Ruta v Minister of Home Affairs

• Jurisdiction: South Africa
• Citation: 2019 (2) SA 329 (CC)

Ruta v Minister of Home Affairs
2019 (2) SA 329 (CC)

2019 (2) SA p329

Citation	2019 (2) SA 329 (CC)
Case No	2/18; [2018] ZACC 52
Court	Constitutional Court
Judge	Basson AJ, Cameron J, Dlodlo AJ, Froneman J, Goliath AJ, Khampele J, Mhlantla J, Petse AJ and Theron J
Heard	December 20, 2018
Judgment	December 20, 2018
Counsel	S Budlender (with L Letsebe) for the appellant.; G Bofilatos SC for the respondent.

Flynote : Sleutelwoorde

Immigration — Refugee — Asylum seeker — Delay in applying for asylum — Effect — Operation of Refugees and Immigration Acts — Crimes excluding individuals from refugee status — Place of commission — Refugees Act 130 of 1998; Immigration Act 13 of 2002. C

Headnote : Kopnota

When Mr Ruta, a Rwandan national, entered South Africa in December 2014, he did not do so at a port of entry. He also had no visa. This made him an illegal foreigner under the Immigration Act 13 of 2002.

Fifteen months passed, and then Mr Ruta was arrested for traffic offences. His illegal foreigner status was then discovered. D

He was later tried and imprisoned for the traffic offences. While imprisoned, the Department of Home Affairs moved to deport him. He sought to apply for asylum, but the Department's attitude was that it was too late, and his deportation should proceed. (See [1].)

Ultimately Mr Ruta obtained a High Court's interdiction of the deportation, and the Minister sought and received the High Court's leave to appeal to the E Supreme Court of Appeal. The High Court also ordered Mr Ruta's release, and he thereupon applied for asylum. (See [4] – [5] and [7].)

A majority of the Supreme Court of Appeal later upheld the Minister's appeal, and Mr Ruta appealed to the Constitutional Court. It granted leave to appeal, notwithstanding the matter's mootness. (See [7] and [13].)

The issues were: F

•

Whether Mr Ruta's delay before evincing an intention to apply for asylum debarred him from the asylum process. Held, that it did not. There was Supreme Court of Appeal authority for this, and the Supreme Court of Appeal had erred in not following it. (See [14], [18] – [19] and [22].)

•

How the Immigration Act and the Refugees Act 130 of 1998 were to be harmonised in respect of asylum seekers who did not enter South Africa G

2019 (2) SA p330

at A a port of entry and so became illegal foreigners and subject to arrest, detention and deportation. Held, that the asylum claim had first to be determined, and any arrest, deportation and detention under the Immigration Act deferred until then. (See [1], [34], [43], [46] and [53] – [54].)

This interpretation was consonant with the Constitution; the principle of non-refoulement (see [54]); the lex generalis specialibus non derogat maxim (see [42] and [44]); the text of the Refugees Act; its aims (see [45]); and the B circumstances of most asylum seekers (see [48] and [50]).

This interpretation also confirmed the prior Supreme Court of Appeal decisions on related points. (See [11], [18], [22] and [55].)

•

The interpretation of s 4(1)(b) of the Refugees Act. ('A person does not qualify for refugee status . . . if there is reason to believe that he . . . has C committed a crime which is not of a political nature and which, if committed in the Republic, would be punishable by imprisonment; . . . .') Held, that the exclusion operated only if the crime concerned was committed outside South Africa. (See [57].)

Leave to appeal granted; appeal upheld; order of the Supreme Court of D Appeal set aside and substituted with an order dismissing the Minister's appeal. (See [61].)

Cases cited

Southern Africa

Abdi and Another v Minister of Home Affairs and Others E 2011 (3) SA 37 (SCA) ([2011] 3 All SA 117): approved

Ahmed and Others v Minister of Home Affairs and Another 2019 (1) SA 1 (CC) (2018 (12) BCLR 1451; [2018] ZACC 39): referred to

Arse v Minister of Home Affairs and Others 2012 (4) SA 544 (SCA) (2010 (7) BCLR 640; [2010] 3 All SA 261; [2010] ZASCA 9): approved

Bula and Others v Minister of Home Affairs and Others 2012 (4) SA 560 (SCA) F ([2011] ZASCA 209): approved

Camps Bay Ratepayers' and Residents' Association and Another v Harrison and Another 2011 (4) SA 42 (CC) (2011 (2) BCLR 121; [2010] ZACC 19): referred to

Children's Institute v Presiding Officer, Children's Court, Krugersdorp, and Others 2013 (2) SA 620 (CC) (2013 (1) BCLR 1; [2012] ZACC 25): referred G to

Ersumo v Minister of Home Affairs and Others 2012 (4) SA 581 (SCA): approved

Gavric v Refugee Status Determination Officer and Others 2019 (1) SA 21 (CC) (2019 (1) BCLR 1; [2018] ZACC 38): referred to

