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[2018] ZACC 52
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Ruta v Minister of Home Affairs (CCT02/18) [2018] ZACC 52; 2019 (3) BCLR 383 (CC); 2019 (2) SA 329 (CC) (20 December 2018)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
02/18
In the matter
between:
ALEX
RUTA
Applicant
and
MINISTER OF HOME
AFFAIRS
Respondent
Neutral citation:
Ruta v Minister of Home Affairs
[2018] ZACC 52
Coram:
Basson
AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J,
Mhlantla J, Petse AJ and Theron J
Judgment:
Cameron J (unanimous)
Heard on:
1
November 2018
Decided on:
20 December 2018
Summary:
asylum
seeker applications — effect of delay — relevance of
criminal record in South Africa — overriding principle
of
non refoulement
delay does not
impede right to asylum — only the Refugee Status Determination
Officer is authorised to consider application
merits —
Immigration Act must be read in harmony with the Refugees Act and
international law
ORDER
On appeal from the
Supreme Court of Appeal (hearing an appeal from the High Court of
South Africa, Gauteng Division, Pretoria).
The following order
is made:
1. Leave to appeal is granted and the appeal succeeds with costs,
including the costs of two counsel.
2. The order of the Supreme Court of Appeal is set aside and in its
place is substituted:
“The
appeal is dismissed with costs.”
JUDGMENT
CAMERON J (Basson
AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse
AJ and Theron J concurring):
Introduction
[1]
The applicant, Mr Alex Niwubona Ruta, is a national of
Rwanda.  In December 2014, he crossed the border from
Zimbabwe
into South Africa.  He did not enter through an
official port of entry.  In addition, he did not have a visa.
Under
the Immigration Act,
[1]
that made him an “illegal foreigner”
[2]
liable to criminal penalties
[3]
and to deportation.
[4]
Some 15 months later, in March 2016, after travails that do not
require recounting here,
[5]
he was arrested in Pretoria for road traffic violations.  It was
then discovered that he was in the country illegally.
He was
tried and imprisoned for the road traffic offences.  While he
was in prison, the Department of Home Affairs (Department)
moved to
deport him to Rwanda.  He countered by seeking to apply for
asylum under the Refugees Act.
[6]
In Rwanda, he said, he faced certain death.  The respondent, the
Minister of Home Affairs (Minister), opposed.
The Department,
whose officials deposed on behalf of the Minister, said it was too
late for him to apply.  Its attitude was
that his deportation
“should continue unabated”.
[2]
What followed was a saga.  Mr Ruta tried through the
courts to avoid deportation.  His efforts were rewarded in the
High
Court,
[7]
but were rejected in the Supreme Court of Appeal, which by a majority
reversed the High Court decision in his favour.
[8]
He now seeks to contest the adverse outcome in the Supreme Court of
Appeal.  The Minister opposes his application for
leave to
appeal.
[3]
At issue are the reach of the Refugees Act and of the
Immigration Act as well as the interplay between these two statutes;
the effect
of delay on entitlement to apply for refugee status; the
operation of the exclusionary provisions of the Refugees Act,
[9]
particularly section 4(1)(b); and whether this section applies only
to crimes committed outside South Africa.  Also at issue
is the
fidelity of the Supreme Court of Appeal to its own judgments and
whether in this case commitment to precedent (
stare decisis
)
was breached.
Litigation
history
High Court
[4]
Mr Ruta applied urgently to the High Court
of South Africa, Gauteng Division, Pretoria (High Court) to stop his
deportation.
That Court granted him an interdict enabling him
to apply for asylum under the Refugees Act.
[10]
The Court considered that
section 2 of the
Refugees Act
[11]
provided in very wide terms for the right of aspirants for refugee
status to apply.  It was not for the Court to determine
whether
an aspirant had prospects of success.  The sole power and duty
to determine whether an applicant for asylum should
be afforded
refugee status under the Refugees Act
[12]
lay with the Refugee Status Determination Officer.
[13]
The crux of the Court’s ruling was that, once an aspirant
communicates an intention to apply for refugee status, the
Department
is obliged not to obstruct the application.  That Mr Ruta had
delayed in seeking asylum did not diminish his entitlement
to apply.
The Court rejected the Department’s contention that Mr Ruta was
barred from applying for asylum by the statutory
exclusions.  At
issue was section 4(1)(b).  This bars from refugee status anyone
who has committed a crime not of a political
nature which, “if
committed in the Republic”, would be punishable by
imprisonment.  The Department contended that
the sentence of
imprisonment imposed on Mr Ruta for the road traffic offences barred
him from attaining refugee status.  The
High Court rejected
this: the exclusion applied only to crimes committed outside the
country.  Hence the local traffic infractions
did not count.
Supreme Court of Appeal
[5]
The High Court granted the Department leave to appeal.
By a majority, the Supreme Court of Appeal upheld the appeal.

The majority
[14]
considered that asylum seekers who enter South Africa are not
afforded indefinite time to apply for asylum.  They have only
a
reasonable time.  When Mr Ruta entered South Africa illegally he
became liable to be dealt with as an illegal foreigner.
Since
he delayed unreasonably in seeking to apply for asylum, at the time
of his arrest he was an illegal foreigner who had to
be dealt with in
terms of the Immigration Act, not the Refugees Act.  In this,
the majority
[15]
embraced the approach in
Kumah
.
[16]
There the High Court expressed “great concern” that the
Refugees Act is being abused,
[17]
holding that the statute does not permit applicants for asylum to
apply “whenever it may take their fancy”.
[18]
[6]
The dissentient in the Supreme Court of
Appeal
[19]
considered that, once a refugee has shown an intention to apply for
asylum, he or she is protected under the Refugees Act and its

regulations and is entitled to be afforded access to that statute’s
application process.
[20]
The issue was whether section 4(1)(b) excluded Mr Ruta – not
what was expected of him in order to comply with the Refugees
Act to
enjoy the protection it offered.
[21]
The dissentient concluded that section 4(1)(b) pertained only
to crimes committed outside the Republic.
The
appeal should therefore have been dismissed with costs.
Mootness
and leave to appeal
[7]
During the hearing in this Court, we
were informed that when the High Court granted the Minister leave to
appeal to the Supreme
Court of Appeal, it directed that effect be
given to its order to release Mr Ruta.  That was done.  Mr
Ruta then applied
for refugee status.  This was refused, but we
were told that a challenge is “in process”.  His
release and
ensuing application mean that the main substance of Mr
Ruta’s application is moot.  This Court’s ruling
will have
no direct practical effect on his present situation.
[8]
Despite this, the parties made it plain
that they wished the Court to proceed to determine the issues.
There are good reasons
for the Court to do so.  It has long been
settled that this Court may determine issues where the narrow dispute
between the
parties has become moot.  In
Independent
Electoral Commission
, the Court
afforded a declaration that a dispute between the Electoral
Commission and a sphere of government or organ of state
is not an
intergovernmental dispute, despite the matter being moot.
[22]
[9]
In
Sebola
,
the bank had expressly abandoned the judgment
sought to be overturned and tendered the relief the applicants
sought.
[23]
The dispute between the parties was therefore moot.  At the
insistence of the debtor this Court nevertheless proceeded.
It
did so, on the “axiomatic” basis that
mootness is
no absolute bar to determining an issue: the question is whether the
interests of justice require that it be decided
.
[24]
Similarly, in
Children’s
Institute
,
[25]
the Court granted a declaratory order regarding appearance of amici
curiae in the High Court,
[26]
even though between the parties the matter was moot.
[10]
Here, Mr Ruta has all along claimed that he
is acting not only on his own behalf but on behalf of the public, in
terms of section
38(b) of the Bill of Rights.
[27]
The issues his application raises affect many people.
South Africa is by international standards very heavily
burdened
by asylum seekers.
[28]
The questions are of importance to them, as well
as to the departmental officials who are tasked with dealing with
them.
Hence the
wide public
importance.
[11]
What is more, the practical effect of the
majority decision of the Supreme Court of Appeal is to reverse
or severely constrict
the effect of long-standing and authoritative
decisions of that Court construing the Refugees Act and the
Immigration Act.
These include
Abdi
,
[29]
Arse
,
[30]
Bula
[31]
and
Ersumo
,
[32]
whose correctness this Court has never been asked to determine.
[12]
This means that a contest of doctrine and practice confronts
this Court.  Should those decisions – or the majority’s

reasoning here – prevail?  The answer is of importance to
many.  There is also no doubt that constitutional issues
–
of personal liberty
[33]
and human dignity
[34]
and indeed of life
[35]
– are at stake.
[36]
In addition, the interpretation of the two
statutes at issue raises arguable points of law of general public
importance that it
is desirable for this Court to resolve.
[37]
[13]
It is to be noted that t
he Refugees Act has
been changed.  Amendments were adopted that have been signed
into law though not yet brought into effect.
[38]
Even so, the central disputes between the parties
remain live and of significance to a large number of people.
Leave to appeal
must be granted and the issues determined.
Assessment
[14]
The question is this:
should an
“illegal foreigner” who claims to be a refugee and
expresses intention to apply for asylum be permitted to
apply in
accordance with the Refugees Act instead of being dealt with under
the Immigration Act?  An ancillary question is:
does
the 15-month delay between Mr Ruta’s arrival in South Africa in
December 2014 and his arrest in March 2016 bar him from
applying for
refugee status?  More generally, can it be that a foreigner may
arrive and tarry illegally for months, without
applying for refugee
status, and then, when the law catches up,
[39]
insist on the right to apply?  On this contested issue, the High
Court and the majority in the Supreme Court of Appeal gave
sharply
conflicting answers.
[15]
But wait!  The Supreme Court of
Appeal had already answered the ancillary question.  It did so
more than five years before
Mr Ruta’s case served before it.
The answer was plainly articulated in
Ersumo
and the precedents it affirmed.
[40]
Ersumo
was
the fourth of a series of decisions that Court gave, settling major
questions about the interpretation and application of the
Refugees
Act and the Immigration Act.
[16]
Closely consonant, these four decisions
established a body of doctrine that thrummed with consistency,
principle and power.
The quartet of cases decided that asylum
applicants held in an “inadmissible facility” at a port
of entry into the
Republic enjoy the protection of the Refugees Act
and of the courts (
Abdi
);
[41]
ordered the release from detention of an asylum seeker
[42]
whose asylum transit permit
[43]
had expired, and whose application for asylum had been rejected by
the Refugee Status Determination Officer
[44]
but whose appeal before the Refugee Appeal Board
[45]
was pending (
Arse
);
[46]
affirmed that if a detained person evinces an intention to apply for
asylum, he or she is entitled to be freed and to be issued
with an
asylum seeker permit valid for 14 days
[47]
(
Bula
);
[48]
and conclusively determined that false stories, delay and adverse
immigration status nowise preclude access to the asylum application

