responsive.”
[137]
[155] The present is
not such a case.  This is evident from the outcome reached by
the first judgment on the merits of the
application for asylum.
[156] Lastly, the
applicant complained of significant delays in the finalisation of his
application and mentioned that he was arrested
and detained on 27
December 2011 and that his daughters were growing up in his absence.
There is no merit in this contention.
In it the applicant seeks
to link unrelated issues.  These are his application for asylum
and his arrest and detention.
[157] As the first
judgment shows, there have been no undue delays in processing the
application for asylum.  This matter must
be seen in the context
of its facts.  Following his conviction of the murder of three
people in Serbia in 2007, the applicant
unlawfully entered South
Africa using a false name and passport.  He lived in this
country for four years without applying
for asylum.  It was only
after he was arrested for fraud and possession of drugs that his true
identity was revealed and immediately
Serbia sought his extradition.
He was detained pending the finalisation of his criminal trial and
the extradition proceedings.
[158] The
application for asylum was made a month after Serbia had requested
his extradition and whilst he was in detention.
The first
application was unsuccessful but that decision was set aside on
review by the Standing Committee.  Thereafter, he
submitted the
current application which was refused on the ground that he was
excluded from refugee status in terms of section
4 of the Act, on
account of his convictions in Serbia.  He attempted to appeal
this decision before the Standing Committee
which pointed out that it
lacked jurisdiction.
[159] He launched
the current review proceedings in an attempt to have the decision set
aside.  The application failed in the
High Court and he
approached this Court.  From the moment he lodged his
application for asylum, the applicant was automatically
entitled to
an asylum seeker permit which would allow him to remain in this
country until his application for asylum was finalised.
And on
the authority of this Court in
Saidi
, the temporary permit
would have been extended until his case was finally decided by this
Court.
[138]
[160] This
demonstrates that the delays flowing from the judicial process did
not in any way affect the applicant in a negative
way.  If the
matter is remitted he will continue to be protected against
deportation.
[161] The arrest and
detention he complains about is not related whatsoever to the
application for asylum.  He was arrested
for committing crimes
and also for purposes of extraditing him to Serbia, which may only be
authorised by a Magistrate upon conclusion
of extradition
proceedings.  Consequently, his arrest and detention have no
bearing on whether or not substitution is appropriate.
[162] Moreover the
grounds on which the RSDO’s decision is set aside in the first
judgment warrants remittal of the matter.
The first ground was
that the reasons furnished by the RSDO were inadequate.  Section
8(1) of PAJA explicitly authorises a
court to direct an administrator
to give reasons.  I can think of no reason why such order would
fail to meet the requirements
of justice and equity in this matter.
[163] The second
ground is procedural unfairness.  The first judgment holds,
correctly so, that it was unfair for the RSDO
to take into account
documents without affording the applicant an opportunity to make
representations pertaining to those documents.
These include
the Serbian judgments.  Ordinarily remittal is granted where an
administrative decision was taken without hearing
the party adversely
affected by it.  It is for all these reasons that I think that
substitution is not justified in this matter
and that it is not
appropriate for this Court to determine the merits of the application
for asylum.
For the
Applicant: A Katz SC and D Simonsz instructed by Chris Watters
Attorneys
For the
Respondent: M A Albertus SC and G R Papier instructed by the State
Attorney, Cape Town
For
the Amicus Curiae
S Budlender and L Siyo instructed by the
Legal Resources Centre
[1]
130 of 1998.
[2]
Section 4(1)(b) of the Act provides that a person does not qualify
for refugee status if there is reason to believe that she
has
committed a crime which is not of a political nature and which, if
committed in South Africa, would be punishable by imprisonment.
[3]
European Convention for the Protection of Human Rights and
Fundamental Freedoms, 4 November 1950
(ECHR
Convention).
Article 7 of the ECHR Convention reads:
“1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a criminal

offence under national or international law at the time when it was
committed.  Nor shall a heavier penalty be imposed than
the one
that was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any
person for any act or omission which, at the time when it
was
committed, was criminal according to the general principles of law
recognised by civilised nations.”
[4]
Section 3 reads:
“Subject to Chapter 3, a person qualifies for refugee status
for the purposes of this Act if that person—
(a) owing to a well-founded fear of being persecuted by reason of
his or her race, tribe, religion, nationality, political opinion
or
membership of a particular social group, is outside the country of
his or her nationality and is unable or unwilling to avail
himself
or herself of the protection of that country.”
[5]
Gavric v Refugee Status Determination Officer, Cape Town
[2016]
ZAWCHC 36
;
[2016] 2 All SA 777
(WCC) (High Court judgment).
[6]
67 of 1962.
[7]
Chapter 14 of the Constitution, read together with the purpose of
and the preamble to the Act, enjoins the South African government
to
have regard to the relevant international and continental
instruments to which South Africa is a signatory.  These

include the Convention Relating to the Status of Refugees, 28 July
1951 (1951 Convention), the Protocol Relating to the Status
of
Refugees, 4 October 1967 (1967 Protocol) and the Organization of
African Unity Convention Governing the Specific Aspects of
Refugee
Problems in Africa, 10 September 1969 (OAU Convention).
[8]
Section 2(a) reads:
“Notwithstanding any provision of this Act or any other law to
the contrary, no person may be refused entry into the Republic,

expelled, extradited or returned to any other country or be subject
to any similar measure, if as a result of such refusal, expulsion,

