Unintended consequences for exclusions

Unintended Consequences
for Exclusions
SIHMAScalabrini Institute for
Human Mobility in Africa
A d v o c at e s ’ M i g r at i o n B r i e f S E R I E S / 0 1
by David Simonsz
Edited by James Chapman and Lee Anne de la Hunt

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Advocates’ Migration Brief SERIES
The Advocates’ Migration Brief Series addresses recent judicial
decisions relating to people on the move.
1. Unintended Consequences for Exclusions
(David Simonsz)
Published by SIHMA
December 2020
Cover photo Elaboration from Timon Studler on Unsplash
Other photos:
Thorsten Frenzel on Pixabay
ErikaWittlieb on Pixabay
James Pond on Unsplash

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AUTHOR
David Simonsz holds a BA.LLB from the
University of Cape Town, and an LLM in
Human Rights and Democratisation in Af-
rica from the University of Pretoria.
He practices as an Advocate of the High
Court of South Africa as a member of the
Cape Bar, specialising in human rights,
public, immigration and refugee law.
EditorS
James Chapman James Chapman is an
attorney who studied law at the University
of Cape Town. He practiced as a refugee
and asylum attorney for over 10 years and
was the head of advocacy, training, and
strategic litigation at a refugee law clinic
and research unit during that period. He
authored a chapter in Immigration Law in
South Africa (ed Khan), and he is currently the Project Manager
at SIHMA and he came up with the idea of SIHMA’s: Advocate’s
Migration Brief paper series.
Lee Anne de la Hunt taught refugee and
immigration law during her tenure as As-
sociate Professor at the University of Cape
Town and while serving as Director of the
University’s Law Clinic. Following this,
she was the legal adviser to the Minister of
Home Affairs for five years. She currently
practises as an advocate at the Cape Bar,
where immigration, citizenship and refugee law are a large part
of her public law practice.

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1. Introduction
On 1 January 2020, the asylum seeker community in South
Africa received an unwelcome new year’s gift: Wide-ranging
amendments to the Refugees Act 130 of 1998 (“the Refugees Act”)1
and the regulations thereto2
which made significant (and adverse)
changes to the operation of the asylum system.
Among these changes were an expansion of the grounds on
which asylum seekers and refugees may be excluded from refugee
status, in terms of section 4 of the Refugees Act. The nature of
each of these new grounds for exclusion will doubtless be the site
of much academic discussion, and litigation, in the years to come.
For the time being, however, the practical effect of these
amendments is – or will be, once the impact of the COVID-19
pandemic recedes – to increase greatly the numbers of asylum
seekers who are being excluded from asylum.
It is appropriate, in these circumstances, to consider how
exactly exclusion works in practice – and for this, one must look
to the leading Constitutional Court case of Gavrić v Refugee Status
Determination Officer, Cape Town and Others [2018] ZACC 38
(“Gavrić”).3
Gavrić starts with one important ruling:4
that persons
excluded from refugee status are nonetheless protected by the
1
On 1 January 2020, three different amendment acts (which I shall refer to as “the
2020 amendments”) came into effect. These are the Refugees Amendment Act 11 of
2017, the Refugees Amendment Act 33 of 2008 and Refugees Amendment Act 12 of
2011. The 2020 amendments were to come into effect together, and the date of opera-
tion was determined by the President of the Republic of South Africa to be 1 January
2020 in Proc 60, Government Gazette 42932, 23 December 2020.
2
The Refugees Regulations, published in GNR 1707 in Government Gazette 42932
of 27 December 2019.
3
Cited as 2019 (1) SA 21 (CC) and 2019 (1) BCLR 1 (CC). The author acted as
junior counsel to Mr Dobrosav Gavrić in this matter.
4
The Constitutional Court’s findings on the merits of Mr Gavrić’s review applica-
tion, and its commentary on section 4(1)(b) of the Refugees Act and the question of
what crimes are “political” for the purposes of exclusion, are important but are not
the subject of this article.

