SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case No: 30/2017
In the matter between:

THE MINISTER OF HOME AFFAIRS
APPELLANT

and

ALEX RUTA
RESPONDENT

Neutral citation:   The Minister of Home Affairs v Ruta (30/2017) [2017]
ZASCA 186 (13 December 2017)
Coram:
Bosielo, Seriti, Willis and Mocumie JJA and Schippers AJA
Heard:
7 November 2017

Delivered: 13 December 2017
Summary: Refugees Act 130 of 1998 – ss 21 and 22 – contravention of
ss 9 and 49(i) of the Immigration Act 13 of 2002 – respondent found in
possession of fraudulent asylum seeker permit and failure on his part to
apply for asylum without delay – respondent not entitled to rely on
protection afforded by Refugees Act – appeal upheld - appellant entitled
to deal with respondent in terms of the provisions of ss 32 and 34 of the
Immigration Act.

________
ORDER

___
On appeal from: Gauteng Division, Pretoria (Tuchten J sitting as court
of first instance):
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced with the
following:
'(a) The application is dismissed.
(b) No order as to costs.'

___
JUDGMENT

___

Seriti JA (Bosielo, Willis JJA and Schippers AJA concurring):

[1] This is an appeal against the decision of the Gauteng Division of
the High Court, Pretoria (Tuchten J) granting an order for the immediate
release of the respondent who was detained at Lindela Repatriation
Facility pending his deportation to Rwanda.

[2] The order granted by the court a quo reads as follows:
'1. The respondents are directed to release the applicant forthwith.
2. Directing that the applicant be afforded 5 days from the order being granted, to
present himself at a Refugee Reception Office to apply for asylum in terms of section
21 of the Refugees Act.

3. Directing the first and second respondents to renew the applicant’s temporary
asylum seeker permit in terms of section 22(1) of the Refugees Act 130 of 1998,
pending the finalisation of his claim, more specifically the exhaustion of his rights of
either appeal or review in terms of Chapter 4 of the Refugee Act 130 of 1998 and the

Promotion of Administrative Justice Act.'

[3] The main issue in this appeal is what may be expected of an
asylum seeker in the Republic in order to enjoy the protection afforded
under section 21 of the Regufees Act.

[4] The respondent, a Rwandan national alleges that he was employed
as a soldier in the Rwandan army. Between 1993 and 1994 he was
promoted to the rank of a sergeant and second lieutenant of the army
respectively. In 1998 he was promoted to the rank of lieutenant working
in the Division of Military Intelligence. In 2000 he commenced
employment with the civilians for the Republican Guards in the National
Security Services (NSS) of Rwanda and became an agent of the NSS.

[5] In October 2014 he was approached by his superior in Rwanda
who instructed him to travel to South Africa to engage with the Rwanda
National Congress (the RNC) members. The RNC is an exiled Rwandan
opposition party which has offices in South Africa. The following day he
was presented with a passport and documents to facilitate his journey to
South Africa. At the time he did not know what he was coming to do in
South Africa and as an NSS agent, he was merely following instructions.

[6] He left Rwanda at the end of October 2014 and travelled to
Tanzania where he met another NSS agent. The agent directed him to
proceed further to Zimbabwe where he would be met by another NSS
agent. He proceeded to Zimbabwe via Zambia and on his arrival in
Zimbabwe he met another NSS agent who facilitated his transit to South
Africa. This latter agent advised him that it was difficult to cross from
Zimbabwe into South Africa without the required visa. Together with the

agent, they travelled to Mozambique so that they could enter South Africa
via Mozambique. On arrival in Mozambique, they were informed that it
will be easier to cross into South Africa, without a visa from Zimbabwe
during the festive season. They went back to Zimbabwe and waited for
the festive season. In December 2014 he crossed into South Africa from
Zimbabwe.

[7] On arrival in South Africa, he met another person who was
assigned by the Rwandan Government to advise him about the mission he
was to carry out in South Africa. After two days the agent instructed him
to find a channel of reaching and befriending certain identified members
of the exiled Rwandan opposition party, the RNC. He was moved to a
house in Regent Park Johannesburg and he was allocated a budget for
accommodation and living expenses.

[8] In January 2015 he met a Rwandese national (known as Harmsa)
who introduced him to the RNC party members whom he was supposed
to befriend. The men did not know who he was and that made it easy for
him to befriend them. During the first week of February 2015 he went
back to the NSS agent and advised him that he succeeded in befriending
identified RNC party members. The NSS agent then told him that they
will organise a firearm for him. He then realised that this meant that he
had to kill a member of the RNC party. He panicked and started avoiding
contact with the agent as he did not want to kill any members of the RNC
party.

[9] During February 2015 he approached the Directorate for Priority
Crime Investigations (the Hawks) and alerted them about the mission he

was instructed to carry out. The Hawks reacted by advising him that he
would be put under their Witness Protection Unit because his case was
high profile. A few weeks after reporting the matter to the Hawks, the
house which he occupied at Regent Park was attacked by unknown
gunmen who fired gunshots at the house. The police came to the house to
investigate and then alerted the Hawks.

[10] He approached the Hawks on 17 March 2016, a day after the
alleged shooting took place at his home in Regent Park and signed the
'Placing Under Temporary Protection in terms of section 8 of The
Witness Protection Act 112 of 1998' form. From 19 March 2015 onwards
he was then placed at a safe house in Pretoria under the protection of
Colonel Mohlamme of the Hawks. He further alleged that in March 2015
he was taken to the Refugee Reception Office (RRO) in Marabastad by
Colonel Mohlamme to apply for asylum. On arrival at the Marabastad
RRO they were informed that his application could not be processed
because the system was down. Colonel Mohlamme informed him that
they would return to the RRO on 25 March 2015.