extradition, return or other measure, such person is compelled to
return to or remain in a country where—
(a) he or she may be subjected to persecution on account of his or
her race, religion, nationality, political opinion or membership
of
a particular social group”.
[9]
See above n 7.
[10]
Annex I, Part II of the Constitution of the International Refugee
Organisation, 15 December 1946, explicitly lists persons who
will
not be the concern of the International Refugee Organization.  This
includes war criminals, quislings and traitors
as well as any other
persons who could be shown to have assisted the enemy in persecuting
civil populations of countries, Members
of the United Nations; or to
have voluntarily assisted the enemy forces since the outbreak of the
Second World War in their operations
against the United Nations.
This further includes ordinary criminals who were extraditable by
treaty.  See also paragraph
7(d) of the Statute of the Office
of the United Nations High Commissioner for Refugees, 14 December
1950 which reads:
“Provided that the competence of the High Commissioner as
defined in paragraph 6 above shall not extend to a person:
In
respect of whom there are serious reasons for considering that he
has committed a crime covered by the provisions of treaties
of
extradition or a crime mentioned in article VI of the London Charter
of the International Military Tribunal or by the provisions
of
article 14, paragraph 2, of the Universal Declaration of Human
Rights.”
[11]
Article 1A(2) of the 1951 Convention above n 7,
provides that a person is to be considered a refugee if—
“
owing to a well-founded fear of being
persecuted for reasons of race, religion, nationality and is unable
or, owing to such fear,
is unwilling to avail himself of the
protection of that country; or who, not having a nationality and
being outside the country
of his former habitual residence as a
result of such events, is unable or, owing to such fear, is
unwilling to return to it.”
[12]
Article 1F(b) of the 1951 Convention above n 7.
which provides:
“The provisions of this Convention shall not apply to any
person with respect to whom there are serious reasons for
considering
that:
(a) He has committed a crime against peace, a war crime, or a crime
against humanity, as defined in the international instruments
drawn
up to make provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the
country of refuge prior to his admission to that country as a

refugee;
(c) He has been guilty of acts contrary to the purpose and
principles of the United Nations.”
[13]
Id.
[14]
In terms of
section 4(1) of the Act, a person
“does not qualify” as a refugee if the exclusionary
circumstances are present.
[15]
Guidelines on International Protection No. 5:
Application of the Exclusion Clauses: Article 1F of the 1951
Convention relating
to the Status of Refugees, 4 September 2003
(Guideline 5)
states at para 2:
“The rationale for the exclusion clauses, which should be
borne in mind when considering their application, is that certain

acts are so grave as to render their perpetrators undeserving of
international protection as refugees.  Their primary purpose
is
to deprive those guilty of heinous acts, and serious common crimes,
of international refugee protection and to ensure that
such persons
do not abuse the institution of asylum in order to avoid being held
legally accountable for their acts.  The
exclusion clauses must
be applied ‘scrupulously’ to protect the integrity of
the institution of asylum, as is recognised
by UNHCR’s
Executive Committee in Conclusion No. 82 (XLVIII), 1997.  At
the same time, given the possible serious
consequences of exclusion,
it is important to apply them with great caution and only after a
full assessment of the individual
circumstances of the case. The
exclusion clauses should, therefore, always be interpreted in a
restrictive manner.”
See also Khan and
Schreier,
Refugee Law in South Africa
(Juta & Co, Cape
Town 2014) at 93; Gilbert “Current Issues in the Application
of the Exclusion Clauses” in Feller,
Türk and Nicholson
(eds.)
Refugee Protection in International Law: UNHCR’s
Global Consultations on International Protection
(Cambridge
University Press, Cambridge 2003) at 427-8:
“Reference to the travaux preparatoires shows that the
exclusion clauses sought to achieve two aims.  The first

recognizes that refugee status has to be protected from abuse by
prohibiting its grant to undeserving cases.  Due to serious

transgressions committed prior to entry, the applicant is not
deserving of protection as a refugee – there is an intrinsic

link ‘between ideas of humanity, equity and the concept of
refuge’.  The second aim of the drafters was to ensure

that those who had committed grave crimes in the Second World War or
other serious non-political crimes, or who were guilty of
acts
contrary to the purposes and principles of the United Nations, did
not escape prosecution.”
[16]
Minister of Home Affairs v Watchenuka
[2003] ZASCA 142
;
2004
(4) SA 326
(SCA) at 330B:
“Human dignity has no nationality.  It is inherent in all
people – citizens and non-citizens alike – simply

because they are human.  And while that person happens to be in
this country – for whatever reason – it must
be
respected, and is protected, by section 10 of the Bill of Rights.”
See also
Jeebhai
v Minister of Home Affairs
[2009] ZASCA 35
;
2009 (5) SA 54
(SCA) at paras 21-2.
[17]
Mohamed v President of the Republic of South Africa (Society for
the Abolition of the Death Penalty in South Africa and Another

Intervening)
[2001] ZACC 18
;
2001 (3) SA 893
(CC) at paras 37-9. See also
S v
Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) at paras 229-30:
“That is why, during argument, a tentative proposition was
made that a person who has killed another has forfeited the
right to
life.  Although the precise implications of this suggestion
were not thoroughly canvassed, this cannot be so.
The test of
our commitment to a culture of rights lies in our ability to respect
the rights not only of the weakest but also
of the worst among us.
A person does not become ‘fair game’ to be killed
at the behest of the State because
he has killed.
The protection afforded by the Constitution is applicable to every
person.  That includes the weak, the poor and the vulnerable.