5
right of non-refoulement, enshrined in the overarching provisions
of section 2 of the Refugees Act. In other words, a person excluded
from refugee status may still – depending on the persecution that
the person fears – not be returnable to their country of origin,
and thus still retains the most basic protection (of non-return)
granted to asylum seekers.
But Gavrić then goes on to find that a person excluded
from asylum, but who remains protected by the right of non-
refoulement, can raise his or her right of non-refoulement as a
defence in his or her extradition proceedings (which Mr Gavrić
was still to face).5
How this is meant to operate when an excluded person is not
facing extradition – which category will include the vast majority
of asylum seekers – is left unsaid, and unclear.
At the time, exclusion decisions were sufficiently rare (and
the judgment in Gavrić sufficiently recent) that this verged
on being only an academic problem. The 2020 amendments,
however, look to change that.
The unintended consequence of Gavrić read with the 2020
amendments is to create a category of persons who are neither
part of the refugee and asylum system, nor of the South African
immigration system, nor have any formal documentation or
clear rights in South Africa, save for the right to remain in South
Africa. And this is in no one’s interests. Indeed, it may well be
unsustainable, both legally and practically, for the Department
of Home Affairs (“the Department”) and the South African
migration system as a whole.
In expounding the above, this article begins with a brief
explanation of the right of non-refoulement, and of the role of
exclusions within the asylum system. Thereafter, Mr Gavrić’s
5
Gavrić at para 30.

6
personal and litigious history is described. This article then turns
to the findings of the Constitutional Court in Gavrić vis-à-vis
exclusion, and particularly the finding that excluded persons
may remain protected by the right of non-refoulement, depending
on the merits of their claim, which claim is to be adjudicated in
extradition proceedings.
But an analysis of the Extradition Act 67 of 1962 (“the
Extradition Act”) shows that the procedures thereunder are
wholly unsuited to deal with foreign persons who are not subjects
of extradition requests (unlike Mr Gavrić). Nor can the systems
under the Immigration Act 13 of 2002 (“the Immigration Act”) be
of assistance, as this statute is equally not designed to adjudicate
claims about harm feared in foreign countries. The best approach
may be to conduct refugee status determinations under the
Refugees Act prior to assessing whether asylum seeker is excluded
(known as the “inclusion before exclusion” approach). However,
this did not occur in Gavrić, and the Constitutional Court held in
Gavrić that such an approach need not be followed.
The article concludes that the practical consequences of
the “Gavrić approach” to asylum and exclusions, applied in light
of the 2020 amendments, will be uncertain, chaotic, and in all
likelihood adverse to those most in need of protection: asylum
seekers.

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2. The right of non-refoulement
The right of non-refoulement needs little introduction to any
person familiar with refugees and asylum seekers. Domestically,
it is contained in section 2 of the Refugees Act, which provides:
“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.”
This provision has attracted much judicial comment, the most
authoritative of which are the dicta of the Constitutional Court,
in Ruta6
at paragraphs 24-26, as follows:
“This is a remarkable provision. Perhaps it is unprecedented in
thehistoryofourcountry’senactments.Itplacestheprohibition
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
6
Ruta v Minister of Home Affairs 2019 (3) BCLR 383 (CC) (“Ruta”).

8
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.
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 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.”
(Emphasis added.)
Ifanasylumseekerorrefugeeisapersonfleeingharmasdefinedin
section 3 of the Refugees Act in their country of origin, then non-
return (non-refoulement) is the most fundamental protection that
the person can receive. It serves as a prerequisite, logically and

9
practically, for all other rights that may be offered to a refugee or
asylum seeker. As Khan and Schreier state: “The most vital element
of refugeehood is the safeguard against being returned to a country
where a person has reason to fear persecution”.7
And as Ruta states
in no uncertain terms, “[t]he ‘shield of non-refoulement’ may be
lifted only after a proper determination [of the merits of an asylum
seeker’s claim] has been completed”.8
The significance of non-refoulement is stressed because
Gavrić raises the question: What are the rights or status of a
person who is neither a refugee nor an asylum seeker, but who
remains protected by the “shield” of non-refoulement?
7
Khan & Schreier (eds.) Refugee Law in South Africa (Juta) at 1.
8
Ruta at para 54.

