Today, 20 December 2018, the Constitutional Court handed down an unanimous judgement in the case of Alex Ruta v The Minister of Home Affairs, overturning the majority ruling of the Supreme Court of Appeal.

The Constitutional Court declared that Section 4 (1) (b) of the Refugees Act relates to individuals that commit crimes outside the Republic prior to entering South Africa.  The court also ruled that failure to apply for asylum on arrival in the Republic, cannot lead to disqualification from applying for asylum.

LHR argued that the actions of the DHA were procedurally incorrect and amounted to unfair administrative action. Every person that approaches the Refugee Reception Office (RRO) must be given the opportunity to apply for asylum and be processed correctly. An interview must be conducted by the Refugee Status Determination Officer (RSDO) who is afforded the powers to accept or reject an asylum application by the Refugees Act. The RSDO must then issue a written decision conveying his/her decision to the asylum applicant. This procedure ensures that an applicant is not arbitrarily sent back to a country where he/she could face persecution

The Constitutional Court confirmed the judgement of the High Court and held that the exclusion of section 4 (1) (b) of the Refugees Act cannot apply to offences of which Mr. Ruta was convicted, because they were committed within the Republic, and that failure to apply for asylum at “the first available opportunity” cannot lead to disqualification from applying for asylum.

LHR welcomes the judgement handed down by the Honourable Cameron J, as it emphasizes that a person who expresses a desire to apply for asylum must be allowed to apply, and the application must be properly considered by the Refugee Status Determination Officer.

LHR would like to thank Advocates Steven Budlender and Lesirela Letsebe for their valuable contributions to this matter.

For further information, please contact

Louisa Thomo (082 5511 736) or Sharon Ekambaram (083 634 8924)