It includes others as well who might appear not to need special
protection; it includes criminals and all those who have placed

themselves on the wrong side of the law.  The Constitution
guarantees them their right, as persons, to life, to dignity
and to
protection against torture or cruel, inhuman or degrading punishment
or treatment.”
[18]
Section 11 of the Constitution.
[19]
Section 12 of the Constitution.
[20]
The UNHCR Executive Committee’s Conclusion No. 82 (XLVIII),
1997, in relevant part, reads—
“(d)
Reiterates
, in light of these challenges, the need
for full respect to be accorded to the institution of asylum in
general, and considers
it timely to draw attention to the following
particular aspects:
(i) the principle of
non-refoulement
, which prohibits
expulsion and return of refugees in any manner whatsoever to the
frontiers of territories where their lives
or freedom would be
threatened on account of their race, religion, nationality,
membership of a particular social group or political
opinion,
whether or not they have been formally granted refugee status, or of
persons in respect of whom there are substantial
grounds for
believing that they would be in danger of being subjected to
torture, as set forth in the 1984 Convention against
Torture and
Other Cruel, Inhuman, or Degrading Treatment or Punishment.”
[21]
Section 2 reads—
“
Notwithstanding any provision of this Act
or any other law to the contrary, no person may be refused entry
into the Republic,
expelled, extradited or returned to any other
country or be subject to any similar measure, if as a result of such
refusal, expulsion,
extradition, return or other measure, such
person is compelled to return to or remain in a country where—
(a) he or she may be subjected to persecution on account of his or
her race, religion, nationality, political opinion or membership
of
a particular social group; or
(b) his or her life, physical safety or freedom would be threatened
on account of external aggression, occupation, foreign domination
or
other events seriously disturbing or disrupting public order in
either part or the whole of that country.”
[22]
Mohamed
above n 17 at paras 55-9;
Minister of Home Affairs
v Tsebe
[2012] ZACC 16
;
2012 (5) SA 467
(CC);
2012 (10) BCLR
1017
(CC) (
Tsebe
).  In
Tsebe
it was stated at
paras 67-8:
“We as a nation have chosen to walk the path of the
advancement of human rights.  By adopting the Constitution we

committed ourselves not to do certain things.  One of those
things is that no matter who the person is and no matter what
the
crime is that he is alleged to have committed, we shall not in any
way be party to his killing as a punishment and we will
not hand
such person over to another country where to do so will expose him
to the real risk of the imposition and execution
of the death
penalty upon him. . . . If we as a society or the state hand
somebody over to another state where he will face the
real risk of
the death penalty, we fail to protect, respect and promote the right
to life, the right to human dignity and the
right not to be
subjected to cruel, inhuman or degrading treatment or punishment of
that person, all of which are rights our
Constitution confers on
everyone. . . .  [This Court] will not be party to the killing
of any human being as a punishment
– no matter who they are
and no matter what they are alleged to have done.”
[23]
Tsebe
above n 22 at paras 67-8.
[24]
Id at para 43.
[25]
Id at para 50.
[26]
Guideline 5 above n 15 at para 9.
[27]
Article 3 of the
Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment,
GA
Res 39/46,
UN Doc A39/46 (1984), 10 December 1984 (1984
Convention).
[28]
Guideline 5 above n 15 at para 8:
“
Although a State is precluded from
granting refugee status pursuant to the 1951 Convention or the OAU
Convention to an individual
it has excluded, it is not otherwise
obliged to take any particular course of action.  The State
concerned can choose to
grant the excluded individual a stay on
other grounds, but obligations under international law may require
that the person concerned
be criminally prosecuted or extradited.”
[29]
Mail and Guardian Media Ltd v Chipu N.O.
[2013] ZACC 32
;
2013
(6) SA 367
(CC);
2013 (11) BCLR 1259
(CC) (
Chipu
).
[30]
UNHCR Handbook on Procedures and Criteria for Determining Refugee
Status under the 1951 Convention and the 1967 Protocol Relating
to
the Status of Refugees, UN Doc. HCR/IP/4/Eng/REV.1, December 2011
(Handbook).
[31]
Chipu
above n 29 at fn 27 which references paras 156-7 of the
Handbook:
“In applying this exclusion clause, it is also necessary to
strike a balance between the nature of the offence presumed
to have
been committed by the applicant and the degree of persecution
feared.  If a person has well-founded fear of very
severe
persecution, e.g. persecution endangering his life or freedom, a
crime must be very grave in order to exclude him.
If the
persecution feared is less serious, it will be necessary to have
regard to the nature of the crime or crimes presumed
to have been
committed in order to establish whether the applicant is not in
reality a fugitive from justice or whether his criminal
character
does not outweigh his character as a bona fide refugee.”
[32]
Id at para 30 which reads:
“A literal reading of section 4(1)
(b)
is that an
applicant for asylum who has committed a non-political crime which,
if committed in South Africa, would be punishable
by imprisonment,
is disqualified from refugee status.  However, it may well be
that section 4(1)
(b)
should not be read literally and
rigidly. Section 4(1)
(b)
seeks to give effect to, among
others, the [1951 Convention].  A reading of part of the
[Handbook] dealing with the provisions
of the [1951 Convention]
reveals that the relevant provision of the convention should not be
read rigidly and that there are
circumstances in which a person who
has committed a non-political crime may, nevertheless, qualify for
refugee status.”
(Footnotes omitted.)
[33]
The Handbook is published to provide “guidance” to
governments and is not part of the Conventions it refers to.  See