process, since it is in that process, and there only,
[49]
that the truth or falsity of an applicant’s story is to be
determined (
Ersumo
).
[50]
[17]
The decisions expressed keen appreciation
for the burden refugees impose on the state, and the particular
burdens the Department
and its officials are obliged to bear.
[51]
But they were unequivocal in upholding the constitutional principles
underlying the Refugees Act and the Immigration Act,
and the plain
meaning of the language in those statutes.
[18]
More precisely, the Supreme Court of Appeal
precedents were plain about specifically the points at issue in this
case – does
delay, even considerable delay, and possible
untruths, obstruct access at the outset to the asylum seeker
process?  On this
the previous decisions were unequivocal.
The Department’s officials have a duty to ensure that intending
applicants
not statutorily excluded
[52]
are given every reasonable opportunity to apply (
Abdi
).
[53]
A contention by the Department that only those who at “the
first available opportunity” indicate their intention
to apply
for asylum are entitled to do so was roundly rejected.
[54]
The “every reasonable opportunity”,
at
any stage
, standard of
Abdi
was reaffirmed.
[55]
It followed “ineluctably” that, once an intention to
apply for asylum was evinced, the protective provisions
of the
Refugees Act and regulations come into play and “the
asylum seeker is entitled as of right to be set free subject
to the
provisions of the [Refugees] Act” (
Bula
).
[56]
A later contention by the Department, that undue delay deprived one
seeking to apply for asylum of the right
[57]
to be issued with a 14-day permit within which to approach a
Refugee Reception Office,
[58]
was rejected as having “no warrant” (
Ersumo
).
[59]
[19]
From this it is apparent that the answer to
the issues Mr Ruta presented to the Supreme Court of Appeal were
already to be found
in that Court’s own preceding decisions.
The Court’s disposition should have been that Mr Ruta was
entitled to
apply for asylum when he was arrested in March 2016.
And his delay, which he in any event strenuously sought to
explain,
[60]
did not preclude him.  Nor did the false permits found in his
possession, which, equally strenuously, he also sought to explain.

More particularly, even the previous unequivocal rulings of the
Supreme Court of Appeal were precisely on point.

These were that delay in itself does not disqualify an asylum
application, that the only grounds on which an application may be

refused are those set out in section 24(3) of the Refugees Act,
and that the Refugee Status Determination Officer alone is
entitled
to adjudge bogus or undeserving applications.
[61]
These decisions could not be ignored.
[20]
The question before the Court was thus not,
as the majority purported to find,
[62]
whether Mr Ruta had delayed unreasonably, since the significance of
delay had already been eviscerated by that Court’s previous

decisions.
[63]
The only questions were whether he sought to apply for asylum and
whether immigration officers should have allowed him to
do so.
Though, as the majority thought,
[64]
the facts in
Bula
[65]
might have been different, the principle
Bula
established, applied and affirmed was not.  This was that
failure to apply for asylum at “the first available
opportunity”
was no disqualification.
[66]
That was squarely on point.
[21]
It
was of course open to the Supreme Court of Appeal to reject its own
previous decisions, provided it concluded they were clearly

wrong.
[67]
But the majority made no effort to explain why
Abdi
,
Arse
,
Bula
and
Ersumo
were wrong or how.  The Supreme Court of Appeal has itself
emphasised that respect for precedent
,
which requires courts to follow the decisions of coordinate and
higher courts,
lies at the heart of
judicial practice.
[68]
This is because it is intrinsically functional to the rule of law
,
which in turn is foundational to the Constitution.
[69]
Why intrinsic?  Because without precedent, certainty,
predictability and coherence would dissipate.  The courts
would
operate without map or navigation, vulnerable to whim and fancy.
Law would not rule.
[70]
[22]
The majority therefore erred in not
rejecting the Minister’s appeal on the premises it advanced.
The majority was bound
to do so because governing precedents of the
Supreme Court of Appeal were binding upon it.  But those
decisions are not binding
on this Court.  Though this Court has
given significant rulings on refugee law,
[71]
it has not squarely considered the four Supreme Court of Appeal
decisions at issue here.  Were they correct?
[23]
To find the answer we must start with
section 2 of the Refugees Act:
“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.”
[24]
This is a remarkable provision.
Perhaps it is unprecedented in the history of our country’s
enactments.  It places
the prohibition it enacts above any
contrary provision of the Refugees Act itself – but also places
its provisions above
anything in any other statute or legal
provision.  That is a powerful decree.  Practically it does
two things.
It enacts a prohibition.  But it also
expresses a principle: that of
non refoulement
,
the concept that one fleeing persecution or threats to “his or
her life, physical safety or freedom” should not be
made to
return to the country inflicting it.
[72]
[25]
It is a noble principle – one our
country, for deep-going reasons springing from persecution of its own
people, has emphatically
embraced.  The provenance
of
section 2 of the Refugees Act lies in the Universal Declaration
of Human Rights (Universal Declaration), which guarantees
“the
right to seek and to enjoy in other countries asylum from
persecution”.
[73]
The year in which the Universal Declaration was adopted is of
anguished significance to our country, for in 1948 the
apartheid
government came to power.  Its mission was to formalise and
systematise, with often vindictive cruelty, existing
racial
subordination, humiliation and exclusion.  From then, as
apartheid became more vicious and obdurate, our country began
to
produce a rich flood of its own refugees from persecution, impelled
to take shelter in all parts of the world, but especially
in other
parts of Africa.  That history looms tellingly over any
understanding we seek to reach of the Refugees Act.
[26]
The principle of protecting refugees from persecution was
elaborated three years after the Universal Declaration, in article 33

of the Convention Relating to the Status of Refugees of 1951 (1951
Convention).
[74]
This gave substance to article 14 of the Universal Declaration.
The 1951 Convention defined “refugees”,
while codifying
non refoulement
.  South Africa as a constitutional
democracy became a State Party to the 1951 Convention and its 1967
Protocol when it acceded
to both of them on 12 January 1996
– which it did without reservation.
[75]
In doing so, South Africa embraced the principle of
non-refoulement
as it has developed since 1951.  The principle has been a
cornerstone of the international law regime on refugees.  It
has
also become a deeply-lodged part of customary international law
[76]
and is considered part of international human rights law.
[77]
As refugees put agonising pressure on national authorities and on
national ideologies in Europe, North America, and elsewhere,
the
response to these principles of African countries, including our own,
is of profound importance.
[27]
Of relevance to Mr Ruta’s position when arrested is that
the 1951 Convention protects both what it calls “
de facto
refugees” (those who have not yet had their refugee status
confirmed under domestic law), or asylum seekers,
and
“
de jure
refugees” (those whose status has been determined as
refugees).
[78]
The latter the Refugees Act defines as “refugees”.
[79]
This unavoidably entails an indeterminate area
within which fall those who seek refugee status, but have not yet
achieved it
.  Domestic courts have also recognised that
non-refoulement
should apply without distinction between
de
jure
and
de facto
refugees.
[80]
[28]
The right to seek and enjoy asylum means more than merely a
procedural right to lodge an application for asylum – although

this is a necessary component of it.  While States are not
obliged to grant asylum, international human rights law and
international
refugee law in essence require States to consider
asylum claims and to provide protection until appropriate proceedings
for refugee
status determination have been completed.
[29]
In sum, all asylum seekers are protected by the principle of
non-refoulement
, and the protection applies as long as the
claim to refugee status has not been finally rejected after a proper
procedure.
[30]
Section 2 of the Refugees Act embodies all these principles.
Yet it goes further than the 1951 Convention.  Its more generous

wording
[81]
is derived from our own continent – the Organisation of African
Unity Convention Governing the Specific Aspects of Refugee
Status in
Africa.
[82]
[31]
This is not internationalist blurb.  It applies directly
to the problem at hand.  For our Constitution requires us, when

interpreting any legislation, to prefer any reasonable interpretation
that is consistent with international law over any alternative

interpretation that is inconsistent with it.
[83]
And it provides that customary international law “is” law
in the Republic unless it is inconsistent with the
Constitution or a
statute.
[84]
And, of course, section 39(1)(b) requires us to consider
international law when interpreting the Bill of Rights.
[85]
[32]
The practical import of section 2 of
the
Refugees Act
thus springs from our specifically African
history, and from an African Convention that, at the time it was
adopted, had particular
poignancy and pertinence to South Africa and
those exiled from it.
[86]
T
his Court recently underscored t
he
central
importance of the provision.
[87]
Other courts have done the same.
[88]
Its
effect is that the principle and the prohibition it
embodies prevail not only over the Immigration Act and any other law,
but that
its provisions determine how to understand the remaining
provisions of the Refugees Act itself.
[33]
A good instance arises from section 21(4)(a) of the Refugees
Act.
[89]
In explicit terms, the provision affords express protection only to
one who already “has applied” for asylum.