[11] On 25 March 2015 a certain Paul of the National Prosecuting
Authority (NPA) came to him where he was staying in Pretoria and
informed him that they were moving him to Durban. He informed Paul
that he had an appointment at the Marabastad RRO to apply for asylum.
Paul told him that the application would be made at the Durban RRO.

[12] On arrival in Durban he was handed over to a certain Bernard who
placed him in a hotel. Bernard informed him that he would take him to
the RRO at a later stage but failed to do so.  After three months in Durban
he was moved back to Pretoria and handed over to Paul who took him to

a safe house where he was handed over to one Solly of the NPA. The
respondent informed Solly about his desire to apply for asylum. Solly
also failed to assist him.

[13] Later Solly advised him to look for a job because the monthly
allowance that the NPA was giving him whilst in its protective custody
was insufficient for his sustenance. He then began searching for a job and
later received a job offer from a local pizzeria restaurant. He further
alleged that he informed Solly about the job offer including the fact that
the offer might be jeopardised by the fact that he does not have the
relevant immigration documents. Solly then asked him for the details of
the manager of the restaurant so that he could contact the said manager
and explain to him the position of the respondent. After Solly spoke to the
manager of the restaurant, the manager no longer asked the respondent
about the permit. However, a few days later the manager asked the
respondent to provide him with his identity photo and thereafter the
manager provided him with an asylum seeker permit.

[14]  On 19 March 2016 the respondent was arrested and charged with
the possession of a fraudulent permit; riding a motorbike without a
driver’s license and being an illegal foreigner.

[15] In its answering affidavit the appellant, amongst others, denied that
the respondent was ever taken by Colonel Mohlamme to the RRO. The
appellant further denied that Paul, Bernard and Solly ever discussed with
the respondent the question of his desire to go to the RRO or to take him
to the RRO in order to apply for an asylum seeker’s permit. The appellant
further denied that Solly ever advised the respondent to look for a job.
The appellant stated further that the respondent failed to disclose to the

authorities that he secured employment. In this regard, the principles
governing disputes of fact in motion proceedings are well-established. An
applicant who seeks final relief on motion must accept the version of his
opponent in the event of a conflict, unless the latter’s allegations do not
raise a real or bona fide dispute of fact, or are so far-fetched or clearly
untenable that the court is justified in rejecting them merely on the papers
(Plascon-Evans Paints (TVL) Ltd v Van Riebeeck Paints (Pty) Ltd [1984]
ZASCA 51; 1984 (3) SA 623 (A) at 634E-635C).

[16] As stated earlier, the respondent was arrested on 19 March 2016
after he was found to be on a public road riding a motorcycle without
having a licence and being in possession of a fraudulent Temporary
Asylum Seekers Permit. The respondent’s first appearance in court took
place on 22 March 2016. The proceedings were postponed to 4 April
2016 and he was refused bail.

[17] Prior to his arrest and on 22 December 2015 the respondent was
discharged from the Witness Protection Programme. Some of the reasons
offered for such a discharge was that he flouted some of the Witness
Protection Programme rules and he also failed to disclose to the Office
for Witness Protection the fact that he had obtained employment and was
working in South Africa without a valid work permit and had therefore
placed the integrity of the Office for the Witness Protection Programme at
risk.

[18] On 15 April 2016 the respondent’s legal representatives addressed
a letter to the Department of Home Affairs and requested that whatever
the outcome of the respondent's criminal trial, it had to be ensured that the
respondent was not deported to Rwanda pending the investigation of his

protection.
[19] On 28 July 2016 the respondent appeared in court. A plea
explanation in terms of section 112 of the Criminal Procedure Act 51 of
1977, signed by the respondent and his legal representative was handed to
the court. In the plea explanation he partly said the following:
'I confirm that I [plead] guilty voluntarily, without any undue influence and with a
sound mind.
. . . .
I was stopped by a marked metro police vehicle of which he requested my driver’s
licence of which I produced my [Rwandese] driver’s license which was not translated
in English. He further asked me if I had another one and I informed him that was the
only one I had. He requested to search me and I complied and upon the search he
found an Asylum document that was in my name. He informed me that he was
arresting me for driving a motorbike without a valid driver’s license. I was taken to
Garsfontein SAPS for detention.
I further admit that the Asylum document that was found in my possession was not
lawfully obtained of which I admit that I contravened the provisions of section
18(1)(i) of the Identification Act.'

[20] The respondent was convicted on both counts after his plea
explanation was handed to court. On count 1 he was fined an amount of
R1000 or five years' imprisonment and; in respect of count 2 he was
sentenced to six months' imprisonment half of which was suspended for
five years on condition that he was not convicted of any offence under s
18(1) of the Identification Act 68 of 1997 committed during the period of
suspension.

[21]    In a letter dated 12 September 2016 addressed by the legal
representatives of the respondent to the Department of Home Affairs, the
respondent’s legal representatives demanded that the respondent must not
be deported to Rwanda; he must be released from detention and be given

an opportunity to apply for asylum in terms of the Refugees Act. On the
other hand, the appellant was of the view that the respondent, after
serving his sentence, must be deported to Rwanda.