Handbook above n 30 at para V where it states:
“As the Handbook has been conceived as a practical guide and
not as a treatise on refugee law, references to literature
etc. have
purposely been omitted.”
[34]
Id at para 156.
[35]
Guideline 5 above n 15 at para 24 states:
“The concept has evolved in particular in relation to Article
1F(b) and represents a fundamental principle of many fields
of
international law.  As with any exception to a human rights
guarantee, the exclusion clauses must therefore be applied
in a
manner proportionate to their objective, so that the gravity of the
offence in question is weighed against the consequences
of
exclusion.”
[36]
See [26] to [31].
[37]
Handbook above n 30 at para 141.
[38]
Guideline 5 above n 15 at para 31 states:
“Given the grave consequences of exclusion, it is essential
that rigorous procedural safeguards are built into the exclusion

determination procedure. Exclusion decisions should in principle be
dealt with in the context of the regular refugee status
determination procedure and not in either admissibility or
accelerated procedures, so that a full factual and legal assessment

of the case can be made.”
[39]
Tantoush v Refugee Appeal Board
[2007] ZAGPHC 191; 2008 (1)
SA 232 (T).
[40]
Id at para 94 which states:
“However, the tenor and line of reasoning pursued in the
second respondent’s written decision indicates that he was

primarily concerned to determine whether the exclusion clause in
section 4(1)(b) of the Act applied to disqualify the applicant

from refugee status.
Though it might have been better to
have determined the threshold question first, there is nothing
inherently wrong with such
an approach.
It does, however,
offer an explanation for and insight into the line the second
respondent followed in determining whether
the applicant had a
well-founded fear of persecution.” (Emphasis added.)
[41]
Section 24(3)(a) of the Act.
[42]
Section 24(3)(b) of the Act.
[43]
Section 24(3)(c) of the Act.
[44]
Section 24(3)(d) of the Act.
[45]
Section 24(3)(c) read with section 25(1) of the Act.
[46]
Section 26(1) of the Act.
[47]
Union of Refugee Women v Director: Private
Security Industry Regulatory Authority
[2006]
ZACC 23
;
2007 (4) SA 395
(CC);
2007 (4) BCLR 339
(CC) at paras
28-30.
[48]
Koyabe
v Minister for Home
Affairs (Lawyers for Human Rights as Amicus Curiae)
[2009] ZACC
23
;
2010 (4) SA 327
(CC);
2009 (12) BCLR 1192
(CC) at paras 37-8.
[49]
Guideline 5 above n
15
at
para 31 reads:
“Given the grave consequences of
exclusion, it is essential that rigorous procedural safeguards are
built into the exclusion
determination procedure”.
[50]
3 of 2000.
[51]
Section 7(2)(a) of PAJA.
[52]
See
Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and
Development Company Ltd
[2013] ZACC 48
;
2014 (5) SA 138
(CC);
2014 (3) BCLR 265
(CC) (
Dengetenge
) and
Koyabe
above n
48.
[53]
Koyabe
above n 48 at para 36.
[54]
Id at paras 38-9.
[55]
Id at para 48 where this Court made it clear that irrespective of
the circumstances surrounding non-compliance with section 7(2)(a)
–
even if such non-compliance was the fault of the Executive –
it would only be possible for the matter to
be heard if exemption is
granted:
“This is not to say, however, that if an aggrieved party had
made an attempt in good faith to exhaust internal remedies,
but had
been frustrated in his or her efforts to do so, a court would be
prevented from granting the exemption. It is for the
court to
determine, on a case by case basis, whether circumstances exist for
judicial intervention.”
[56]
Section 8(1)(c)(ii) reads, in relevant part, as follows:
“The court or tribunal, in proceedings for judicial review in
terms of section 6(1), may grant any order that is just and

equitable, including orders . . . setting aside the administrative
action and . . . in exceptional cases—
(aa) substituting or varying the administrative action or correcting
a defect resulting from the administrative action; or
(bb) directing the administrator or any other party to the
proceedings to pay compensation”.
[57]
Dengetenge
above n 52 at paras 135-6 where it was stated:
“It is apparent from the special circumstances of this case,
set out fully in the main judgment, that if Southern Sphere
had
applied for exemption, in all probability the high court would have
granted it.
In these circumstances to remit the matter to
the high court for an application for an exemption to be made would
be tantamount
to placing form above substance.
This is so
because Dengetenge has conceded on the merits that the rights were
granted to it unlawfully and in contravention
of an interdict.
Therefore, on the present facts, a remittal to the high court would
serve no purpose other than granting an exemption which is
already
justified on record.  Accordingly, I hold that a remittal
solely for that purpose is neither justified nor warranted.

Ordering a remittal here would constitute a waste of time and
resources.  Scarce judicial resources must not be spent on
mere
formalities which are not dispositive of a real dispute in
particular litigation.”  (Emphasis added.)
[58]
Trencon Construction (Pty) Limited v Industrial Development
Corporation of South Africa Limited
[2015] ZACC 22
;
2015 (5) SA
245
(CC);
2015 (10) BCLR 1199
(CC) (
Trencon
) at para 47.
[59]
High Court judgment above n 5 at para 78.
[60]
In re: Certain Amicus Curiae Applications; Minister of Health v
Treatment Action Campaign
[2002] ZACC 13
;
2002 (5) SA 713
(CC);
2002 (10) BCLR 1023
(CC) (
In
re: Certain Amicus Curiae
Applications
) at para 5 which reads:
“The role of an amicus is to draw the attention of the court
to relevant matters of law and fact to which attention would
not
otherwise be drawn.  In return for the privilege of
participating in the proceedings without having to qualify as a

party,
an amicus has a special duty to the court.  That duty
is to provide cogent and helpful submissions that assist the court.
The amicus must not repeat arguments already made but must raise new
contentions; and generally these new contentions must
be raised on
the data already before the court.  Ordinarily it is
inappropriate for an amicus to try to introduce new contentions

based on fresh evidence.” (Emphasis added.)
[61]
Dengetenge
above n 52 at para 135.
[62]
Section 33 of the Constitution.
[63]
Section 1 of PAJA.
[64]
Koyabe
above n 48 at para 64, referring with approval to
Commissioner, South African Police Service v Maimela
2003 (5)
SA 480
(T) at 480.
[65]
Minister of Environmental Affairs and Tourism v Phambili
Fisheries (Pty) Ltd; Minister of Environmental Affairs and Tourism v