Nevertheless, section 2 demands that its overriding and prevailing
principle be considered.  This is that, apart from those

officially recognised as refugees and afforded refugee status,
no
applicant
for asylum may be expelled, extradited or returned to
any other country or be subjected to any similar measures.
[90]
[34]
This raises a general question.  How does the Refugees
Act harmonise with the Immigration Act?  Counsel for the
Minister
contended that the Immigration Act was the primary statutory
vehicle at issue.  It was under this statute that the status of

asylum claimants who had not yet applied for asylum and had not
elicited the protection afforded under section 21(4)(a) of the

Refugees Act was to be determined.  He contended that a person
who, like Mr Ruta, failed to attain asylum seeker status under
the
Immigration Act was excluded from applying for it under the Refugees
Act.  Counsel relied on the provisions of the Immigration
Act
that manage the asylum process.  These include the definition of
“visa”
[91]
and the provision for a visa to temporarily sojourn in the
Republic.
[92]
In addition, the Immigration Act expressly provides for an asylum
transit visa for one “who at a port of entry claims
to be an
asylum seeker”.
[93]
[35]
The argument was that it is these provisions, primarily, that
regulate the position of asylum seekers.  A person who fails to

qualify under these provisions, or, who qualifies initially, but
fails within the five-day validity of an asylum transit visa to
apply
for asylum, without more becomes an “illegal foreigner”
under the Immigration Act.  He or she thereby
becomes
summarily liable to the consequences of illegal status,
[94]
in the form of detention and deportation.
[95]
[36]
This, however, would not be the end of the matter.  To
guard against the deportation of people deserving of protection
because
they are refugees whose status is deserving of recognition,
the Immigration Act provides some recourse through ministerial
review.
[96]
One who claims asylum but failed to enter at an official port of
entry or who failed timeously to exercise the entitlements
of an
asylum transit visa could thus always seek ministerial dispensation
under the Immigration Act.  In addition, that statute
separately
empowers the Minister on application to make provision for
distinguished visitors and to grant a foreigner (or category
of
foreigners) permanent residence.
[97]
[37]
The starting point of the Minister’s argument is thus
correct, even though whether the avenues of review for asylum seekers

are adequate seems open to substantial doubt.  It is however
true that non-South African nationals do not have the right to
enter,
to remain or to reside anywhere in the Republic.  The Bill of
Rights affords these rights only to citizens.
[98]
It is also true that South Africa may regulate the manner in which it
allows foreigners, including potential asylum seekers,
to gain entry
to the country.  It does so in the Immigration Act,
[99]
which, as this Court recognised in
Ahmed
,
[100]
complements the Refugees Act.
[38]
There is, further, avowedly no right under international
conventions to enter and reside in South Africa in contravention of
its
laws.  Under the Immigration Act, an illegal foreigner is
someone who is in the Republic in contravention of the statute.
[101]
It is also true that the Immigration Act’s fail-safe mechanisms
of review, for asylum seekers denied refugee status,
do provide some
measure of access for an asylum application.
[39]
Yet on examination the Minister’s contentions falter.
Enabling Mr Ruta and asylum seekers in his position to have their

status determined under the Refugees Act does not mean that everyone
or anyone has the right to enter the Republic anywhere across
our
borders.  The Refugees Act, though its compass is emphatically
and deliberately wide,  makes provision for authentic
asylum
seekers and genuine refugees.  A fear of persecution must be
“well-founded”,
[102]
or, in the case of external disruption, the asylum seeker must have
left his or her habitual residence under compulsion.
[103]
The statute spells out prominent exclusions from refugee
status.
[104]
In addition, it specifies precisely when refugee status ceases.
[105]
Inside the asylum determination process, the Minister may “at
any time” withdraw an asylum seeker permit if the
application
for asylum has been found to be manifestly unfounded, abusive or
fraudulent.
[106]
An asylum seeker whose permit is withdrawn may be arrested and
detained.
[107]
And, finally, a Refugee Status Determination Officer “must”
reject an application for asylum if it is “manifestly

unfounded, abusive or fraudulent”.
[108]
[40]
None of this provides a sweethearts’ charter for bogus
asylum seekers or an open door for non-refugees.  Nor do the
provisions
render our borders leaky to a flood of importuning
supplicants posing as asylum seekers.  The Refugees Act’s
provisions
and its mechanisms are hard-headed and practical.  In
design and concept they protect our national sovereignty and our
borders.
It may be that in their application administrative
capacity or skills have been lacking, but the source of the
difficulty cannot
fairly be located in the statute’s provision
for receiving genuine asylum seekers and facilitating and processing
their applications.
[41]
At heart the Minister’s argument seeks to invest the
provisions of the Immigration Act with power to trump those of the
Refugees
Act.  That cannot be.  While the Immigration Act
determines who is an “illegal foreigner” liable to
deportation,
[109]
the Refugees Act, and that statute alone, determines who may seek
asylum and who is entitled to refugee status.
[110]
[42]
The Refugees Act was enacted some four years before the
Immigration Act.  Well-established interpretive doctrine enjoins
us
to read the statutes alongside each other, so as to make sense of
their provisions together.
[111]
But it is equally clear that in this process the Immigration Act’s
provisions cannot be read to supersede or subordinate
those of the
Refugees Act.  A longstanding principle of statutory
interpretation points to the conclusion that a later statute’s

general provisions do not derogate from a statute’s specific
provisions (
lex generalis specialibus non derogat
).
[112]
[43]
The Refugees Act makes plain principled provision for the
reception and management of asylum seeker applications.
[113]
The provisions of the Immigration Act must thus be read together
with and in harmony with those of the Refugees Act.
This can
readily be done.  Though an asylum seeker who is in the country
unlawfully is an “illegal foreigner”
under the
Immigration Act, and liable to deportation, the specific provisions
of the Refugees Act intercede to provide imperatively
that,
notwithstanding that status, his or her claim to asylum must first be
processed under the Refugees Act.  That is the
meaning of
section 2 of that Act, and it is the meaning of the two statutes when
read together to harmonise with each other.
[114]
[44]
Moreover, in entrusting the processing of asylum applications
to Refugee Reception Officers
[115]
and the determination of refugee status to Refugee Status
Determination Officers
[116]
the Refugees Act makes precise and detailed provision for the matters
it covers in a way that the Immigration Act does not envisage
at
all.  It is the Refugee Status Determination Officer, and that
Officer alone, who is empowered under our law to determine
whether an
asylum claimant is a refugee or is not.  This level of
specificity indicates that, regardless of chronological
order, the
provisions of the Refugees Act govern asylum applications.
[45]
To impose the system of review the Immigration Act
creates
[117]
wholesale upon all illegal foreigners, without singling out those who
seek refugee status, would radically undermine the plain
meaning of
section 2 of the Refugees Act, in particular, and the import of the
statute generally.  This is because, in considering
whether an
applicant qualifies for asylum, the Immigration Act would interpose
an assessment of the person’s circumstances
in determining
whether to permit an application for asylum at all.  This
interposition is not envisaged at all in the Refugees
Act.  The
provisions of that statute are plain: once an application for asylum
is filed, the Refugee Reception Officer
is obliged to refer
the applicant to the Refugee Status Determination
Officer.
[118]
The Refugees Act entails no comparable filtering at this stage.
To intrude the Immigration Act would impose a filtering
wholly
inconsistent with the specific and special structures and mechanisms
that the Refugees Act creates.
[119]
[46]
The two statutes can, as already indicated, be read in
harmony: the Immigration Act affords an immigration officer a
discretion
whether to arrest and detain an illegal foreigner.
[120]
That discretion must, in the case of one seeking to claim asylum, be
exercised in deference to the express provisions of
the Refugees Act
that permit an application for refugee status to be determined.
[121]
[47]
And this is not to say that the provisions of the Immigration
Act deserve lower status or should be circumvented because they
impose
undue inconveniences on applicants for asylum.  It is to
say that the Refugees Act creates a detailed system for processing

those applications, with which the adjunct provisions of the
Immigration Act can and must be harmonised.
[122]
[48]
Also, the Minister’s argument fails to account for the
great bulk of vulnerable asylum seekers, who do not dispose over
opportunities
to obtain transit permits or to file asylum
applications in a timely manner as the Immigration Act demands.
This means it
is irreconcilable with the overriding provisions of the
Refugees Act.  As this Court recognised in
Union of Refugee
Women
[123]
and recently reaffirmed in
Ahmed
[124]
refugees are especially vulnerable persons who are traumatised and in
flight from serious human rights abuses.
[49]
The avenue of recognition for asylum seekers that the
Immigration Act embodies and on which the Minister relies is
suffocatingly
occlusive.  That statute caters only for one
narrow category of refugees, namely those who arrive at a recognised
port of
entry.
[125]
To this category it affords entitlement to an asylum transit
visa.
[126]
What this appears to envisage is a kind of desktop-management of
self identifying refugees who have the opportunity
and the
agency to self-describe as asylum seekers and claim the consequent
statutory entitlements.
[50]
The realities of our continent, of Europe, of North America
and of South Asia, and perhaps elsewhere, seem more complex.
Asylum
seekers do not arrive only where they should, nor do they
always have the opportunities and agency to claim what they should.