Independent Electoral Commission v Langeberg Municipality H 2001 (3) SA 925 (CC) (2001 (9) BCLR 883; [2001] ZACC 23): referred to

Jeebhai and Others v Minister of Home Affairs and Another 2009 (5) SA 54 (SCA) ([2009] 3 All SA 103; [2009] ZASCA 35): approved

Khosa and Others v Minister of Social Development and Others; Mahlaule and Others v Minister of Social Development and Others 2004 (6) SA 505 (CC) I (2004 (6) BCLR 569): referred to

Khumalo v Director-General of Co-operation and Development and Others 1991 (1) SA 158 (A): dictum at 165E applied

Kumah and Others v Minister of Home Affairs and Others 2018 (2) SA 510 (GJ): overruled

Minister of Home Affairs and Others v Tsebe and Others 2012 (5) SA 467 (CC) J (2012 (10) BCLR 1017; [2012] ZACC 16): referred to

2019 (2) SA p331

Minister of Home Affairs v Ruta 2018 (2) SA 450 (SCA): overruled A

Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC) (2001 (2) SACR 66; 2001 (7) BCLR 685; [2001] ZACC 18): referred to

Radio Pretoria v Chairperson, Independent Communications Authority of South Africa, and Another 2005 (4) SA 319 (CC) (2005 (3) BCLR 231; B [2004] ZACC 24): referred to

Ruta v Minister of Home Affairs [2016] ZAGPPHC 1252: referred to

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3): referred to

Saidi and Others v Minister of Home Affairs and Others 2018 (4) SA 333 (CC) (2018 (7) BCLR 856; [2018] ZACC 9): referred to C

Sebola and Another v Standard Bank of South Africa Ltd and Another 2012 (5) SA 142 (CC) (2012 (8) BCLR 785; [2012] ZACC 11): referred to

True Motives 84 (Pty) Ltd v Mahdi and Another 2009 (4) SA 153 (SCA) (2009 (7) BCLR 712; [2009] 2 All SA 548; [2009] ZASCA 4): referred to

Turnbull-Jackson v Hibiscus Coast Municipality and Others 2014 (6) SA 592 (CC) D (2014 (11) BCLR 1310; [2014] ZACC 24): dictum in para [55] applied

Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC) (2007 (4) BCLR 339; [2006] ZACC 23): referred to

Van Wyk v Unitas Hospital (Open Democratic Advice Centre as Amicus Curiae) E 2008 (2) SA 472 (CC) (2008 (4) BCLR 442): referred to.

England

R v Immigration Officer at Prague Airport; Ex parte European Roma Rights Centre [2004] UK HL 55: referred to

R v Secretary of State for the Home Department, Ex parte Sivakumaran and Conjoined Appeals (UN High Commissioner for Refugees Intervening) F [1988] 1 All ER 193 (HL): referred to

R v Uxbridge Magistrates Court; Ex parte Adimi [1999] EWHC Admin 765 ([2001] QB 667): referred to

United States of America

East Bay Sanctuary Covenant v Donald Trump No 18 17274 (9th Cir 2018): G referred to

Legislation cited

The Immigration Act 13 of 2002: see Juta's Statutes of South Africa 2017/18 vol 7 at 4-36

The Refugees Act 130 of 1998: see Juta's Statutes of South Africa 2017/18 vol 7 at 4-15. H

Case Information

S Budlender (with L Letsebe) for the appellant.

G Bofilatos SC for the respondent.

An appeal of a decision of the Supreme Court of Appeal (Minister of Home Affairs v Ruta 2018 (2) SA 450 (SCA)). I

Order

1.

Leave to appeal is granted and the appeal succeeds with costs, including the costs of two counsel. J

2019 (2) SA p332

2.

A 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): B

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. C He did not enter through an official port of entry. In addition, he did not have a visa. Under the Immigration Act, [1] that made him an 'illegal foreigner' [2] liable to criminal penalties [3] and to deportation. [4] Some

2019 (2) SA p333

Cameron J (Basson AJ, Dlodlo AJ, Froneman J, Goliath AJ, Khampepe J, Mhlantla J, Petse AJ and Theron J concurring)

15 months later, in March 2016, after travails that do not require A recounting here, [5] he was arrested in Pretoria for road traffic violations. It was then discovered that he was in the country illegally. He was tried and imprisoned for the road traffic offences. While he was in prison, the Department of Home Affairs (Department) moved to deport him to Rwanda. He countered by seeking to apply for asylum under the B Refugees Act. [6] In Rwanda, he said, he faced certain death. The respondent, the Minister of Home Affairs (Minister), opposed. The Department, whose officials deposed on behalf of the Minister, said it was too late for him to apply. Its attitude was that his deportation 'should continue unabated'.

[2] What followed was a saga. Mr Ruta tried through the courts to avoid C deportation. His efforts were rewarded in the High Court, [7] but were rejected in the Supreme Court of Appeal, which by a majority reversed the High Court decision in his favour. [8] He now seeks to contest the adverse outcome in the...