[22] Although convicted for possession of a fraudulent Temporary
Asylum Seeker Permit, the respondent in fact obtained two fraudulent
Temporary Asylum Seeker Permits. Both permits had the same date, ie 1
December 2015. One of the permits indicates Rwanda as his country of
origin and the other indicates the Democratic Republic of Congo as his
country of origin. There is no explanation regarding how and where he
got the Temporary Asylum Sekeer Permits. The respondent obtained the
fraudulent permits prior to his release from the Witness Protection
Programme.

[23] 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 RRO and section
21(4)(a) pertinently states:
'21  Application for asylum
. . . .
(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

. . . .'

[24] Section 32 of the Immigration Act 13 of 2002 reads as follows:
'Illegal foreigner
(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.'
Section 34 deals with the deportation and detention of illegal foreigners
and subsection 1 thereof stipulates that:
'34  Deportation and detention of illegal foreigners
(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 . . . .'

[25] Section 9 of the Immigration Act prescribes that no person shall
enter or depart from the Republic at a place other than a port of entry – it
further provides for procedures that must be followed when a person
enters the country, and also stipulates that a foreigner who is not a holder
of a permanent residence permit may only enter the Republic if her or she
is issued with a valid visa.

[26] Section 21(4) of the Refugees Act; however, provides that
‘notwithstanding any law to the contrary . . . unlawful entry into or
presence within the Republic’ may be condoned where that person has
applied for asylum under ss (1).

[27] I agree with Satchwell J when, in Kumah & others v Minister of
Home Affairs & others [2016] 4 All SA 96 (GJ) in paras 33 to 39 she
observed, after referring to Bula & others v Minister of Home Affairs &

others [2011] ZASCA 209; 2012 (4) SA 560 (SCA) and Ersumo v
Minister of Home Affairs & others [2012] ZASCA 31; 2012 (4) SA 581
(SCA), that asylum seekers who enter the Republic illegally are merely
given a reasonable opportunity but not an indefinite or unlimited period
in which to apply for that asylum. It is plain that, apart from any other
considerations, the respondent delayed unreasonably in applying for his
asylum.

[28] Section 49 of the Immigration Act deals with offences and it
provides that anyone who enters or remains in, or departs from the
Republic in contravention of this Act, shall be guilty of an offence and
liable on conviction to a fine or to imprisonment not exceeding two years.
Section 49(8) of the Immigration Act also criminalises the production of
a false certification and further mentions possible penalties in the case of
a conviction.

[29] Regulation 2 of the Refugee Regulations GN R366, GG 21075, 6
April 2000 deals with an application for asylum. Regulation 2(1)
stipulates that an application for asylum in terms of section 21 of the
Refugees Act must be lodged by the applicant in person at a designated
RRO without delay. Regulation 2(2) states that any person who entered
the Republic and is encountered in violation of the Aliens Control Act 96
of 1991, who has not submitted an application pursuant to subregulation
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
RRO to complete an asylum application.

[30] Section 23(1) of the Immigration Act underscores the requirement
that an application for asylum must be made without delay. It provides

that an asylum transit visa, which is valid for only five days, may be
issued to a person who at a port of entry claims to be an asylum seeker, to
enable him or her to travel to the nearest RRO. In terms of section 23(2),
when the asylum transit visa expires before the holder reports in person to
a RRO to apply for asylum, the holder shall become an illegal foreigner
and be dealt with in accordance with the Immigration Act.

[31] In its judgment, the court a quo relied on the judgment of this court
in Bula.  There the appellants were Ethopian nationals and they arrived in
Johannesburg on 16 June 2011. On the same day they were confronted by
the police at a house in Mayfair where their fellow Ethopian had
accommodated them. The police asked them to prove that they were
lawfully resident in South Africa. When they could not produce the
relevant documents they were detained at a police station from 16 June
2011 until 24 June 2011 and were transferred to Lindela, a holding
facility and repatriation centre. On 27 July 2011 after consulting with
their legal representatives, the latter directed a letter on their behalf to the
Department of Home Affairs in which they demanded that all deportation
proceedings against them be halted and that they be released immediately
and offered the opportunity to apply for asylum. This court then dealt
with the provisions of the Refugees Act and its regulations and in para 80
said '[i]t follows ineluctably that once an intention to apply for asylum is
evinced the protective provisions of the Act and the associated
regulations come into play and the asylum seeker is entitled as of right to
be set free subject to the provisions of the act.'

[32] The respondent’s counsel supported the approach adopted by the
court a quo and also relied on the decision in Bula supra. The facts of the
Bula decision are distinguishable from the case before us. On the facts of

this case there is no indication that the respondent had any intention of
applying for asylum prior to his arrest. On the contrary he was arrested
while driving around in an unlicensed motorbike using two fraudulently
obtained Temporary Asylum Seeker Permits. The idea of applying for
asylum came to his mind when he was detained and the appellant was in
the process of arranging for his deportation. The behavior of the
respondent is not consistent with the behavior of a person who wanted to
apply for asylum. At the time of his incarceration the respondent was an
illegal foreigner in terms of the Immigration Act and liable to arrest and
deportation. He was not covered by the provisions of the Refugees Act as
he failed to apply for asylum in terms of  section 21 of the Refugees Act
read in conjunction with regulation 2(1)(a).

[33] In my view the respondent has failed to apply for asylum in terms
of section 21 of the Refugees Act and he has also failed to apply for
asylum without delay as required by regulation 2(1)(a). He had ample
opportunity to approach the RRO to apply for asylum but he failed to do
so and instead stayed in the country, secured employment and relied on a
fraudulent Temporary Asylum Seeker Permit. As a result thereof he was
neither covered nor protected by the provisions of the Refugees Act and
the regulations thereto.