Bato Star Fishing (Pty) Ltd
[2003] ZASCA 46
;
2003 (6) SA 407
(SCA) (
Phambili
) at para 40 where the Supreme Court of Appeal
added:
“This requires that the decision-maker should set out his
understanding of the relevant law, any findings of fact on which
his
conclusions depend (especially if those facts have been in dispute),
and the reasoning processes which led him to those conclusions.”
[66]
Hoexter
Administrative Law in South Africa
2 ed (Juta &
Co Ltd, Cape Town 2012) at 477.  See also
Nomala v Permanent
Secretary, Department of Welfare, Eastern Cape
2001 (8) BCLR 844
(E) at 856D-E.
[67]
See
Curtis Francis
Doebbler v Sudan
Communication No.
235/00 (2009) AHRLR 208.  In this case, the African Commission
took the view that it was not reasonable
to expect refugees to seize
the Sudanese courts of their complaints, given their extreme
vulnerability and state of deprivation,
their fear of being deported
and their lack of adequate means to seek legal representation. See
also
Somali Association of South Africa v Limpopo Department of
Economic Development Environment and Tourism,
unreported
judgment of the North Gauteng High Court, Pretoria, Case No
16541/2013 (19 September 2013) at para 6, where the High
Court
listed the following “language difficulties, a shortage of
meaningful skills due to conditions of their country of
origin,
competition from local job seekers, and xenophobic prejudice”.
[68]
“Serbian judgments” refer to the decisions of the
Serbian Belgrade District Court under case number K.br.715/02
(2006), and the Serbian Supreme Court under case number Kz.I 1056/07
(2007).  The District Court convicted and sentenced
the
applicant to 30 years’ imprisonment, on appeal the Serbian
High Court increased the sentence to 35 years’ imprisonment.
[69]
Section 24 of the Act provides:
“(1) Upon receipt of an application for asylum the Refugee
Status Determination Officer—
(a) in order to make a decision, may request any information or
clarification he or she deems necessary from the applicant or

Refugee Reception Officer;
(b) where necessary, may consult with and invite a UNHCR
representative to furnish information on specified matters; and
(c) may, with the permission of the asylum seeker, provide the UNHCR
representative with such information as may be requested.”
[70]
The Handbook above n 30 at para 196 states:
“It is a general legal principle that the burden of proof lies
on the person submitting a claim. Often, however, an applicant
may
not be able to support his statements by documentary or other proof,
and cases in which an applicant can provide evidence
of all his
statements will be the exception rather than the rule.  In most
cases a person fleeing from persecution will
have arrived with the
barest necessities and very frequently even without personal
documents.  Thus, while the burden of
proof in principle rests
on the applicant, the duty to ascertain and evaluate all the
relevant facts is shared between the applicant
and the examiner.
Indeed, in some cases, it may be for the examiner to use all
the means at his disposal to produce the
necessary evidence in
support of the application.  Even such independent research may
not, however, always be successful
and there may also be statements
that are not susceptible of proof.  In such cases, if the
applicant's account appears credible,
he should, unless there are
good reasons to the contrary, be given the benefit of the doubt.”
[71]
Regulations in terms of
section 38
of the
Refugees Act, GN
R366
GG
21075
,
6 April 2000.
[72]
UNHCR, “Country Conditions Reports” available at
http://www.unhcr.org/country-reports.html. The UNHCR website states:
“Country Conditions Reports may be newspaper articles,
government reports, non-governmental organization reports, among

others.  This information may assist in supporting an
applicant's claim of suffered persecution or fear that they will
suffer persecution.”
See, for example,
the UNHCR Country Conditions Report on Afghanistan which discusses
human rights violations by state actors as
well as the risk profiles
for individuals with disabilities, women, members of a minority
religious group, blood feuds and sexual
orientation.  See also
the UNCHR Background Paper on Guatemala which discusses the
prevailing security conditions, developments
in respect of certain
human rights such as the right to life and land rights as well as
the situation of a variety of persons
including union members,
journalists, bus drivers, homosexual persons and victims of human
trafficking.  See UNHCR, “Eligibility
Guidelines for
Assessing the International Protection Needs of Asylum-Seekers from
Afghanistan” (19 April 2016), available
at
http://www.refworld.org/pdfid/570f96564.pdf
and Worby “UNHCR Guatemala Background Paper” UNHCR
(October 2013), available at http://www.unhcr.org/5953a8994.pdf

