Gavric v Refugee Status Determination Officer, Cape Town and Others (CCT217/16) [2018] ZACC 38; 2019 (1) SA 21 (CC); 2019 (1) BCLR 1 (CC) (28 September 2018)

Gavric v Refugee Status Determination Officer, Cape Town and Others (CCT217/16) [2018] ZACC 38; 2019 (1) SA 21 (CC); 2019 (1) BCLR 1 (CC) (28 September 2018)

The Constitutional Court held that section 4(1)(b) of the Refugees Act is not unconstitutional, as it aligns with international law and is saved by the non-refoulement principle in section 2, which prohibits returning individuals to countries where they may face persecution. The Court found that exclusion decisions...

Source-derived case information.

Citation
[2018] ZACC 38
Parties
Applicant: Dobrosav Gavrić; Respondent: Refugee Status Determination Officer, Cape Town; Respondent: Minister of Home Affairs; Respondent: Director-General of Department of Home Affairs; Respondent: Minister of Justice and Constitutional Development; Respondent: Director-General of Justice and Constitutional Development; Respondent: Director of Public Prosecutions, Western Cape; Amicus Curiae: People Against Suppression, Suffering, Oppression and Poverty (PASSOP)
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
28 September 2018
Case Number
CCT217/16
Procedural Posture
Leave to Appeal / Appeal From High Court, Western Cape Division; Application for Leave to Appeal to Constitutional Court
Outcome
Appeal upheld; exclusion decision set aside; no costs order.
Judges
Mogoeng, Dlodlo, Froneman, Goliath, Jafta, Khampepe, Madlanga, Petse, Theron
Legal Topics
Refugees Act Section 4 Exclusion, Non Political Crime, Internal Remedies, Promotion of Administrative Justice Act, Procedural Fairness, Non Refoulement
Constitutional Law Administrative Law Refugees Act Section 4 Exclusion Non Political Crime Internal Remedies Promotion of Administrative Justice Act Procedural Fairness Non Refoulement

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Parties

Dobrosav Gavrić

Applicant

Refugee Status Determination Officer, Cape Town

Respondent

Minister of Home Affairs

Respondent

Director-General of Department of Home Affairs

Respondent

Minister of Justice and Constitutional Development

Respondent

Director-General of Justice and Constitutional Development

Respondent

Director of Public Prosecutions, Western Cape

Respondent

People Against Suppression, Suffering, Oppression and Poverty (PASSOP)

Amicus Curiae

Procedural Posture

Leave to Appeal / Appeal From High Court, Western Cape Division; Application for Leave to Appeal to Constitutional Court

Legal Issues

  1. 1 Whether leave to appeal and condonation should be granted.
  2. 2 Whether section 4(1)(b) of the Refugees Act is inconsistent with the Constitution and invalid.
  3. 3 Whether a decision under section 3 of the Refugees Act must precede or accompany an exclusion decision under section 4(1).

Ratio Decidendi

The Constitutional Court held that section 4(1)(b) of the Refugees Act is not unconstitutional, as it aligns with international law and is saved by the non-refoulement principle in section 2, which prohibits returning individuals to countries where they may face persecution. The Court found that exclusion decisions under section 4(1)(b) are subject to internal remedies, specifically appeal to the Refugee Appeal Board, and that the applicant was not precluded from seeking such remedies. However, due to exceptional circumstances, including significant delays and the lack of awareness of internal remedies by both the applicant and the decision-maker, the Court granted exemption from the...

Court Disposition

Appeal upheld; exclusion decision set aside; no costs order.

Orders

  • Leave to appeal is granted.
  • The appeal is upheld and the order of the High Court is set aside.