[34] Further, the respondent has contravened ss 9 and 49(i) of the
Immigration Act by entering South Africa at a place other than a port of
entry and remaining in the country in contravention of the Immigration
Act. The appellant is entitled to deal with the respondent in accordance
with the provisions of ss 32 and 34 of the Immigration Act.

[35] The court a quo granted the appellant leave to appeal and
paragraphs 3 and 4 of that order read as follows:
'It is a condition of the grant of leave to appeal that the applicant for leave (the
Minister) must pay the costs of appeal of the respondent in the application for leave
(Mr Ruta).
The applicant must pay the respondent’s costs in this application.'
I do not agree with the costs order of the court a quo when granting leave
to appeal. The appellant has succeeded in its appeal but my view is that it
will not serve any purpose to grant costs against the respondent.

[36] In the result the following order is made.
1. The appeal is upheld.
2. The order of the court a quo is set aside and replaced with the
following:
'(a) The application is dismissed.
(b) No order as to costs.'

__________________
WL SERITI

JUDGE OF APPEAL

Mocumie JA

[37] I have read the judgment of Seriti JA. However I regret that I
cannot agree with him that the appeal should be upheld. In para 32 my
colleague finds that  on the facts of this case there is no indication that the
respondent had any intention of applying for asylum prior to his arrest
and on this basis holds that he was not covered by the provisions of the
Refugees Act 130 of 1998 (the Refugees Act). Simply put, my view is

that based on the decisions of this court in Bula v Minister of Home
Affairs1 and Ersumo v Minister of Home Affairs and others,2 once a
refugee has evinced an intention to apply for asylum, the protective
provisions of the Refugees Act and the associated regulations come into
play and the asylum seeker is entitled to be afforded access to the
application process stipulated in the Refugees Act. In light of this
conclusion, I would dismiss the appeal with costs.

[38] The background facts are set out in detail in the judgment by my
colleague for which I am grateful. Thus I shall not repeat them in this
judgment save to the extent that they support my reasoning. Before I set
out my reasons for reaching a different conclusion, I must start by saying
that I did not understand the issue before us to be ‘what may be expected
of an asylum seeker in the Republic of South Africa (South Africa) in
order to enjoy the protection afforded under section 21 of the Refugees
Act.’ I understood the issue to be whether the facts relating to the
respondent as presented in his application in the court below justified his
automatic exclusion from the refugee status determination procedure in
terms of section 4 of the Refugees Act. This is the issue that was debated
at length by the parties in this court. A determination of this issue requires
the interpretation of section 4 of the Refugees Act as amended.

[39] In addition to the main issue, which the appellant did not pursue
with the same vigour as in his heads of argument and initial oral
argument, the appellant raised two other issues linked to the main issue in
substance: ie (a) the non-applicability of Bula v Minister of Home Affairs,3
and (b) the applicability of the principles set in Kumah v Minister of

1 Bula & others v Minister of Home Affairs & others [2011] ZASCA 209; 2012 (4) SA 560 (SCA).
2 Ersumo v Minister of Home Affairs & others [2012] ZASCA 31; 2012 (4) SA 581 (SCA).
3 Bula fn 1 above.

Home Affairs.4 However, case law, which will further be discussed below,
directs us to regulation 2 and section 21 of the Refugees Act as the
starting point of an inquiry relating to any illegal foreigner who has been
encountered by an immigration officer without having indicated an
intention to apply for asylum prior to having been encountered or
detained by such officer. Because the respondent, at the relevant time,
was an illegal foreigner who had been encountered by an immigration
officer, as well as arrested for crimes committed inside the Republic, the
case before us requires a two-step enquiry: Firstly, the meaning of
regulation 2 read with section 21 of the Refugees Act in South African
case law; and secondly, if the respondent is in fact entitled to protection
in terms of the above provisions and whether he is an excluded person in
terms of section 4(1)(b) of the Refugees  Act.

The meaning of regulation 2 in South African case law
[40] The preamble to the Refugees Act states that the Act is designed to
give effect to the relevant international instruments, principles and
standards relating to refugees and to provide for the reception of asylum
seekers into South Africa. The Refugees Act regulates applications and
the recognition of refugee status and provides for the rights and
obligations flowing from that status.

[41] Regulation 2 of the Refugee Regulations, GN R366, GG 21075, 6
April 2000 deals with an application for asylum. Regulation 2(1)
stipulates that an application for asylum in terms of section 21 of the
Refugees Act must be lodged by the applicant in person at a designated
Refugee Reception Office (RRO) without delay. Regulation 2(2) states
that any person who entered the Republic and is encountered in violation

4 Kumah & others v Minister of Home Affairs & others [2016] 4 All SA 96 (GJ).

of the Aliens Control Act 96 of 1991, 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 RRO to complete an asylum
application.