This, both international refugee law and international human rights
law recognise.  An appreciable number of asylum seekers
are
informal cross-border migrants who do not arrive at recognised ports
of entry and are not able to claim desktop-afforded privileges.
[127]
[51]
In particular, refugees
sur place
, an internationally
recognised category of refugees, enter the country of refuge on one
basis.  Thereafter, supervening events
in their country of
origin involuntarily render them refugees.
[128]
On the Minister’s argument, the Immigration Act does not apply
to refugees
sur place
at all, except insofar as they may seek
ministerial exemption or indulgence.
[52]
The Minister’s contention that a departmental appeal, or
an appeal to the Minister, may provide access to the asylum process

rightly proceeds on the premise that the decisions appealed against
must be irregular.  Of necessity, this entails a time
consuming
and ineffective means of access to the asylum process, which places
an undue burden on asylum seekers, and creates the
always-imminent
risk of perilous or fatal
refoulement
.  It is correct
that convenience for asylum applicants should not be elevated to an
insuperable priority.  South Africa’s
obligation is to
ensure that refugees are afforded an opportunity to apply.  The
manner in which this is afforded is for Parliament
to decide.
Yet, if the only avenue through which an asylum seeker can access the
Refugees Act is by way of appeal against
a determination of
“illegal foreigner” status,
[129]
then asylum seekers face a very possibly insuperable burden.
This is inimical to the provisions of section 2 of the Refugees
Act,
which Parliament itself enshrined into law.
[53]
The fact is that there is a gap in the twin pieces of
legislation.  Asylum seekers who do not enter through official
ports
of entry are not explicitly covered by either statute, though
the Refugees Act covers them implicitly.  Because section 2 of

the Refugees Act impels this conclusion, and because the
international principles our country has embraced impel the same
conclusion,
it must follow that the Refugees Act is the governing
legislation in these cases.
[54]
These considerations point away from the conclusion that the
Immigration Act covers the field of refugee applications or
predominates
within it.  Until the right to seek asylum is
afforded and a proper determination procedure is engaged and
completed, the
Constitution requires that the principle of
non-refoulement
as articulated in section 2 of the Refugees
Act must prevail.  The “shield of
non refoulement
”
may be lifted only after a proper determination has been completed.
The Immigration Act then applies, subject, of
course, to the
continuing obligation not to contravene customary international law
and human rights and to indigenous constitutional
safeguards.
[55]
All this impels the conclusion that the principles affirmed
and the practical determinations made in
Abdi
,
Arse
,
Bula
and
Ersumo
were correct.  This entails that
the majority decision must be overturned.  It also means that
the decision of the High Court
in
Kumah
,
[130]
upon which the majority in the Supreme Court of Appeal relied, is
incorrect and must be overruled.
[56]
What it does not mean is that delay in seeking refuge is
irrelevant.  On the contrary, it is highly relevant.  It is
a
crucial factor in determining credibility and authenticity.
This is a determination that the Refugee Status Determination
Officer
must make.  At no stage however does delay function as an
absolute disqualification from initiating the asylum application

process.
[57]
These principles also mean that both the High Court
[131]
and the dissent in the Supreme Court of Appeal
[132]
rightly construed the exclusion in section 4(1)(b).  It
cannot apply to the offences of which Mr Ruta was convicted.

This is because they were committed within South Africa.
Indeed, the preamble to the Refugees Act states that the purpose
of
the statute is to implement South Africa’s commitment to the
1951 Convention and the Organisation of African Unity

Convention.  Both these conventions explicitly provide that
exclusionary crimes must be committed outside the country of
refuge.
[133]
Quite beyond the explicit language of section 4(1)(b), to which
the High Court and the dissent in the Supreme Court
of Appeal rightly
gave credence, this is a further indication that only crimes outside
South Africa operate exclusionarily.
[58]
At a time when the world is overladen with cross-border
migrants, judges cannot be blithe about the administrative and fiscal
burdens
refugee reception imposes on the receiving country.
[134]
South Africa is amongst the world’s countries most burdened by
asylum seekers and refugees.  That is part of our
African
history, and it is part of our African present.  It is clear
from cases this Court has heard in the last decade that
the
Department is overladen and overburdened, as indeed is the country
itself.  South Africa is also a much-desired destination.

As the High Court noted in
Kumah
,
[135]
the system is open to abuse, with the ever-present risk of adverse
public sentiment.
[59]
Yet, as in
Makwanyane
[136]
and
Mohamed
[137]
and
Tsebe
,
[138]
and many other cases, our founding principles as a constitutional
democracy direct us with unavoidable clarity.  There are

solutions to the problems of refugees, and they lie within the
principles expressly articulated in and underlying our existing

statutes.
[60]
Leave to appeal must be granted and the appeal must succeed
with costs.  The order of the High Court need not be reinstated.
Order
[61]
The following order is made:
1. Leave to appeal is granted and the appeal succeeds with costs,
including the costs of two counsel.
2. The order of the Supreme Court of Appeal is set aside and in its
place is substituted:
“The
appeal is dismissed with costs”.
For the Applicant: S
Budlender and L Letsebe instructed by Lawyers for Human Rights
For the Respondent:
G Bofilatos SC instructed by the State Attorney
[1]
13 of 2002.
[2]
Section 1 of the Immigration Act defines a “foreigner”
as an “individual who is not a citizen”; and an

“illegal foreigner” as “a foreigner who is in
the Republic in contravention of this Act”.
Section 9,
headed “Admission and departure”, provides:
“(1) Subject to this Act, no person shall enter or depart from
the Republic at a place other than a port of entry.
(2) Subject to this Act, a citizen shall be admitted, provided that
he or she identifies himself or herself as such and the immigration

officer records his or her entrance.
(3) No person shall enter or depart from the Republic—
(a) unless he or she is in possession of a valid passport, and in
the case of a minor, has his or her own valid passport;
(b) except at a port of entry, unless exempted in the prescribed
manner by the Minister, which exemption may be withdrawn by
the
Minister;
(c) unless the entry or departure is recorded by an immigration
officer in the prescribed manner; and
(d) unless his or her relevant admission documents have been
examined in the prescribed manner and he or she has been interviewed

in the prescribed manner by an immigration officer:  Provided
that, in the case of a child, such examination and interview
shall
be conducted in the presence of the parent or relative or, if the
minor is not accompanied by the parent or relative, any
person of
the same gender as the minor.
(4) A foreigner who is not the holder of a permanent residence
permit contemplated in section 25 may only enter the Republic
as
contemplated in this section if—
(a) his or her passport is valid for a prescribed period; and
(b) issued with a valid visa, as set out in this Act.”
[3]
Section 49(1)(a) provides that anyone who enters or remains or
departs from the Republic, in contravention of the statute is
guilty
of an offence and liable on conviction to a fine or to imprisonment
of up to two years.
Section 49(1)(b)
provides that any illegal foreigner who fails to depart when so
ordered is guilty of an offence and liable on
conviction to a fine
or imprisonment of up to four years.
[4]
Section 32 of the Act, headed “Illegal foreigners”,
provides:
“(1) Any illegal foreigner shall depart, unless authorised by
the Director-General in the prescribed manner to remain in
the
Republic pending his or her application for a status.
(2) Any illegal foreigner shall be deported.”
[5]
Mr Ruta’s eventful first months in this country are recounted
in the judgment of the High Court,
Ruta v Minister of
Home Affairs
2016 JDR 2271 (GP) (High Court judgment); and in
that of the Supreme Court of Appeal,
Minister of Home
Affairs v Ruta
[2018] ZASCA 186
;
2018 (2) SA 450
(SCA)
(Supreme Court of Appeal judgment).
[6]
130 of 1998.
[7]
High Court judgment above n 5.
[8]
Supreme Court of Appeal judgment above n 5.
[9]
Section 4 of the Refugees Act, titled “Exclusion from refugee
status”, provides:
“(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 Organisation
of
African Unity; 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 Organisation of African Unity.”
[10]
High Court judgment above n 5 at para 2.
[11]
Section 2 of the Refugees Act, headed “General prohibition of
refusal of entry, expulsion, extradition or return to other
country
in certain circumstances”, provides:
“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.”
[12]
Section 21 of the Refugees Act provides for a procedure in which
applications for asylum are processed by Refugee Reception Officers

and Refugee Status Determination Officers.  The provision
reads:
“(1) An application for asylum must be made in person in
accordance with the prescribed procedures to a Refugee Reception

Officer at any Refugee Reception Office.
(2) The Refugee Reception Officer concerned—
(a) must accept the application form from the applicant;
(b) must see to it that the application form is properly completed,
and, where necessary, must assist the applicant in this regard;
(c) may conduct such enquiry as he or she deems necessary in order
to verify the information furnished in the application;
and
(d) must submit any application received by him or her, together
with any information relating to the applicant which he or she
may
have obtained, to a Refugee Status Determination Officer, to deal
with it in terms of section 24.
(3) When making an application for asylum, every applicant must have
his or her fingerprints or other prints taken in the prescribed

manner and every applicant who is 16 years old or older must furnish
two recent photographs of himself or herself of such dimensions
as
may be prescribed.
(4) Notwithstanding any law to the contrary, no proceedings may be
instituted or continued against any person in respect of his
or her
unlawful entry into or presence within the Republic if—
(a) such person has applied for asylum in terms of subsection (1),
until a decision has been made on the application and, where

applicable, such person has had an opportunity to exhaust his or her
rights of review or appeal in terms of Chapter 4; or
(b) such person has been granted asylum.
(5) The confidentiality of asylum applications and the information
contained therein must be ensured at all times, except that
the
Refugee Appeals Authority may, on application and on conditions it
deems fit, allow any person or the media to attend or
report on its
hearing if—
(a) the asylum seeker gives consent; or
(b) the Refugee Appeals Authority concludes that it is in the public
interest to allow any person or the media to attend or report
on its
hearing, after taking into account all relevant factors, including—
(i) the interests of the asylum seeker in retaining confidentiality;
(ii) the need to protect the integrity of the asylum process;
(iii) the need to protect the identity and dignity of the asylum
seeker;
(iv) whether the information is already in the public domain;
(v) the likely impact of the disclosure on the fairness of the
proceedings and the rights of the asylum seeker; and
(vi) whether allowing any person or the media access to its
proceedings or allowing the media to report thereon would pose a