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3.The place of exclusion within
the asylum system
First,anexplanationofexclusion.Persons“excluded”fromrefugee
status are refused recognition as refugees not because they do not
fear persecution in their countries of origin (i.e. on the merits
of their claim), but either because some other act of theirs has
rendered them undeserving of refugee status or because they are
have the effective protection of another country and hence do not
need refugee status.
While the notion of exclusion derives from international
law,9
in South Africa the relevant provision of the Refugees Act is
section 4, which needs quoting in full:
9
Specifically from the United Nations 1951 Convention Relating to Status of Ref-
ugees (“the Convention”) and the 1969 Organisation of African Unity Convention
Governing the Specific Aspects of Refugee Problems in Africa (“the OAU Conven-
tion”). Article 1F of the Convention provides:
“The provisions of this Convention shall not apply to any person with respect to
whom there are serious reasons for considering that:
(a) He has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes;
(b) He has committed a serious non-political crime outside the country of refuge
prior to his admission to that country as a refugee;
(c) He has been guilty of acts contrary to the purposes and principles of the
United Nations.”
Article 5 of the OAU Convention provides:
“The provisions of this Convention shall not apply to any person with respect to
whom the country of asylum has serious reasons for considering that:
(a) he has committed a crime against peace, a war crime, or a crime against
humanity, as defined in the international instruments drawn up to make
provision in respect of such crimes;
(b) he committed a serious non-political crime outside the country of refuge prior
to his admission to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the Or-
ganization of African Unity;
(d) he has been guilty of acts contrary to the purposes and principles of the United
Nations”
The parallels to section 4 of the Refugees Act are obvious.

11
“(1) An asylum seeker does not qualify for refugee status for
the purposes of this Act if a Refugee Status Determination
Officer has reason to believe that he or she-
(a) has committed a crime against peace, a crime involving
torture, as defined in the Prevention and Combating of
Torture of Persons Act, 2013 (Act 13 of 2013), 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 outside the Republic, which is
not of a political nature and which, if committed in the
Republic, would be punishable by imprisonment without
the option of a fine; or
(c)hasbeenguiltyofactscontrarytotheobjectsandprinciples
of the United Nations or the African Union; or
(d) enjoys the protection of any other country in which he or
she is a recognised refugee, resident or citizen; or
(e) has committed a crime in the Republic, which is listed in
Schedule 2 of the Criminal Law Amendment Act, 1997
(Act105of1997),orwhichispunishablebyimprisonment
without the option of a fine; or
(f) has committed an offence in relation to the fraudulent
possession, acquisition or presentation of a South African
identity card, passport, travel document, temporary
residence visa or permanent residence permit; or
(g) is a fugitive from justice in another country where the rule
of law is upheld by a recognised judiciary; or
(h) having entered the Republic, other than through a port
of entry designated as such by the Minister in terms
of section 9A of the Immigration Act, fails to satisfy a
Refugee Status Determination Officer that there are
compelling reasons for such entry; or

12
(i) has failed to report to the Refugee Reception Office within
five days of entry into the Republic as contemplated in
section 21, in the absence of compelling reasons, which
may include hospitalisation, institutionalisation or any
othercompellingreason:Providedthatthisprovisionshall
not apply to a person who, while being in the Republic on
a valid visa, other than a visa issued in terms of section
23 of the Immigration Act, applies for asylum.
(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 or the African Union.”
TheUnitedNationsHighCommissionerforRefugees(“UNHCR”)
has stated:
“The rationale for the exclusion clauses, which should be borne
in mind 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
avoidbeingheldlegallyaccountablefortheiracts.Theexclusion
clauses must be applied “scrupulously” to protect the integrity
of the institution of asylum, as is recognised by UNHCR’s
Executive Committee in Conclusion No. 82 (XLVIII), 1997.
At the same time, given the possible serious consequences of
exclusion, it is important to apply them with great caution and
only after a full assessment of the individual circumstances of
the case. The exclusion clauses should, therefore, always be