[42] It is correct, as my colleague indicates in para 32, that the facts of
Bula, as well as Ersumo, are somewhat different to the facts of the matter
before us. But the majority judgment does not state that applications of
this nature are based on the legal principles propounded in Bula and
restated in Ersumo. I am alive to the fact that this court did not deal with
the interpretation of section 4(1)(b) in Bula. However, the court did
formulate fundamental principles which a court faced with an application
under the Refugees Act, read with the Immigration Act 13 of 2002, must
keep in its mind. This court said the following in paras 80-81:
‘[O]nce an intention to apply for asylum is evinced the protective provisions of the
Act and the associated regulations come into play and the asylum seeker is entitled as
of right to be set free subject to the provisions of the Act.
This court has a keen appreciation of the problems that must inevitably be
visited on the Department in keeping track of numerous persons in the position of the
appellants. As pointed out above, the [Refugees Act] is in keeping with international
conventions and international best practice in relation to refugees. Section 21(2)
obliges applicants for asylum to provide fingerprints and photographs to enable them
to be monitored. The permit in terms of section 22(1) of the [Refugees Act] enabling a
sojourn in South Africa may be issued subject to conditions determined by the
Standing Committee, which are not in conflict with the Constitution or international
law. It does not appear that such conditions have in fact been determined. Section
38(1)(e) of the [Refugees Act] enables the minister to make regulations relating to
“the conditions of sojourn in the Republic of an asylum seeker, while his or her
application is under consideration”. Such regulations appear not to have been made. It
is for another arm of Government to prescribe the conditions under consideration. In

this regard see the comments of this court in Arse v Minister of Home Affairs & others
(2010) (7) BCLR 640 (SCA) para 23.5 It is not for the judicial arm to do so. The
logistical logjam in the processing of applications for asylum of people detained at
Lindela is in part due to the absence of a RSDO [Refugee Status Determination
Officer] at Lindela. It is a problem that is easily resolved but it requires an act of will
on the part of the Department.’

[43] On the meaning of regulation 2 this court in para 72 of Bula held
that:
‘The regulation does not require an individual to indicate an intention to apply for
asylum immediately [after] he or she is encountered, nor should it be interpreted as
meaning that when the person does not do so there and then he or she is precluded
from doing so thereafter. The purpose of subsection 2 is clearly to ensure that where a
foreign national indicates an intention to apply for asylum, the regulatory framework
of the [Refugees Act] kicks in, ultimately to ensure that genuine asylum seekers are
not turned away.’ (My emphasis.)

[44] Further, in paras 73 and 74, the court said:
‘That does not mean that a decision on the bona fides of the application is made
upfront. Once the application has been made at a Refugees Reception Office, in terms
of section 21 of the [Refugees Act], the Refugee Reception Officer is obliged to
accept it, see to it that it is properly completed, render such assistance as may be
necessary and then ensure that the application together with the relevant information
is referred to a RSDO.
In terms of section 22 of the Refugees Act an asylum seeker has the protection
of the law pending the determination of his application for asylum. To that end he or
she is entitled to an asylum seeker permit entitling a sojourn in South Africa.’
I will revert to these provisions later in the judgment.

Is the respondent an excluded person in terms of section 4(1)(b)?
Section 4(1)(b) of the Refugees Act provides as follows:

5 Bula fn 1 above.

‘Exclusion from refugee status
(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.’

[45] Consonant with section 4, section 21 provides:
Application for asylum
(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 . . . .’

[46] Section 4 must also be read with section 23(1) of the Immigration
Act which provides that an asylum transit visa, which is valid for only
five days, may be issued to a person who at a port of entry claims to be an
asylum seeker, to enable him or her to travel to the nearest Refugee
Reception Office. In terms of section 23(2) of the Immigration Act, when
the asylum transit visa expires before the holder reports in person to a
RRO to apply for asylum, the holder shall become an illegal foreigner
and be dealt with in accordance with the Immigration Act.

Proceedings in the court below
[47] In adjudicating the application for an interdict by the respondent
against the appellant’s decision to deport him to his country of origin, the
court below in para 11 of the judgment relied on Bula to conclude that in
an application of this nature:
‘it is not for the court to determine whether the would-be refugee has any prospects
of success in his or her proposed application for refugee status. The power and the
duty to make this determination is vested in the Refugee Status Determination Officer
alone. Once a person communicates to an Officer of the DHA [Department of Home
Affairs] that it is his or her wish to apply for refugee status, it is the duty of that
officer and, indeed, all the authorities, to place no obstacles in the way of the
prospective applicant to have his or her case considered by a Refugee Status
Determination Officer.’

[48] On whether the respondent feared for his life if the South African
Government deported him to his country of origin, the court below held
that on the basis of one of the listed exclusions in section 4(1)(b):
‘Assuming that the respondents are suggesting that the law of Rwanda renders them
punishable by imprisonment, the applicant’s decision, on his own version, not to
commit the crime of murder in the Republic and to sever his connection with the
organisation which wanted him to be an assassin, I cannot exclude the strong
possibility that the alleged crimes are political in nature.’

Submissions of the appellant in this court
[49] Counsel for the appellant both in his heads of argument and oral
argument in this court, submitted that the intention of the legislature
manifest in section 4(1) of the Refugees Act is that offences listed in the
section should have occurred prior to the potential asylum seeker
applying for asylum. This section is aimed at past conduct of an
individual prior to his entry into the Republic. Accordingly, so he argued,
to have committed such offences after entry into the Republic even before

the person concerned has indicated the desire to apply for asylum, should
not result in any form of distinction and that section 4 should be equally
applicable even in situations where the offences were committed inside
the Republic. Counsel argued that there should therefore be an onus on
such a person to show why under such circumstances the host country
should nevertheless consider his application for asylum. This
interpretation is based on the interpretation of the provisions of section
4(1)(b).

[50] Counsel further submitted that the court below should have applied
the approach adopted in Kumah6 in relation to the reasonable period
within which a person or a prospective refugee should apply for a permit
to be in the Republic. He argued that to confine the application of section
4 to offences committed outside the Republic only, was untenable. It was
evident, so the argument went, that the respondent came into the Republic
illegally and stayed illegally until he was arrested. It was further argued
that he did not apply for asylum seeker status within a reasonable time
upon entry into the Republic, and that the objective facts demonstrate that
he had ample opportunity to apply for asylum if he wished to do so. That
he was found in possession of at least one fraudulent section 22 permit
ineluctably leads one to the conclusion that he had no intention of
applying for asylum. Therefore, the respondent was excluded from the
protection of the Refugees Act and it was consequently not necessary to
give effect to the asylum procedure provided for in sections 21, 22 and 23
of the Refugees Act.