credible risk to the life or safety of the asylum seeker or of his
or her family, friends or associates.”
[13]
In terms of section 21(2)(d) of the Refugees Act.  Section 34
of the Refugees Act provides: “A refugee must abide
by the
laws of the Republic.”
[14]
Seriti JA; Bosielo JA, Willis JA and Schippers AJA concurring.
[15]
Supreme Court of Appeal judgment above n 5 at para 27.
[16]
Kumah v Minister of Home Affairs
2018 (2) SA 510 (GJ).
[17]
Id at para 3.
[18]
Id at para 33.
[19]
Supreme Court of Appeal judgment above n 5 per Mocumie JA.
[20]
Id at para 37.
[21]
Id at para 38.
[22]
Independent Electoral Commission v Langeberg Municipality
[2001] ZACC 23
;
2001 (3) SA 925
(CC);
2001 (9)
BCLR 883
(CC).  The order provided:
“It is declared that a dispute between the Electoral
Commission and a sphere of government or an organ of state within
a
sphere of government is not an intergovernmental dispute for the
purpose of section 41(3) of the Constitution.”
[23]
Sebola v Standard Bank of South Africa Ltd
[2012] ZACC 11
;
2012 (5) SA 142
(CC);
2012 (8) BCLR 785
(CC) at paras 3 and 32-3.
[24]
Id at para 32.  See also
Van Wyk v Unitas Hospital (Open
Democratic Advice Centre as Amicus Curiae)
[2007] ZACC
24
;
2008 (2) SA 472
(CC);
2008 (4) BCLR 442
(CC) at para 29 citing
para 22 of
Radio Pretoria v Chairperson, Independent
Communications Authority of South Africa
[2004] ZACC 24
;
2005 (4) SA 319
(CC);
2005 (3) BCLR 231
(CC), where this Court said:
“It is by now axiomatic that mootness does not constitute an
absolute bar to the justiciability of an issue.  The
court has
a discretion whether or not to hear a matter.  The test is one
of the interests of justice.  A relevant consideration
is
whether the order that the court may make will have any practical
effect either on the parties or on others.  In the
exercise of
its discretion the court may decide to resolve an issue that is moot
if to do so will be in the public interest.
This will be the
case where it will either benefit the larger public or achieve legal
certainty.”
[25]
Children’s Institute v Presiding Officer, Children’s
Court, Krugersdorp
[2012] ZACC 25;
2013 (2)
SA 620 (CC); 2013 (1) BCLR 1 (CC).
[26]
The question was whether rule 16A of the Uniform Rules of Court
permits High Courts to allow a friend of the court (amicus curiae)

to adduce evidence in support of the submissions it seeks to
advance.  The Court’s order provided:
“It is declared that [r]ule 16A of the Uniform Rules of Court
permits an amicus curiae to adduce evidence in support of
its
submissions, if it is in the interests of justice.”
[27]
Section 38(b) of the Bill of Rights provides:
“Anyone listed in this section has the right to approach a
competent court, alleging that a right in the Bill of Rights
has
been infringed or threatened, and the court may grant appropriate
relief, including a declaration of rights.  The persons
who may
approach a court are—
. . .
(b) anyone acting on behalf of another person who cannot act in
their own name”
[28]
For instance, the United Nations High Commissioner for Refugees
(UNHCR) reported that, with close to 107 000 new asylum
claims
registered in 2011, South Africa was the top destination for new
asylum-seekers for the fourth successive year.
South Africa
accounted for almost one-tenth of all individual asylum applications
worldwide.  Although the 2011 figure was
69% lower than in 2010
(180 600 claims), it was twice that of 2006.  In that year, a
mere 53 400 sought protection.  Between
2006 and 2011, South
Africa registered more than 816 000 new asylum applications.
This made it by far the top destination
for asylum-seekers over a
six-year period.  Zimbabweans accounted for more than half –
close to 500 000 asylum applications.
In 2011, Zimbabweans
again accounted for half of all asylum claims registered in South
Africa (51 000 applications).
See
UNHCR
UNHCR
Statistical Yearbook 2011
(undated), available at
http://www.unhcr.org/51628b589.html
.
Most recent figures continue to rank South Africa high as a
recipient country dealing with asylum applications:
UNHCR
UNHCR Statistical
Yearbook 2016
(undated), available at
http://www.unhcr.org/afr/statistics/country/5a8ee0387/unhcr-statistical-yearbook-2016-16th-edition.html.
[29]
Abdi v Minister of Home Affairs
[2011] ZASCA 2; 2011 (3) SA
37 (SCA).
[30]
Arse v Minister of Home Affairs
[2010] ZASCA 9; 2012 (4) SA
544 (SCA).
[31]
Bula v Minister of Home Affairs
[2011] ZASCA 209; 2012 (4) SA
560 (SCA).
[32]
Ersumo v Minister of Home Affairs
[2012] ZASCA 31; 2012 (4)
SA 581 (SCA).
[33]
Section 12 of the Bill of Rights, titled “Freedom and security
of the person”, provides:
“(1) Everyone has the right to freedom and security of the
person, which includes the right—
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either public or
private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading
way.
(2) Everyone has the right to bodily and psychological integrity,
which includes the right—
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without
their informed consent.”
[34]
Section 10 of the Bill of Rights provides that “[e]veryone has
inherent dignity and the right to have their dignity respected
and
protected”.
[35]
Section 11 of the Bill of Rights provides that “[e]veryone has
the right to life”.
[36]
Saidi v Minister of Home Affairs
[2018] ZACC 9
;
2018 (4) SA
333
(CC);
2018 (7) BCLR 856
(CC) at paras 9 and 18;
Ahmed v
Minister of Home Affairs
[2018] ZACC 39
; 2018 JDR 1719 (CC);
2018 (12) BCLR 1451
(CC) at paras 20-2.
[37]
Section 167(3) of the Constitution provides:
“The Constitutional Court—
(a) is the highest court of the Republic; and
(b) may decide—
(i) constitutional matters; and
(ii) any other matter, if the Constitutional Court grants leave to
appeal on the grounds that the matter raises an arguable point
of
law of general public importance which ought to be considered by
that Court; and
(c) makes the final decision whether a matter is within its
jurisdiction.”
[38]
Refugees Amendment Act 33 of 2008
, Refugees Amendment Act 12 of
2011, Refugees Amendment Act 10 of 2015 and Refugees Amendment Act
11 of 2017.
[39]
As emerges from the factual account set out in the judgments of the
High Court and the Supreme Court of Appeal, Mr Ruta is very

insistent that he did not tarry at all, but that he was diverted
from applying for refugee status by exigent circumstances related
to
his departure from Rwanda and his arrival in, and his mission to,
South Africa.
[40]
Ersumo
above n 32.
[41]
Abdi
above n 29.
[42]
Section 21(1) of the Refugees Act provides that an application for
asylum must be made in person in accordance with the prescribed

procedures to a Refugee Reception Officer at any Refugee Reception
Office.
Section 22(1) of
the Act provides that a Refugee Reception Officer must, pending the
outcome of an application in terms of section
21(1), issue to the
applicant an asylum seeker permit in the prescribed form allowing
the applicant to sojourn in the Republic
temporarily, subject to any
conditions, determined by the Standing Committee, which are not
in conflict with the Constitution
or international law and are
endorsed by the Refugee Reception Officer on the permit.
[43]
Section 23 of the Refugees Act provides if the Minister has
withdrawn an asylum seeker permit in terms of section 22(6), he or

she may, subject to section 29, cause the holder to be arrested and
detained pending the finalisation of the application for
asylum, in
the manner and place determined by him or her with due regard to
human dignity.
Section 29
provides:
“(1) No person may be detained in terms of this Act for a
longer period than is reasonable and justifiable and any detention

exceeding 30 days must be reviewed immediately by a judge of the
High Court of the provincial division in whose area of jurisdiction

the person is detained, designated by the Judge President of that
division for that purpose and such detention must be reviewed
in
this manner immediately after the expiry of every subsequent period
of 30 days.
(2) The detention of a child must be used only as a measure of last
resort and for the shortest appropriate period of time.”
[44]
Section 22(2) of the Refugees Act provides that the Refugee
Reception Officer concerned (a) must accept the application form

from the applicant; (b) must see to it that the application
form is properly completed, and, where necessary, must assist
the
applicant in this regard; (c) may conduct such enquiry as he or
she deems necessary in order to verify the information
furnished in
the application; and (d) must submit any application received
by him or her, together with any information
relating to the
applicant which he or she may have obtained, to a Refugee Status
Determination Officer, to deal with it in terms
of section 24.
Section 24(1)
provides that—
“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 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.”
[45]
Section 14(1) of the Refugees Act provides that the Refugees Appeal
Board, which the Act established in section 12, must (a)
hear and
determine any question of law referred to it in terms of this Act;
(b) hear and determine any appeal lodged in
terms of this Act;
(c) advise the Minister or Standing Committee regarding any matter
which the Minister or Standing Committee
refers to the Appeal Board.
[46]
Arse
above n 30.
[47]
The 14-day period is found in regulation 2(2) of the Refugee
Regulations issued in terms of section 38 of the Refugees Act.