respectively.
[73]
UNHCR, “Country Condition Reports” above n 72.
[74]
For example, the Amnesty International Report 2017/8: the State of
the World’s Human Rights at 325 contains information
on the
conditions of detainees in the country:
“In May, the Kosovo Rehabilitation Centre for Torture Victims,
authorized to monitor the treatment of the people in detention,
was
refused access to prison hospitals after these had been transferred
to the Ministry of Health.  Some detainees were
held for long
periods before and during trial; one defendant was detained for over
31 months, in violation of the Criminal Procedure
Code.  The
Ministry of Justice failed to provide an explanation for the death
in detention of Astrit Dehari, a member of
the Vetëvendosje
opposition party, in November 2016.”
[75]
The United States Department of Justice, “Country Conditions
Research” available at
https://www.justice.gov/eoir/country-conditions-research
.
[76]
Earthlife Africa (Cape Town) v Director-General: Department of
Environmental Affairs & Tourism
[2005] ZAWCHC 7
;
2005 (3) SA 156
(C)
(
Earthlife
) at paras 52-3.
[77]
Du Preez v Truth and Reconciliation Commission
[1997] ZASCA
2
;
1997 (3) SA 204
(A) at 231H-232C.
[78]
Masetlha v President of the Republic of South Africa
[2007]
ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) at paras 74-5;
and
Zondi v MEC for Traditional and Local Government Affairs
[2005] ZACC 18
;
2006 (3) SA 1
(CC);
2006 (3) BCLR 423
(CC) at
para 112.
[79]
Earthlife
above n 76 at para 53.
[80]
Foulds v Minister of Home Affairs
1996 (4) SA 137
(W) at
149H-J and
Yuen v Minister of Home Affairs
1998 (1) SA 958
(C) at 965B-C
.
[81]
Tseleng v Chairman, Unemployment Insurance Board
1995 (3) SA
162
(T) at 178E-179A:
“Perhaps the policy is a sound one, but if a statutory body
considers that such a consideration is so material as of itself
to
determine the fate of an application, then it should at the very
least afford an applicant the opportunity of dealing with
its
difficulty and not keep the policy to itself: cf
Roux v Minister
van Wet en Orde en Andere
1989 (3) SA 46
(T) at 57G.  To
hold otherwise would be to countenance injustice, since persons who
might otherwise be fully able to justify
their application would be
deprived of the opportunity of doing so. . . .  It is beyond
question administratively unfair
to fail to draw to the attention of
an applicant that a board relies upon a particular policy and by
such failure to deprive
the applicant of the opportunity of making
submissions as to why he should be treated as one who qualifies
within the terms of
that policy.”
See also
Sokhela
v MEC for Agriculture and Environmental Affairs (KwaZulu-Natal)
2010
(5) SA 574
(KZP) at para 58;
Du Bois v Stompdrift-Kamanassie
Besproeiingsraad
2002 (5) SA 186
(C) at 198D;
Nisec (Pty) Ltd
v Western Cape Provincial Tender Board
1998 (3) SA 228
(C) at
235B-C.
[82]
Trencon
above n 58 at para 47.
[83]
Rule 53(1) of the Uniform Rules of Court reads:
“(1) Save where any law otherwise provides, all proceedings to
bring under review the decision or proceedings of any inferior
court
and of any tribunal, board or officer performing judicial,
quasi-judicial or administrative functions shall be by way of
notice
of motion directed and delivered by the party seeking to review such
decision or proceedings to the magistrate, presiding
officer or
chairman of the court, tribunal or board or to the officer, as the
case may be, and to all other parties affected—
. . .
(b) calling upon the magistrate, presiding officer, chairman or
officer, as the case may be, to despatch, within fifteen days
after
receipt of the notice of motion, to the registrar the record of such
proceedings sought to be corrected or set aside, together
with such
reasons as he is by law required or desires to give or make, and to
notify the applicant that he has done so.”
[84]
See
Helen Suzman Foundation v Judicial Service Commission
[2016]
ZASCA 161
;
2017 (1) SA 367
(SCA) at para 14:
“It is settled law that the rule is primarily intended to
operate in favour of and to the benefit of an applicant in review

proceedings and to avoid review proceedings being launched in the
dark. The rule essentially confers the benefit that: . . .
all the
parties have identical copies of the relevant documents on which to
draft their affidavits and that they and the Court
have identical
papers before them when the matter comes to Court.”
[85]
Democratic Alliance v President of the Republic of South Africa
[2016] ZAWCHC 66
;
2016 (8) BCLR 1099
(WCC) at paras 73-5.
[86]
Zondi
above n 78.
[87]
Tantoush
above n 39 at paras 19-20.
[88]
Guideline 5 above n 15 at para 35 reads:
“In order to satisfy the standard of proof under Article 1F,
clear and credible evidence is required.  It is not necessary

for an applicant to have been convicted of the criminal offence, nor
does the criminal standard of proof need to be met.  Confessions

and testimony of witnesses, for example, may suffice if they are
reliable.  Lack of cooperation by the applicant does not
in
itself establish guilt for the excludable act in the absence of
clear and convincing evidence.  Consideration of exclusion
may,
however, be irrelevant if non-cooperation means that the basics of
an asylum claim cannot be established.”
[89]
Home Office, “Exclusion (Article 1F) and Article 33(2) of the
Refugee Convention” (1 July 2016).
[90]
Id at 13.
[91]
European Asylum Support Office “EASO Practical Guide:
Exclusion” (January 2017) at 20 reads:
“The case officer should examine whether the prosecution was
legitimate and the applicant was not, for example, prosecuted
and/or
convicted for political reasons.  The case officer should also
be aware that a certain behaviour may be considered
as a criminal
act in the country of origin but not in their State.  A
criminal conviction would not automatically mean that
exclusion
clauses are to be applied.”
[92]
Goodwin-Gill and McAdam,
The Refugee in International Law
, 3
ed (Oxford University Press, Oxford 2007) at 121.
[93]
T v Secretary of State for Home Department
[1996] UKHL 8
;
[1996] 2 All ER
865
(
Secretary of State
) at 899 states: “The most that
can be attempted is a description of an idea.”
[94]
Id at 899 referring to
Schtraks v Government of Israel
[1962]
3 All ER 529.
However, the need for courts to create a
workable description was highlighted in
Schrtraks
per Lord
Reid at 539:
“I am ready to agree in the advantage so long as it is
recognised that the meaning of such words as “a political