6 See fn 4 above.

Submissions of the respondent in this court
[51] Counsel for Lawyers for Human Rights on behalf of the
respondent, submitted that the scheme of the Refugees Act was such that
once the respondent indicated his intention to apply for a refugee permit,
the appellant was statutorily and duty bound to take him through the
process provided for in sections 21, 22 and 23  of the Refugees Act. The
appellant was not entitled to close the door before allowing the
respondent an opportunity to access the process provided in sections 21,
22 and 23. From the scheme of the Refugees Act, it was incumbent on the
appellant, considering the seriousness of the impending deportation of
the respondent by the appellant, the  international obligation on South
Africa as a signatory to the United Nations Convention read with the
Constitution of South Africa, in particular section 36, to allow the
respondent to present his case before the designated officer who is, in
terms of the Refugees Act, the only person who can make a determination
one way or the other regarding the status of the respondent.

[52] The term ‘without delay’ used in regulation 2, is not defined in the
Act. In order to clarify the interpretation thereof, the adopted
interpretation should be in line with the object and purpose of the
Refugees Act. This generally rules out strict literal interpretations,
particularly as the purpose of the Refugees Act is to protect the rights of
refugees as set out in its preamble, whilst acknowledging the realities of
refugees. Kumah is not the answer, as the appellant was at pains to
convince this court. Therefore, the interpretation of the term ‘without
delay’ should apply on a case by case basis. The interpretation of this
provision must be in line with section 39(2) of the Bill of Rights.

[53] The case that came close to addressing this issue is Ersumo,7 where
this court held that the final decision on the truthfulness of an applicant’s
claims will need to be taken by a Refugee Reception Officer and not by
this or any other court. The court further held in para 15 that:
‘The grounds upon which an application for asylum may be refused are set out in
section 24(3) of the [Refugees Act]. They are that the application is “manifestly
unfounded, abusive or fraudulent” or simply “unfounded”. There is nothing to
indicate that a meritorious application may be refused merely on the grounds of delay
in making the application.’

[54] The court held further in para 16:
‘It makes no difference whether the individual entered the country and never sought
an asylum transit permit, or whether they obtained such a permit and allowed it to
lapse by not reporting to a Refugees Reception Office. Nor is there any reference to
the duration of the illegal presence, or to any mitigating factors, such as poverty,
ignorance of these legal requirements, inability to understand any of South Africa’s
official languages and the like. There is also no reference to aggravating factors, for
example, that their illegal entry was deliberate and that they have deliberately sought
to avoid the attentions of the authorities. Regulation 2(2) applies to any foreigner
encountered in South Africa, whose presence in this country is illegal.’
The same should apply to the respondent, even more so as he was kept in
a safe haven by legal authorities.

[55] In addition, this court said that ‘Regulation 2(2) ought to have been
the starting point as the appellants clearly fell within its ambit. They had
not lodged an application within the terms set out in Regulation 2(1)(a)’.
What follows is that the asylum seeker who has the intention to apply for
asylum must be taken through the process accordingly. Lest it be

7 See fn 2 above para 8.

forgotten, it is this court in Abdi & another v Minister of Home Affairs8
that expressed the following when describing section 21 which gives
effect to the Refugee Convention and the surrounding scheme in the
Refugees Act:
‘The words of the Act mirror those of the [Refugee] Convention and the OAU
Convention of 1969. They patently prohibit the prevention of access to the Republic
of any person who has been forced to flee the country of her or his birth because of
any of the circumstances identified in section 2 of the Act. Refugees entitled to be
recognized as such may more often than not arrive at a port of entry without the
necessary documentation and be placed in an inadmissible facility. Such persons have
a right to apply for refugee status, and it is unlawful to refuse them entry if they are
bona fide in seeking refuge.’

[56] To my mind the contentions made on behalf of the appellant on the
interpretation to be applied on section 4(1)(b) are plainly unsustainable.
They fly in the face of the plain language of section 4 which
unambiguously provides that only offences committed outside the
Republic and before entry into the Republic would disqualify an asylum
seeker. Suffice to say that to hold otherwise would result in an absurdity.
The legislature could never have contemplated such absurdity. The
respondent had committed no offence outside the Republic.

[57] It follows that I do not agree with para 27 of the main judgment
where it is stated:
‘I agree with Satchwell J when, in Kumah and other related matter v Minister of
Home Affairs & others at paras 33 to 39 she observed, after referring to Bula & others
v Minister of Home Affairs & others, Abdi & another v Minister of Home Affairs &
others and Ersumo v Minister of Home Affairs & others, that asylum seekers who
enter the Republic illegally are merely given a reasonable opportunity but not an
indefinite or unlimited period in which to apply for that asylum. It is plain that, apart

8 Abdi & Another v Minister of Home Affairs & others [2011] ZASCA 2; 2011 (3) SA 37 (SCA) para
22.

from any other considerations, the respondent delayed unreasonably in applying for
his asylum.’
In my view, the respondent came into the Republic illegally but handed
himself over to the law enforcement agencies. It is surprising that the law
enforcement agencies did not regulate his status while he was in their care
and custody. They knew he was in the Republic illegally, yet they kicked
him out of the programme and unleashed him onto the unsuspecting
society. Thus, the blame that he ‘delayed unreasonably’ cannot and
should not be apportioned to him alone.