13
interpreted in a restrictive manner.”10
(Emphasis added.)
Exclusion was, prior to the 2020 amendments, something of a
rarity. Besides Gavrić, only a handful of other cases deal with
exclusion.
In Tantoush v Refugee Appeal Board and Others 2008 (1)
SA 232 (T), the applicant was a political opponent sought by the
Libyan government. He applied for but was refused recognition
as a refugee in South Africa. He then approached the High Court
to set that decision aside, and to be granted refugee status.11
The
Department opposed the grant of refugee status on the basis that
Mr Tantoush should be excluded in terms of section 4(1)(b) of
the Refugees Act, as he had committed theft.12
The High Court,
however, held that theft was not a sufficiently serious crime to
warrant exclusion,13
and that the charge of theft may well have
been trumped up by Libyan authorities specifically to deprive Mr
Tantoush of the protection of the Refugees Act.14
10
UNHCR Guidelines on International Protection No. 5: Application of the
Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees
(“UNHCR Guideline 5”) at para 2. See also Gilbert “Current Issues in the Application
of the Exclusion Clauses” in Refugee Protection in International Law: UNHCR’s
Global Consultations on International Protection Feller, Türk and Nicholson (eds.)
(Cambridge University Press, 2003) at 427-428:
“Reference to the travaux preparatoires shows that the exclusion clauses sought to
achieve two aims. The first recognizes that refugee status has to be protected from
abuse by prohibiting its grant to undeserving cases. Due to serious transgressions
committed prior to entry, the applicant is not deserving of protection as a refugee
– there is an intrinsic link ‘between ideas of humanity, equity and the concept of
refuge’. The second aim of the drafters was to ensure that those who had commit-
ted grave crimes in the Second World War or other serious non-political crimes,
or who were guilty of acts contrary to the purposes and principles of the United
Nations, did not escape prosecution.”
11
In other words, a substitution order in terms of section 8(1)(c)(i) of the Promo-
tion of Administrative Justice Act 3 of 2000 (“PAJA”).
12
At para 7.
13
At paras 115-116.
14
At paras 118-122

14
In Consortium for Refugees and Migrants in South Africa
v President of the Republic of South Africa and Others [2014]
ZAGPPHC 753 (14 September 2014), the applicant, a non-
governmental organisation (“CORMSA”), sought to set aside the
granting of refugee status to a Mr Faustin Kayumba Nyamwasa.
Mr Nyamwasa, a former Rwandan general, was alleged to be
implicated in genocide, crimes against humanity, and war crimes.
Accordingly, CORMSA argued, he was not deserving of refugee
status. While the High Court dismissed the application due to
lackofevidenceagainstMrNyamwasa,15
onappealtotheSupreme
Court of Appeal (“SCA”), the High Court’s order was set aside by
agreement between the parties.16
In Okoroafor v Minister of Home Affairs and Another 2017 (3)
SA 290 (ECP), the applicant, a Nigerian national, was found with
a fraudulent visa in his passport, for which he was convicted and
sentenced. Subsequent to serving his time, the applicant claimed
that he wished to seek asylum, but the Department opposed this
on the basis that the applicant was excluded by section 4(1)(b)
of the Refugees Act because of the fraud he had committed. The
High Court dismissed the Department’s arguments by finding
that section 4(1)(b) only applied to crimes committed outside
South Africa.17
In Mail & Guardian Media Ltd v Chipu NO 2013 (6) SA 367
(CC) (“Chipu”) the Constitutional Court discussed exclusion,18
but the obiter dicta in Chipu were authoritatively critiqued in
15
At paras 20-21.
16
CORMSA v President of the Republic of South Africa and Others (SCA 75/2016),
order of 24 May 2017). As it was by agreement, there is no judgment. A copy of the
order is on file with the author.
17
At para 20. In making this finding, the High Court (per Eksteen J) overruled a
previous unreported decision of that Division (per Jones J) in the matter of Ozoekwe
v Minister of Home Affairs (2674/2008, delivered on 26 February 2009).
18
See para 30.