Regulation 2 provides:
“(1) An application for asylum in terms of section 21 of the
Act:
(a) must be lodged by the applicant in person at a designated
Refugee Reception Office without delay;
(b) must be in the form and contain substantially the information
prescribed in Annexure 1 to these Regulations; and
(c) must be completed in duplicate.
(2) Any person who entered the Republic and is encountered in
violation of the [Immigration] Act, who has not submitted an

application pursuant to sub regulation 2(1), but indicates
an intention to apply for asylum shall be issued with an appropriate

permit valid for 14 days within which they must approach a Refugee
Reception Office to complete an asylum application.”
[48]
Bula
above n 31.
[49]
Section 24(3) of the Refugees Act mandates a Refugee Status
Determination Officer to (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 for Refugee Affairs
established by sections 9 to 20 of the Refugees Act.
[50]
Ersumo
above n 32 at paras 13-6, construing, applying and
affirming
Bula
above n 31 at para 74.
[51]
Arse
above n 30 at para 23;
Bula
above n 31 at para
81.
[52]
By section 4 of the Refugees Act, set out above n 9.
[53]
Abdi
above n 29 at para 22.
[54]
Bula
above n 31 at paras 75-6.
[55]
Id at para 76.
[56]
Id at para 80.
[57]
Set out in regulation 2(2) of the Refugee Regulations.  See
above n 47.
[58]
Section 8(1) of the Refugees Act empowers the Director-General of
Home Affairs to establish as many Refugee Reception Offices
as he or
she, after consultation with the Standing Committee, regards as
necessary for the purposes of the statute.
[59]
Ersumo
above n 32 at para 17.
[60]
See the facts set out in the High Court judgment and the Supreme
Court of Appeal judgment above n 5.
[61]
Bula
above n 31 at para 74;
Ersumo
above n 32 at paras
13-6.
[62]
Supreme Court of Appeal judgment above n 5 at para 27.
[63]
Abdi
above n 29;
Arse
above n 30;
Bula
above n
31;
Ersumo
above n 32.
[64]
Supreme Court of Appeal judgment above n 5 at para 31.
[65]
See general facts set out in
Bula
above n 31.
[66]
Id at para 75.
[67]
Turnbull-Jackson v Hibiscus Coast Municipality
[2014] ZACC
24
;
2014 (6) SA 592
(CC);
2014 (11) BCLR 1310
(CC) at para 57.
[68]
True Motives 84 (Pty) Ltd v Mahdi
[2009] ZASCA 4
;
2009 (4) SA
153
(SCA) at para 100, quoted and endorsed by this Court in
Turnbull-Jackson
id at para 55.
[69]
Section 1(c) of the Constitution states that the Republic of South
Africa is founded on values including—
“Supremacy of the Constitution and the rule of law”.
[70]
See
Camps Bay Ratepayers and Residents Association v Harrison
[2010] ZACC 19
;
2011 (4) SA 42
(CC);
2011 (2) BCLR 121
(CC) at para
28.
[71]
Saidi
above n 36;
Ahmed
above n 36;
Khosa v
Minister of Social Development; Mahlaule v Minister of Social
Development
[2004] ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR
569
(CC);
Union of Refugee Women v Director: Private Security
Industry Regulatory Authority
[2006] ZACC 23
;
2007 (4) SA 395
(CC);
2007 (4) BCLR 339
(CC);
Gavric v Refugee Status
Determination Officer Cape Town (People Against Suppression
Suffering Oppression and Poverty as Amicus
Curiae)
[2018] ZACC
38.
[72]
Article 33 of the
United Nations Convention Relating to the
Status of Refugees
, 28 July 1951, UNTS, Volume 189 at
137.
[73]
UN General Assembly,
Universal Declaration of Human Rights
,
GA Res. 217A (III), UNGAOR, 3rd Session Supp. No. 13, UN Doc. A/810,
10 December 1948, article 14, which reads:
“1. Everyone has the right to seek and to enjoy in other
countries asylum from persecution.
2. This right may not be invoked in the case of prosecutions
genuinely arising from non-political crimes or from acts contrary
to
the purposes and principles of the United Nations.”
[74]
Above n 73.  Article 33, headed “Prohibition of expulsion
or return (‘
refoulement
’)” provides:
“1. No Contracting State shall expel or return (‘
refouler
’)
a refugee in any manner whatsoever to the frontiers of territories
where his life or freedom would be threatened on account
of his
race, religion, nationality, membership of a particular social group
or political opinion.
2. The benefit of the present provision may not, however, be claimed
by a refugee whom there are reasonable grounds for regarding
as a
danger to the security of the country in which he is, or who, having
been convicted by a final judgement of a particularly
serious crime,
constitutes a danger to the community of that country.”
[75]
See United Nations Treaty Series Depository Records
with respect to the Convention Relating
to the Status of Refugees of
1951, available at
https://treaties.un.org/pages/ViewDetailsII.aspx?src=TREATY&mtdsg_no=V-2&chapter=5&Temp=mtdsg2&clang=_en
.
See also See United Nations Treaty Series Depository Records
with respect to the 1967 Protocol
to the Convention Relating to the
Status of Refugees, available at
https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=V-5&chapter=5&lang=en.
[76]
Pertinent to the customary international law status of the
principle, on 13 December 2001, States Parties to the
1951 Convention
and its 1967 Protocol (South Africa included)
adopted a declaration that reaffirmed the significance of the two
instruments.
The declaration called for universal adherence to
the rules set out in the instruments, noting that “the
continuing relevance
and resilience of this international regime of
rights and principles, including its core, the principle of
non-refoulement
, whose applicability is embedded in customary
international law”.  UNHCR,
Declaration of States
Parties to the 1951 Convention and / or its 1967 Protocol relating
to the Status of Refugees
, UN Doc. HCR/MMSP/2001/09 (16 January
2002) at para 4.
As of 2018, only 16
out of the 193 UN Member States are not bound by any universal
treaty obligation to respect
non-refoulement
(meaning
countries that have not yet ratified any international or regional
treaty embodying the principle of
non-refoulement
–
including the 1951 Convention, International Covenant on Civil and
Political Rights, Convention Against Torture, Convention
on the
Rights of the Child, Organisation of African Unity Convention
Governing the Specific Aspects of Refugee Problems in Africa,

European Convention on Human Rights, and Inter-American
Convention on Human Rights, among others.  As of 2003, over
125
countries had incorporated the principle into domestic law.
See Lauterpacht and Bethlehem,
The Scope and Content of the
Principle of Non-refoulement: Opinion
, Cambridge University
Press, 2003 at paras 217-53.
Other authorities
indicating that
non-refoulement
has obtained status as
customary international law include: UNHCR,
The Principle of
Non-Refoulement as a Norm of Customary International Law: Response
to the Questions Posed to UNHCR by the Federal
Constitutional Court
of the Federal Republic of Germany
, 31 January 1994 at para
5; Lauterpacht and Bethlehem,
The Scope and Content of the
Principle of Non refoulement: Opinion
, Cambridge University
Press, 2003 at para 253;
R (European Roma Rights Centre) v
Immigration Officer at Prague Airport
[2005] 2 AC 1
(House of
Lords); Zimmermann et al.,
Commentary on the 1951 Convention
Relating to the Status of Refugees Status and its 1967 Protocol
,
Oxford University Press, 2001 at 1343-6.
[77]
See UN General Assembly,
Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment
, 1465 UNTS,
85, 10 December 1984.  Article 3 of the Convention Against
Torture (CAT) provides:
“1. No State Party shall expel, return (‘
refouler
’)
or extradite a person to another State where there are substantial
grounds for believing that he would be in danger of
being subjected
to torture.
2. For the purpose of determining whether there are such grounds,
the competent authorities shall take into account all relevant

considerations including, where applicable, the existence in the
State concerned of a consistent pattern of gross, flagrant or
mass
violations of human rights.”
South Africa became
a State Party to the CAT on 10 December 1998, see
UN Treaty Series Depository Records
with respect
to the Convention Against
Torture, available at
https://treaties.un.org/pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-9&chapter=4&clang=_en
.
See also UN General
Assembly,
International Covenant on Civil and Political Rights
,
999 UNTS, 171, 16 December 1966.  Article 7 of the
International Covenant on Civil and Political Rights (ICCPR)