[58]  In para 30 of the main judgment it is stated:
‘Section 23(1) of the Immigration Act underscores the requirement that an application
for asylum must be made without delay. It provides that an asylum transit visa, which
is valid for only five days, may be issued to a person who at a port of entry claims to
be an asylum seeker, to enable him or her to travel to the nearest RRO. In terms of
section 23(2), when the asylum transit visa expires before the holder reports in person
to a RRO to apply for asylum, the holder shall become an illegal foreigner and be
dealt with in accordance with the Immigration Act.’
My view is that the law enforcement agencies involved should have
invoked section 23 of the Immigration Act to ensure that the respondent
is taken through the process to its finality.

[59] I also cannot agree with para 34 of the main judgment which states
that:
‘Further, the respondent has contravened sections 9 and 49(i) of the Immigration Act
by entering South Africa at a place other than a port of entry and remained in the
country in contravention of the Immigration Act. The appellant is entitled to deal with
the respondent in accordance with the provisions of sections 32 and 34 of the
Immigration Act.’
In my view, once more, the respondent’s illegal entry was made legal
when he handed himself over to the law enforcement agencies. When

they kicked him out of the Witness Protection Programme, they should
have warned him of the risk that he ran if he did not approach the RRO
without any delay.

[60]  That having been said, it makes no difference whether the
respondent entered the Republic and never sought an asylum transit
permit. Nor is there any reference to the duration of the illegal presence in
regulation 2, or to any mitigating factors, such as poverty, ignorance of
these legal requirements, inability to understand any of South Africa’s
official languages and the like. There is also no reference to aggravating
factors, for example, that his illegal entry was deliberate and that he has
deliberately sought to avoid the attention of the authorities. Regulation
2(2) applies to any foreigner encountered in South Africa whose presence
in this country is illegal.9

[61] On these facts alone, the respondent was and still is entitled to be
afforded access to the asylum process under the Refugees Act. The fact
that he committed offences in the Republic long after his entry cannot and
should not serve as an automatic exclusion from the protective provision
of section 4(1)(b). Whether he gave a plausible explanation for his
presence in the Republic and when and how he entered the country, are
not matters for a court to decide before the departmental process has run
its course. That is for the designated officers in the offices of the
appellant under the provisions of sections 21, 22 and 23 read with other
relevant sections of the Immigration Act as well as relevant international
treaties and the Constitution to decide. Accordingly, the reliance on
Kumah above cannot assist the appellant.

9 See fn 2 above.

[62] But even on the basis of Kumah, although not authoritative in the
light of Bula and Ersumo, on the facts of this matter, the respondent
approached the Hawks within 2 months of his arrival in the Republic
when he decided not to go through with the plan to assassinate a person
within the boundaries of the Republic. It is surprising that law
enforcement agencies should have kicked the respondent out of the
Witness Protection Programme with full knowledge that he did not have
the required documents to be in the Republic. They should have ensured
that he had the necessary documentation from the onset.

[63]  It should be borne in mind that the rationale for the exclusion
clauses, when considering their application, is that certain acts are so
grave as to render their perpetrators undeserving of international
protection as refugees. Their primary purpose is to deprive those guilty of
heinous acts, and serious common crimes, of international refugee
protection and to ensure that such persons do not abuse the institution of
asylum in order to avoid being held legally accountable for their acts. The
exclusion clauses must be applied ‘scrupulously’ to protect the integrity
of the institution of asylum.

[64] In respect of international law, Article 1F(b) of the 1951
Convention Relating to the Status of Refugees10 contains similar
provisions to section 4(1)(b) of the Refugees Act. Article 1F(b) requires
the crime to have been committed ‘outside the country of refuge prior to
[the individual’s] admission to that country as a refugee’. Individuals who
commit ‘serious non-political crimes’ within the country of refuge are
subject to that country’s criminal law process and, in the case of

10 UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations,
Treaty Series, vol. 189, p. 137.

particularly grave crimes, to Articles 32 and 33(2) of the 1951
Convention.

[65] Clearly, the intention both under the Refugees Act and
international law, is that only crimes that have been committed outside
the country of refuge should be given consideration. Thus it is still
essential for an illegal foreigner who seeks to go through the refugee
status determination process to determine whether he is entitled to the
protections that fall under the Refugees Act to be afforded the opportunity
to do so. This is so, due to the exceptional nature of the exclusion
provisions under section 4(1), particularly section 4(1)(b) and its severe
consequences of exclusion for an individual. The exclusions should be
applied in a restrictive manner. To do otherwise, as the appellant
strenuously attempted to convince this court, would be on the basis of
sheer speculation on the possible outcome of the refugee status of the
respondent.