offence”, while not to be confined within a precise
definition, does nevertheless represent an idea which is capable of

description and needs description if it is to form part of the
apparatus of a judicial decision.
Generally speaking, the courts’ reluctance to offer a
definition has been due, I think, to the realisation that it is
virtually impossible to find one that does not cover too wide a
range.”
[95]
Guideline 5 above n 15 at para 15.
[96]
Id.
[97]
Goodwin-Gill and McAdam above n 92 at 226-8.
[98]
Directive 2011/95/EU of the European Parliament and of the Council
on standards for the qualification of third-country nationals
or
stateless persons as beneficiaries of international protection, for
a uniform status for refugees or for persons eligible
for subsidiary
protection, and for the content of the protection granted (13
December 2011) (Qualification Directive).
[99]
Article 12(2)(b) of the Qualification Directive provides that a
person is excluded from being a refugee where there are serious

reasons for considering that she has committed a serious
non-political crime outside the country of refuge.
[100]
Court of Justice of the European Union,
Bundesrepublik
Deutschland v B and D
, joined cases C-57/09 and C-101/09, 9
November 2010, at para 81.
[101]
Article 78(1) of the Treaty on the Functioning of the EE, 26 October
2012 stipulates that the European Union shall develop a
common
policy on asylum.
[102]
Asylum Act No. 314/2015 Coll.
[103]
Austria: Federal Law Concerning the Granting of Asylum, 2005 Asylum
Act.
[104]
See [93]
[105]
The definition of a political crime is largely informed by
extradition law, and article 3(1) of the Federal Act on
International
Mutual Assistance in Criminal Matters which reads:
“[A]n act which, in the Swiss view is of a predominantly
political nature, constitutes a violation of the obligation to

perform military or similar service, or appears to be directed
against the national security or military defence of the requesting

State” (official english translation).
[106]
Tribunal Administratif Fédéral
, Case E-7772, 22
June 2007, at para 4.4.
[107]
Tribunal Fédéral
, case ATF
106 Ib 307
where
the Court held:
“According to the case law of the Federal Tribunal, a
common-law crime or offence constitutes a relatively political

offence if the act has a predominantly political character according
to the circumstances, namely the motives and aims of the
perpetrator. A predominantly political character is to be assumed if
the offence took place in the context of a struggle for power
in the
state or if it was committed in order to deprive someone of the
compulsion of a state which excludes any opposition. There
must be a
close, direct and clear relationship between such deeds and the
goals sought. In addition, it is necessary that the
infringement of
foreign legal interests be proportionate to the political objective
pursued and that the interests involved
are sufficiently
important to make the act at least somewhat understandable.”
(Translation from German.)
[108]
Article 7 reads:
“1. Every individual shall have the right to have his cause
heard. This comprises:
a) The right to an appeal to competent national organs against acts
of violating his fundamental rights as recognized and guaranteed
by
conventions, laws, regulations and customs in force”
[109]
FIDH v Senegal
(2006) AHRLR 119 (ACHPR 2006).
[110]
Presidential Decree titled “Measures in Recognition of the
Artisans of Safeguarding the Democratic and Popular Republic
of
Algeria” was passed in 2006. The decree provides:
“Article 44: Citizens who, through their involvement or their
determination, contributed to saving Algeria and protecting
the
nation’s institutions, performed acts of patriotism.
Article 45: No legal proceedings may be initiated against an
individual or a collective entity, belonging to any component

whatsoever of the defence and security forces of the Republic, for
actions conducted for the purpose of protecting persons and

property, safeguarding the nation or preserving the institutions of
the Democratic and Popular Republic of Algeria.  The
competent
judicial authorities are to summarily dismiss all accusations or
complaints.”
[111]
Section 20 of the Promotion of National Unity and Reconciliation Act
34 of 1995 (Reconciliation Act). Section 20(2)-(3) specifically

dealt with the meaning of the phrase “act associated with a
political objective”. While section 20(2) dealt with
the
persons covered, subsection (3) outlined the criteria to be
considered and read as follows:
“(3) Whether a particular act, omission or offence
contemplated in subsection (2) is an act associated with a political

objective, shall be decided with reference to the following
criteria:
(a) The motive of the person who committed the act, omission or
offence;
(b) the context in which the act, omission or offence took place,
and in particular whether the act, omission or offence was
committed
in the course of or as part of a political uprising, disturbance or
event, or in reaction thereto;
(c) the legal and factual nature of the act, omission or offence,
including the gravity of the act, omission or offence;
(d) the object or objective of the act, omission or offence, and in
particular whether the act, omission or offence was primarily