provides:
“No one shall be subject to torture or to cruel, inhuman or
degrading treatment or punishment.”
This article has
been interpreted implicitly to include prohibition of
refoulement
.
Read together with article 2(1) of the ICCPR, it is considered
to provide broader scope than CAT.  (UN Human
Rights Committee,
General Comment No. 31
(2004), UN Doc. HRI/GEN/Rev.8 at para
12.)  South Africa became a State Party to the ICCPR on 10
December 1998, see UN Treaty
Series Depository Records, available at
https://treaties.un.org/Pages/ViewDetails.aspx?chapter=4&clang=_en&mtdsg_no=IV-4&src=IND
.
[78]
The UNHCR has emphasised “the fundamental importance of the
principle of
non-refoulemen
t . . . irrespective of whether or
not individuals have been formally recognised as refugees”.
This has also been
reaffirmed by the UN General Assembly.  See
UNHCR, Executive Committee Conclusion No. 6 (1977); see also
Executive Committee
Conclusions No. 79 (1996), No. 81 (1997) and No.
82 (1997).  See also UN General Assembly,
On the Office of
the UN High Commissioner for Refugees
, UN Doc. A/RES/52/103,
12 December 1998 at para 5.
[79]
Section 1 of the Refugees Act defines “refugee” as “any
person who has been granted asylum in terms of this
Act”.
[80]
See
Saidi
above n 36;
R v Secretary of State for the Home
Department, ex parte Sivakumaran
[1987] UKHL 1
;
[1988] AC 958
;
[1988] 1 All ER
193
;
[1988] 2 WLR 92
;
R v Uxbridge Magistrates Court, ex parte
Adimi
[1999] EWHC Admin 765; [2001] QB 667.
[81]
See Organisation of African Unity,
Convention Governing the
Specific Aspects of Refugee Problems in Africa
, 10 September
1969, 1001 UNTS 45.  Three particular features of the
protection afforded by section 2 indicate its broader,
Organisation
of African Unity-inspired, ambit.
First, section 2
and the 1969 Organisation of African Unity Convention expanded the
definition of “refugee” to include
those whose 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 (read articles 1(2)
and 2 of the 1969
Organisation of African Unity Convention together).  These are
not covered in the 1951 Convention.
Second, section 2
and the 1969 Convention, regarding only the expanded definition of
“refugees” (
namely section 2(b) of
the Refugees Act and article 1(2) and 2(3) of the 1969 Convention)
,
do not require proof of “persecution”, but merely
threats to “life, physical safety or freedom”.
Third, on the
measures of
refouler
, section 2 and the 1969 Convention
include refusal of entry, expulsion, extradition, return, or other
similar measures, while
the 1951 Convention lists solely “expel
or return”.
[82]
Id.  Article 1 of the Organisation of African Unity Convention
provides:
“1. For the purposes of this Convention, the term ‘refugee’
shall mean every person who, owing to well-founded
fear of being
persecuted for reasons of race, religion, nationality, membership of
a particular social group or political opinion,
is outside the
country of his 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.
2. The term ‘refugee’ shall also apply to every person
who, owing to external aggression, occupation, foreign domination
or
events seriously disturbing public order in either part or the whole
of his country of origin or nationality, is compelled
to leave his
place of habitual residence in order to seek refuge in another place
outside his country of origin or nationality.”
Article 2(3)
provides:
“No person shall be subjected by a Member State to measures
such as rejection at the frontier, return or expulsion, which
would
compel him to return to or remain in a territory where his life,
physical integrity or liberty would be threatened for
the reasons
set out in [a]rticle I, paragraphs 1 and 2.”
[83]
Section 233 of the Constitution provides:
“When interpreting any legislation, every court must prefer
any reasonable interpretation of the legislation that is consistent

with international law over any alternative interpretation that is
inconsistent with international law.”
[84]
Section 232 of the Constitution provides:
“Customary international law is law in the Republic unless it
is inconsistent with the Constitution or an Act of Parliament.”
[85]
Section 39(1) of the Bill of Rights provides:
“When interpreting the Bill of Rights, a court, tribunal or
forum—
(a) must promote the values that underlie an open and democratic
society based on human dignity, equality and freedom;
(b) must consider international law; and
(c) may consider foreign law.”
[86]
Also significant is Article 12(3) of the African Charter of Human
and People’s Rights.  This specifies that:
“Every individual shall have the right, when persecuted, to
seek and obtain asylum in other countries in accordance with
the law
of those countries and international conventions.”
[87]
Saidi
above n 36 at paras 27-8.
[88]
See
Abdi
above n 29 at para 22 fn 3;
Arse
above n 30
at para 14.
[89]
Set out above n 13.
[90]
The width of the protection section 2 envisages may be noted.
It provides that “no person” falling within its
terms
may be refused entry to the country or be compelled to return to
their country, which is wider than providing this protection
only to
asylum seekers (defined as persons seeking recognition as a refugee
in the Republic) or refugees (defined as persons
who have been
granted asylum in terms of the Refugees Act).  Though, in
practice, the differentiation will disappear since
persons
qualifying under section 2 will also be asylum seekers, or attain
statutory refugee status, the breadth of the statute’s

intended embrace is undeniable.
[91]
Section 1 of the Immigration Act defines “visa” as—
“the authority to temporarily sojourn in the Republic for
purposes of—
(a) transit through the Republic as contemplated in section 10B;
(b) a visit as contemplated in section 11;
(c) study as contemplated in section 13;
(d) conducting activities in the Republic in terms of an
international agreement to which the Republic is a party as
contemplated
in section 14;
(e) establishing or investing in a business as contemplated in
section 15;
(f) working as a crew member of a conveyance in the Republic as
contemplated in section 16;
(g) obtaining medical treatment as contemplated in section 17;
(h) staying with a relative as contemplated in section 18;
(i) working as contemplated in section 19 or 21;
(j) retirement as contemplated in section 20;
(k) an exchange programme as contemplated in section 22; or
(l) applying for asylum as contemplated in section 23,
whichever is applicable in the circumstances;
‘work’ includes—
(a) conducting any activity normally associated with the running of
a specific business; or
(b) being employed or conducting activities consistent with being
employed or consistent with the profession of the person, with
or
without remuneration or reward, within the Republic.”.
[92]
Section 10(l) of the Immigration Act provides: “Upon
admission, a foreigner, who is not a holder of a permanent residence

permit, may enter and sojourn in the Republic only if in possession
of a visa issued by the Director-General for a prescribed
period.”
[93]
Section 23 of the Immigration Act provides:
“(1) The Director-General may, subject to the prescribed
procedure under which an asylum transit visa may be granted, issue

an asylum transit visa to a person who at a port of entry claims to
be an asylum seeker, valid for a period of five days only,
to travel
to the nearest Refugee Reception Office in order to apply for
asylum.
(2) Despite anything contained in any other law, when the visa
contemplated in subsection (1) expires before the holder reports
in
person at a Refugee Reception Office in order to apply for asylum in
terms of section 21 of the Refugees Act, 1998 (Act No.
130 of 1998),
the holder of that visa shall become an illegal foreigner and be
dealt with in accordance with this Act.”
[94]
Section 32(1) of the Immigration Act provides:
“Any illegal foreigner shall depart, unless authorised by the
Director-General in the prescribed manner to remain in the
Republic
pending his or her application for a status.”
[95]
Section 34 of the Immigration Act, in relevant part, provides:
“(1) Without the need for a warrant, an immigration officer
may arrest an illegal foreigner or cause him or her to be arrested,

and shall, irrespective of whether such foreigner is arrested,
deport him or her or cause him or her to be deported and may,

pending his or her deportation, detain him or her or cause him or
her to be detained in a manner and at a place determined by
the
Director-General, provided that the foreigner concerned—
(a) shall be notified in writing of the decision to deport him or
her and of his or her right to appeal such decision in terms
of this
Act;
(b) may at any time request any officer attending to him or her that
his or her detention for the purpose of deportation be confirmed
by
warrant of a Court, which, if not issued within 48 hours of such
request, shall cause the immediate release of such foreigner;
(c) shall be informed upon arrest or immediately thereafter of the
rights set out in the preceding two paragraphs, when possible,

practicable and available in a language that he or she understands;
(d) may not be held in detention for longer than 30 calendar days
without a warrant of a Court which on good and reasonable grounds

may extend such detention for an adequate period not exceeding 90
calendar days, and
(e) shall be held in detention in compliance with minimum prescribed
standards protecting his or her dignity and relevant human
rights.
(2) The detention of a person in terms of this Act elsewhere than on
a ship and for purposes other than his or her deportation
shall not
exceed 48 hours from his or her arrest or the time at which such
person was taken into custody for examination or other
purposes,
provided that if such period expires on a non-court day it shall be
extended to [16h00] of the first following court
day.
(3) The Director-General may order a foreigner subject to
deportation to deposit a sum sufficient to cover in whole or in part

the expenses related to his or her deportation, detention,
maintenance and custody and an officer may in the prescribed manner

enforce payment of such deposit.
(4) Any person who fails to comply with an order made in terms of
subsection (3) shall be guilty of an offence and liable on

conviction to a fine not exceeding R20 000 or to imprisonment not
exceeding 12 months.
(5) Any person other than a citizen or a permanent resident who
having been—
(a) removed from the Republic or while being subject to an order
issued under a law to leave the Republic, returns thereto without

lawful authority or fails to comply with such order; or
(b) refused admission, whether before or after the commencement of
this Act, has entered the Republic, shall be guilty of an
offence
and liable on conviction to a fine or to imprisonment for a period
not exceeding 12 months and may, if not already
in detention,
be arrested without warrant and deported under a warrant issued by a
Court and, pending his or her removal, be
detained in the manner and
at the place determined by the Director-General.
(6) Any illegal foreigner convicted and sentenced under this Act may
be deported before the expiration of his or her sentence
and his or
her imprisonment shall terminate at that time.
(7) On the basis of a warrant for the removal or release of a
detained illegal foreigner, the person in charge of the prison

concerned shall deliver such foreigner to that immigration officer
or police officer bearing such warrant, and if such foreigner
is not
released he or she shall be deemed to be in lawful custody while in
the custody of the immigration officer or police officer
bearing
such warrant.”
[96]
The Immigration Act makes provision for an immigration officer’s
determination that someone is an illegal foreigner
may be taken
on review to the Director-General or the Minister.
Section 8 provides:
“(1) An immigration officer who refuses entry to any person or
finds any person to be an illegal foreigner shall inform
that person
on the prescribed form that he or she may in writing request the
Minister to review that decision and—
(a) if he or she arrived by means of a conveyance which is on the
point of departing and is not to call at any other port of
entry in
the Republic, that request shall without delay be submitted to the
Minister; or
(b) in any other case than the one provided for in paragraph (a),
that request shall be submitted to the Minister within three
days
after that decision.
(2) A person who was refused entry or was found to be an illegal
foreigner and who has requested a review of such a decision—
(a) in a case contemplated in subsection (1)(a), and who has not
received an answer to his or her request by the time the relevant

conveyance departs, shall depart on that conveyance and shall await
the outcome of the review outside the Republic; or
(b) in a case contemplated in subsection (1)(b), shall not be
removed from the Republic before the Minister has confirmed the

