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, that made him an “illegal foreigner” liable to criminal penalties and to deportation.  Some 15 months later, in March 2016, after travails that do not require recounting here, 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.  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, but were rejected in the Supreme Court of Appeal, which by a majority reversed the High Court decision in his favour.  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, 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.  The Court considered that section 2 of the Refugees Act 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 lay with the Refugee Status Determination Officer.  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 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 embraced the approach in Kumah.  There the High Court expressed “great concern” that the Refugees Act is being abused, holding that the statute does not permit applicants for asylum to apply “whenever it may take their fancy”.

[6]	The dissentient in the Supreme Court of Appeal 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.  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.  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.

[9]	In Sebola, the bank had expressly abandoned the judgment sought to be overturned and tendered the relief the applicants sought.  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.  Similarly, in Children’s Institute, the Court granted a declaratory order regarding appearance of amici curiae in the High Court, 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.  The issues his application raises affect many people.  South Africa is by international standards very heavily burdened by asylum seekers.  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, Arse, Bula and Ersumo, 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 and human dignity and indeed of life – are at stake.  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.

[13]	It is to be noted that the Refugees Act has been changed.  Amendments were adopted that have been signed into law though not yet brought into effect.  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, 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.  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); ordered the release from detention of an asylum seeker whose asylum transit permit had expired, and whose application for asylum had been rejected by the Refugee Status Determination Officer but whose appeal before the Refugee Appeal Board was pending (Arse); 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 (Bula); 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, that the truth or falsity of an applicant’s story is to be determined (Ersumo).

[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.  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 are given every reasonable opportunity to apply (Abdi).  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.  The “every reasonable opportunity”, at any stage, standard of Abdi was reaffirmed.  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).  A later contention by the Department, that undue delay deprived one seeking to apply for asylum of the right to be issued with a 14-day permit within which to approach a Refugee Reception Office, was rejected as having “no warrant” (Ersumo).

[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, 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.  These decisions could not be ignored.

[20]	The question before the Court was thus not, as the majority purported to find, whether Mr Ruta had delayed unreasonably, since the significance of delay had already been eviscerated by that Court’s previous decisions.  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, the facts in Bula 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.  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.  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.  This is because it is intrinsically functional to the rule of law, which in turn is foundational to the Constitution.  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.

[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, 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.

[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”.  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).  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.  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 and is considered part of international human rights law.  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).  The latter the Refugees Act defines as “refugees”.  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.

[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 is derived from our own continent – the Organisation of African Unity Convention Governing the Specific Aspects of Refugee Status in Africa.

[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.  And it provides that customary international law “is” law in the Republic unless it is inconsistent with the Constitution or a statute.  And, of course, section 39(1)(b) requires us to consider international law when interpreting the Bill of Rights.

[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.  This Court recently underscored the central importance of the provision.  Other courts have done the same.  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.  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.

[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” and the provision for a visa to temporarily sojourn in the Republic.  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”.

[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, in the form of detention and deportation.

[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.  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.

[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.  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, which, as this Court recognised in Ahmed, 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.  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”, or, in the case of external disruption, the asylum seeker must have left his or her habitual residence under compulsion.  The statute spells out prominent exclusions from refugee status.  In addition, it specifies precisely when refugee status ceases.  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.  An asylum seeker whose permit is withdrawn may be arrested and detained.  And, finally, a Refugee Status Determination Officer “must” reject an application for asylum if it is “manifestly unfounded, abusive or fraudulent”.

[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, the Refugees Act, and that statute alone, determines who may seek asylum and who is entitled to refugee status.

[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.  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).

[43]	The Refugees Act makes plain principled provision for the reception and management of asylum seeker applications.  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.

[44]	Moreover, in entrusting the processing of asylum applications to Refugee Reception Officers and the determination of refugee status to Refugee Status Determination Officers 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 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.  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.

[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.  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.

[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.

[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 and recently reaffirmed in Ahmed 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.  To this category it affords entitlement to an asylum transit visa.  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.

[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.  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, 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, 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 and the dissent in the Supreme Court of Appeal 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.  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.  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, the system is open to abuse, with the ever-present risk of adverse public sentiment.

[59]	Yet, as in Makwanyane and Mohamed and Tsebe, 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:

For the Respondent:

S Budlender and L Letsebe instructed by Lawyers for Human Rights

G Bofilatos SC instructed by the State Attorney