[66] Taking into account the interpretation of this judgment there is no
doubt that a sensible approach is one that allows for due process of the
law when dealing with refugee law, the Refugees Act and its regulations
that prescribe the procedure to be followed when applying for asylum.
The respondent is entitled to be taken through the refugee status
determination application process as he has indicated his intention to
apply for asylum, regardless of whether he committed offences that are
political or non-political in nature. This resonates with the approach
adopted in Bula in para 77 where it was said:
‘As is abundantly clear the scheme of the Act is that it is for the RSDO to determine
the merits of an application for asylum and not for a prior interrogation by a court. In
the passage in Abdi, relied on by the Minister and the DG, this court was stating the
obvious. It does not follow that in the passage referred to this court intended to

convey what is presently submitted on behalf of the Minister. On the contrary, the
concluding sentence in para 22 of Abdi makes it clear that the Department’s officials
are obliged to ensure that once there is an indication of an intention to apply for
asylum they assist the person concerned to lodge such an application at a Refugee
Reception Office.’11

[67] Finally, on the proper interpretation of section 4(1)(b) the
Constitutional Court in Mail and Guardian Media Ltd and Others v
Chipu NO & others12 stated:
‘A literal reading of section 4(1)(b) is that an applicant for asylum who has committed
a non-political crime which, if committed in South Africa, would be punishable by
imprisonment is disqualified from refugee status. However, it may well be that section
4(1)(b) should not be read literally and rigidly. Section 4(1)(b) seeks to give effect to,
among others, the  1951 Refugee Convention. A reading of part of the United Nations
High Commissioner for Refugees Handbook and Guidelines on Procedures and
Criteria for Determining Refugee Status (UNHCR Handbook) dealing with the
provisions of the 1951 Refugee Convention reveals that the relevant provision of the
convention should not be read rigidly and that there are circumstances in which a
person who has committed a non-political crime may, nevertheless, qualify for
refugee status.
Under the Act a person who wants to obtain refugee status is required to attend
in person at the Refugee Reception Office (reception office) where he or she must
apply for that status. At the Reception Office an asylum seeker will be attended to by
a reception officer. The Reception Officer has the power to conduct an inquiry in
order to verify the information furnished in the application. The reception officer
is required to forward the application to an RSDO who has the power to make a
decision on that application. An RSDO is required to grant asylum or reject the
application as manifestly unfounded, abusive or fraudulent or reject the application as
unfounded or refer any question of law to the Standing Committee established in
terms of s 9 of the Act. An RSDO may request any information or clarification from
an applicant or the Refugee Reception Office. He or she may also, where necessary,

11 See fn 1 above.
12 Mail and Guardian Media Ltd & others v Chipu NO & others [2013] ZACC 32; 2013
(6) SA 367 (CC) para 30-31.

consult with and invite a UNHCR representative to furnish information on specified
matters. With the permission of the asylum seeker, an RSDO may also provide the
UNHCR representative with such information as the latter may request.’ (My
emphasis.)

[68]  In line with Bula, Ersumo and Mail & Guardian there can be no
doubt that the respondent is entitled to the protection of the Refugees Act
whether the offences are political or non-political and regardless whether
they were committed inside or outside the Republic. We as a nation have
chosen to advance human rights, especially in respect of refugees. By
ratifying the UN Convention and other regional treaties we have
committed ourselves not to be party to the deportation of any refugee or
potential refugee to another country without the assurance that he or she
will not be subjected to any form of severe punishment, including torture.
This is what the Constitutional Court in Minister of Home Affairs &
others v Tsebe & others13 warned courts against, albeit in somewhat
extreme circumstances than in this matter.

[69] Interpreting and applying the Refugees Act and the Regulations in
the manner suggested by the appellant, goes against the very objective of
the Refugees Act set out in its preamble – which is to give effect to the
relevant international instruments, principles and standards relating to
refugees and to provide for the reception of asylum seekers into South
Africa. To interpret it otherwise would lead to results that the legislature
never intended, ie not to give potential asylum seekers protection at any
time that they apply for such status. This is so because the legislature had
the opportunity to address this on more than one occasion when it
amended the Refugees Act in 2011 and subsequently promulgated the

13 Minister of Home Affairs & others v Tsebe & others [2012] ZACC 16; 2012 (5) SA 467 (CC)paras
67-68.

Prevention of Combating and Torture of Persons Act 13 of 2013, but it
did not. Section 8 of the Prevention of Combating and Torture of Persons
Act provides that:
‘no person shall be expelled, returned or extradited to another State where there are
substantial grounds for believing that he or she would be in danger of being subject to
torture.’

[70] In my view the conclusion reached by the court below cannot be
faulted. In the result, I would dismiss the appeal with costs.

__________________
BC Mocumie
Judge of Appeal

APPEARANCES:

For Appellant:
G Bofilatos SC

Instructed by:
The State Attorney, Pretoria

The State Attorney, Bloemfontein

For Respondent:
Advocate Lesirela Letsebe
Instructed by:
Lawyers for Human Rights, Pretoria

Webbers Attorney, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY - JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

Minister of Home Affairs v Alex Ruta (30/2017) [2017] ZASCA

From:
The Registrar, Supreme Court of Appeal

Date:
13 December 2017

Status:
Immediate

Please note that the media summary is for the benefit of the media and does not form part of
the judgment of the Supreme Court of Appeal.

Today, the Supreme Court of Appeal (SCA) upheld an appeal against the decision of the
Gauteng Division, Pretoria (high court).
The main issue on appeal concerned the conduct that may be expected of an asylum seeker
in the Republic of South Africa in order to enjoy the protection afforded under s 21 of the
Refugees Act 130 of 1998.

The majority in the SCA found that on the facts, the behaviour of the respondent was not
consistent with that of a person who intended to apply for asylum. It thus concluded that the
responded was not protected by the provisions of the Refugees Act. The appeal was upheld
and the order of the court below dismissed with no order as to costs.

The minority in the SCA was of the view that on the strength of Bula v Minister of Home
Affairs [2011] ZASCA 209; 2012 (4) SA 560 (SCA), once a refugee has evinced an intention
to apply for asylum, the protective provisions of the Refugees Act and the associated
regulations come into play and the asylum seeker is entitled to be afforded access to the
application process stipulated in the Refugees Act. It thus held that the appeal ought to have
been dismissed with costs.