relevant decision.
(3) Any decision in terms of this Act, other than a decision
contemplated in subsection (1), that materially and adversely

affects the rights of any person, shall be communicated to that
person in the prescribed manner and shall be accompanied by the

reasons for that decision.
(4) An applicant aggrieved by a decision contemplated in subsection
(3) may, within 10 working days from receipt of the notification

contemplated in subsection (3), make an application in the
prescribed manner to the Director-General for the review or appeal

of that decision.
(5) The Director-General shall consider the application contemplated
in subsection (4), whereafter he or she shall either confirm,

reverse or modify that decision.
(6) An applicant aggrieved by a decision of the Director-General
contemplated in subsection (5) may, within 10 working days of

receipt of that decision, make an application in the prescribed
manner to the Minister for the review or appeal of that decision.
(7) The Minister shall consider the application contemplated in
subsection (6), whereafter he or she shall either confirm, reverse

or modify that decision.
Seemingly, the
right to review a decision of the Director-General, which is
conferred on applicants by section 8(4), only
applies to
decisions other than the decision which finds that a person is an
illegal foreigner as contemplated in section 8(1).
[97]
Section 31 of the Immigration Act, headed “Exemptions”,
provides for those who are not illegal foreigners (section 31(1)),

ministerial exemptions (section 31(2)) and for statutory exemptions
(section 31(3)).  Section 31(2) reads:
“Upon application, the Minister may under terms and conditions
determined by him or her—
(a) allow a distinguished visitor and certain members of his or her
immediate family and members in his or her employ or of his
or her
household to be admitted to and sojourn in the Republic, provided
that such foreigners do not intend to reside in the
Republic
permanently;
(b) grant a foreigner or a category of foreigners the rights of
permanent residence for a specified or unspecified period when

special circumstances exist which would justify such a decision:
Provided that the Minister may—
(i) exclude one or more identified foreigners from such categories;
and
(ii) for good cause, withdraw such rights from a foreigner or a
category of foreigners;
(c) for good cause, waive any prescribed requirement or form; and
(d) for good cause, withdraw an exemption granted by him or her in
terms of this section.”
[98]
Section 21(3) of the Bill of Rights provides:
“Every citizen has the right to enter, to remain in and to
reside anywhere in, the Republic.”
[99]
The Immigration Act regulates entry to South Africa by requiring
entry at a designated port of entry, following which a temporary

visa in terms of section 10(2)(l) of that statute is issued allowing
time to apply for asylum.
[100]
Ahmed
above n 36 at paras 39-40 and 58-61.
[101]
See above n 2 for the definition of “illegal foreigner”.
[102]
Section 3(a)
of the
Refugees Act.
[103]
Section 3(b)
of the
Refugees Act.  Section
3 in its entirety
provides:
“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, 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 paragraph (a) or
(b).”
[104]
Section 4
of the
Refugees Act above
n 9.
[105]
Section 5 of the Refugees Act provides:
“(1) A person ceases to qualify for refugee status for the
purposes of this Act if—
(a) he or she voluntarily re-avails himself or herself of the
protection of the country of his or her nationality; or
(b) having lost his or her nationality, he or she by some voluntary
and formal act reacquires it; or
(c) he or she becomes a citizen of the Republic or acquires the
nationality of some other country and enjoys the protection of
the
country of his or her new nationality; or
(d) he or she voluntarily re-establishes himself or herself in the
country which he or she left; or
(e) he or she can no longer continue to refuse to avail himself or
herself of the protection of the country of his or her nationality

because the circumstances in connection with which he or she has
been recognised as a refugee have ceased to exist and no other

circumstances have arisen which justify his or her continued
recognition as a refugee.
(2) Subsection (1)(e) does not apply to a refugee who is able to
invoke compelling reasons arising out of previous persecution
for
refusing to avail himself or herself of the protection of the
country of nationality.
(3) The refugee status of a person who ceases to qualify for it in
terms of subsection (1) may be withdrawn in terms of section
36.”
[106]
Section 22(6)(b)
of the
Refugees Act provides
:
“The Minister may at any time withdraw an asylum seeker permit
if—
. . .
(b) the application for asylum has been found to be manifestly
unfounded, abusive or fraudulent.”
[107]
Section 23
of the
Refugees Act provides
:
“If the Minister has withdrawn an asylum seeker permit in
terms of
section 22(6)
, he or she may, subject to
section 29
, cause
the holder to be arrested and detained pending the finalisation of
the application for asylum, in the manner and place
determined by
him or her with due regard to human dignity.”
[108]
Section 24(3)
of the
Refugees Act provides
:
“The Refugee Status Determination Officer must at the
conclusion of the hearing—
(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.”
[109]
See above n 2.
[110]
See
Arse
above n 30 at para 19.
[111]
Id.
[112]
As van Heerden JA explained in the former Appellate Division, now
the Supreme Court of Appeal, in
Khumalo v Director-General of
Co-operation and Development
[1990] ZASCA 118
;
1991 (1) SA 158
(A) at 165E:
“[I]n the absence of an express repeal, there is a presumption
that a later general enactment was not intended to effect
a repeal
of a conflicting earlier and special enactment.  This
presumption falls away, however, if there are clear indications
that
the Legislature none the less intended to repeal the earlier
enactment.  This is the case when it is evident that the
later
enactment was meant to cover, without exception, the whole field or
subject to which it relates.”
[113]
This is despite the fact that the Aliens Control Act 96 of 1991, a
pre-constitutional enactment, predated both the
Refugees Act and
the
Immigration Act.  The later
Refugees Act is
explicit in its
pre-eminence, thus overriding the earlier Act.
[114]
Similarly, in a recent challenge against the “asylum ban”
imposed by the President of the United States of America,
the Ninth
Circuit Court of the United States in
East Bay Sanctuary Covenant
v Donald Trump
No. 18 17274 (9th Cir. 2018)
at 14, 16, 17, 43 and 45 correctly noted the appropriate manner in
which this issue can be dealt with:
“Our asylum law has its roots in the 1951 Convention Relating
to the Status of Refugees . . . and the 1967 Protocol Relating
to
the Status of Refugees . . . .  The United States was an
original signatory to both treaties and promptly ratified both.
. . .
The Refugee Act of 1980 directed the Attorney General to accept
asylum applications from any alien ‘physically present
in the
United States or at a land border or port of entry, irrespective of
such alien’s status.’  . . . it currently
provides
that ‘[a]ny alien who is physically present in the United
States or who arrives in the United States (whether
or not at a
designated port of arrival and including an alien who is brought to
the United States after having been interdicted
in international or
United States waters), irrespective of such alien’s status,
may apply for asylum.’
. . .
If the Attorney General had adopted a rule that made aliens outside
a ‘designated port of arrival’ ineligible to
apply for
asylum, the rule would contradict § 1158(a)(1)’s
provision that an alien may apply for asylum ‘whether
or not
[the alien arrives through] a designated port of arrival’.
Such a rule would be, quite obviously, ‘not
in
accordance with law.’  . . . ‘[A]n agency’s
authority to promulgate categorical rules is limited by
clear
congressional intent to the contrary.’
. . .
As the district court observed, ‘[t]o say that one may apply
for something that one has no right to receive is to render
the
right to apply a dead letter.’  We agree.  . . .
(‘[I]n order to be valid [regulations] must be consistent
with
the statute under which they are promulgated.’)”
(Footnotes omitted.)
[115]
Section 21
of the
Refugees Act.
[116
]
Section 24
of the
Refugees Act.
[117]
Section 8 of the Immigration Act.
[118]
Section 21(2)
of the
Refugees Act.
[119
]
Jeebhai v Minister of Home Affairs
[2009] ZASCA 35
;
2009 (5)
SA 54
(SCA) at para 25.
[120]
Section 34(1) of the Immigration Act.
[121]
Jeebhai
above n 119 at para 25.
[122]
Ahmed
above n 36 at paras 58-9.
[123]
Union of Refugee Women
above n 71 at paras 28-9.
[124]
Ahmed
above n 36 at para 22.
[125]
Id at para 34.
[126]
Section 23 of the Immigration Act.
[127]
In
Ersumo
above n 32, the asylum seeker entered through a
port of entry and obtained an asylum transit permit, at para 2.
In
Bula
above n 32 at para 4, 19 asylum seekers crossed the
South Africa / Mozambique border on foot without being discovered by
border
inspection.  In
Arse
above n 31 at paras 2-3, the
asylum seeker entered through a port of entry and obtained a permit,
and did not apply until the
permit expired.  In
Abdi
above n 30 at para 4, the asylum seeker and refugee attempted to
enter the Republic at an airport an official port of entry,
but they
were denied entry.
[128]
Zimmermann et al
The 1951 Convention Relating to the Status of
Refugees and Its 1967 Protocol: A Commentary
Oxford University
Press, 2001at 324–35.
[129]
See section 31 of the Immigration Act.
[130]
Kumah
above n 16.
[131]
High Court judgment above n 5 at paras 7-8.
[132]
Supreme Court of Appeal judgment above n 5 at paras 44-6.
[133]
Article 1(F)(b) of the 1951 Convention above n 73 and article
1(5)(b) of the Organisation of African Unity Convention above n
82.
[134]
Ahmed
above n 36.
[135]
Kumah
above n 16.
[136]
S v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6)
BCLR 665
(CC) at paras 229-30.
[137]
Mohamed v President of the Republic of South Africa
[2001]
ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC) at paras
69-72
.
[138]
Minister of Home Affairs v Tsebe; Minister of Justice and
Constitutional Development v Tsebe
[2012] ZACC 16
;
2012 (5) SA
467
(CC);
2012 (10) BCLR 1017
(CC) at paras 43 and 65.