directed at a political opponent or State property or personnel or
against private property or individuals;
(e) whether the act, omission or offence was committed in the
execution of an order of, or on behalf of, or with the approval
of,
the organisation, institution, liberation movement or body of which
the person who committed the act was a member, an agent
or a
supporter; and
(f) the relationship between the act, omission or offence and the
political objective pursued, and in particular the directness
and
proximity of the relationship and the proportionality of the act,
omission or offence to the objective pursued, but does
not include
any act, omission or offence committed by any person referred to in
subsection (2) who acted–
(i) for personal gain: Provided that an act, omission or offence by
any person who acted and received money or anything of value
as an
informer of the State or a former state, political organisation or
liberation movement, shall not be excluded only on the
grounds of
that person having received money or anything of value for his or
her information; or
(ii) out of personal malice, ill-will or spite, directed against the
victim of the acts committed.”
[112]
The applicant was convicted by the Serbian District Court and this
conviction was overturned by the Serbian Supreme Court and
remitted
to the District Court.  The applicant was convicted again in
the Serbian District Court and this was upheld in
the Serbian
Supreme Court as per the Serbian judgments.
[113]
“
Serbian Warlord shot
dead”
BBC
News
(15
January 2000)
;
Rowland,
“Reporting on a violent death”
BBC News
(20
January 2000); Erlanger, “
The World; In a
Land of Glitz And Crimes, He Stood Out”
New
York Times
(23 January 2000).
[114]
Handbook above n 30 at para 196.
[115]
Snap-On Africa (Pty) Ltd v Joubert
[2015] ZAGPPHC 821 at para
63:
“Inferences to be drawn when circumstantial evidence is
utilised must be carefully distinguished from conjecture or
speculation.
There can be no inference lest there are objective
facts from which to infer other facts which it is sought to
establish. If
there are no positive proven facts from which the
inference can be made, the method of inference falls away and what
is left
is mere speculation or conjecture.”
See also
Makhetha
v Minister of Police
[2015] ZAGPPHC 928;
S v Mogale
2011
JDR 0787 (GSJ) at para 103.
[116]
The only mention of costs in the High Court judgment is at para 101:
“In the result, applicant’s application is dismissed

with costs.”
[117]
See
Biowatch Trust v Registrar Genetic Resources
[2009] ZACC
14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) (
Biowatch
).
[118]
Id at paras 24-5.
[119]
MM v MN
[2013] ZACC 14
;
2013 (4) SA 415
(CC);
2013 (8) BCLR
918
(CC) at paras 147 and 154;
Everfresh Market Virginia (Pty)
Ltd v Shoprite Checkers (Pty) Ltd
[2012] ZACC 30
;
2012 (1) SA
256
(CC);
2012 (3) BCLR 219
(CC) at para 64 and
Lane and Fey NNO
v Dabelstein
[2001] ZACC 14
;
2001 (2) SA 1187
(CC);
2001 (4)
BCLR 312
(CC) at para 5.
[120]
Section 13 of the Act provides:
“(1) The Appeal Board must consist of a chairperson and at
least two other members, appointed by the Minister with due
regard
to a person's suitability to serve as a member by virtue of his or
her experience, qualifications and expertise and his
or her
capability to perform the functions of the Appeal Board properly.
(2) At least one of the members of the Appeal Board must be legally
qualified.”
[121]
Koyabe
above n 48 at para 36.
[122]
Bruce v Fleecytex Johannesburg CC
[1998] ZACC 3
;
1998 (2) SA
1143
(CC);
1998 (4) BCLR 415
(CC) at para 8.
[123]
Magajane v Chairperson, North West Gambling Board
[2006] ZACC
8
;
2006 (5) SA 250
(CC);
2006 (10) BCLR 1133
(CC) (
Magajane
).
[124]
Id at paras 30-2.
[125]
Christian Education South Africa v Minister of Education
[1998] ZACC 16
;
1999 (2) SA 83
(CC); 1998 (12) BCLR (CC) 1449 at
para 9.
[126]
Section 7(2) of PAJA provides:
“(a) Subject to paragraph (c), no court or tribunal shall
review an administrative action in terms of this Act unless any

internal remedy provided for in any other law has first been
exhausted.
(b) Subject to paragraph (c), a court or tribunal must, if it is not
satisfied that any internal remedy referred to in paragraph
(a) has
been exhausted, direct that the person concerned must first exhaust
such remedy before instituting proceedings in a court
or tribunal
for judicial review in terms of this Act.
(c) A court or tribunal may, in exceptional circumstances and on
application by the person concerned, exempt such person from
the
obligation to exhaust any internal remedy if the court or tribunal
deems it in the interest of justice.”
[127]
Nichol v Registrar of Pension Funds
[2005] ZASCA 97
;
2008 (1)
SA 383
(SCA) at para 15.
[128]
Dengetenge
above n 52.
[129]
Koyabe
above n 4 at para 46.
[130]
Dengetenge
above n 12 at para 135.
[131]
Turner v Jockey Club of South Africa
1974 (3) SA 633
(A) at
658F-H.
[132]
Koyabe
above n 48 at para 36.
[133]
Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and Tourism
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR
687
(CC) (
Bato Star
).
[134]
Trencon
above n 58 at para 43.
[135]
Under the common law factors like the court is in as good a position
as the administrators and that the decision to be taken
is a forgone
conclusion may justify substitution.
[136]
Section 24(1) of the Refugees Act provides:
“(1) Upon receipt of an application for asylum the RSDO—
(a) in order to make a decision, may request any information or
clarification he or she deems necessary from an applicant or
Refugee
Reception Officer;
(b) where necessary, may consult with and invite a UNHCR
representative to furnish information on specified matters; and
(c) may, with the permission of the asylum seeker, provide the UNHCR
representative with such information as may be requested.”
[137]
Trencon
above n 58 at para 59.
[138]
Saidi v Minister of Home Affairs
[2018] ZACC 9
;
2018 (4) SA
333
(CC);
2018 (7) BCLR 856
(CC) at para 37.