15
Gavrić.19
In Refugee Appeal Board v Mukungubila 2019 (3) SA 141
(SCA), the SCA heard the appeal of a Congolese religious leader
who had been excluded in terms of sections 4(1)(a) and (b) of the
Refugees Act. In the High Court, Mr Mukungubila succeeded
in having the exclusion decision set aside, and was also granted
a range of declaratory and other orders. In the SCA, the setting
aside was confirmed due to factual defects in the exclusion
decision,20
but the rest of the substantive orders were overturned
(partly due to Gavrić, which was decided shortly prior to this
judgment).21
One of the reasons why exclusion decisions were rare is
that, prior to the 2020 amendments, section 4(1) contained
only the first four subsections listed in the above quotation. The
circumstances and/or criteria listed in these subsections are
inherently unusual – few persons can be accused of war crimes
or crimes against peace, for example. It is subsections 4(1)(e) to
(i) which are recent arrivals, and which deserve special attention.
They effectively exclude persons who enter South Africa other
than through a port of entry, or who fail to access a Refugee
Reception Office (“RRO”) within five days of entry into South
Africa, unless compelling reasons are provided for the irregular
entry/failure to report.
These are relatively common offences. Many asylum seekers
enter South Africa irregularly, or fail – despite their best efforts
– to access an RRO within five days. Accordingly, these two
subsections will, as time passes, apply to hundreds and eventually
thousands of asylum seekers.
Indeed, from the perspective of the Department, that may
19
Gavrić at paras 34-39.
20
At paras 25-27.
21
See para 28.

16
‘If an asylum seeker or refugee is a
person fleeing harm as defined in
section 3 of the Refugees Act in their
country of origin, then non-return (non-
refoulement) is the most fundamental
protection that the person can receive.’

17
be the point. The asylum decision-makers within the Department
– the Refugee Status Determination Officers (“RSDOs”), Refugee
Appeal Authority (“RAA”), and Standing Committee for
Refugee Affairs (“SCRA”) – are notoriously under-resourced and
overwhelmed with the demands already placed upon them by
asylum seekers within South Africa. Might it not be desirable,
as the Department may see it, to reduce these numbers by
excluding thousands from asylum system at the stroke of a pen?
Particularly when these individuals have failed to comply with
the requirements of the Refugees Act?
The answer, as shall be seen in more detail, is no. This is
because while these thousands may be excluded from the formal
asylum system, they are not – under Gavrić – deprived of the
shield of non-refoulement, and thus may lawfully remain in South
Africa. They are still South Africa’s, and thus the Department’s,
problem.

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4.Dobrosav Gavrić22
Mr Gavrić is a Serbian national. In 2000, he was present (and was
wounded) at the assassination of the Serbian nationalist warlord
and gangster, Zeljko Ražnatović, better known as “Arkan”. He was
charged, along with various accomplices, with the assassination
of Arkan, and pleaded not guilty. He was detained in Serbia for
the first three years of his criminal trial, during which time the
entire wing of the prison was kept empty save for him, as the
Serbian government believed he would otherwise be killed by
Arkan’s former comrades.
Mr Gavrić consistently claimed to be innocent, and that the
true force behind Arkan’s death was Serbian President Slobodan
Milosevic, who feared Arkan’s evidence concerning the atrocities
committed in the Yugoslav ethnic conflicts might be used against
him at, inter alia, the International Criminal Court.
Mr Gavrić was, however, ultimately convicted of Arkan’s
murder (and of the murder of two of Arkan’s bodyguards, who
died with him). The conviction was handed down in absentia,
because Mr Gavrić had by then fled the country. An appeal to
the European Court of Human Rights was later dismissed on the
grounds of prematurity, as Mr Gavrić would have the right to a
re-trial if he ever returned to Serbia.
He came to South Africa, where he obtained residence under
a false name and passport. His presence here was only uncovered
when he became a witness (and was wounded again) at another
assassination. It was at this stage that Serbia sought Mr Gavrić’s
extradition.
Mr Gavrić, concerned that if he were returned to Serbia, the
compatriots of Arkan would have him killed to avenge Arkan,
22
The facts stated in this chapter derive from affidavits and court records in the
possession of the author.

19
applied for asylum. On 19 November 2012, Mr Gavrić was held
to be excluded in terms of section 4(1)(b) of the Refugees Act,
because he had committed a serious non-political crime.
Mr Gavrić was instructed to approach the SCRA as an
internal remedy, which he duly did, but the SCRA held that it had
no jurisdiction over persons excluded in terms of section 4 of the
Refugees Act. It was never suggested to Mr Gavrić (prior to the
hearing in the Constitutional Court) that he should approach the
Refugee Appeal Board).
Mr Gavrić approached the Western Cape High Court,
seeking three primary forms of relief:
• The review and/or setting aside of the exclusion decision;
• A substitution order declaring him to be a refugee, in terms
of section 8(1)(c)(ii)(aa) of the Promotion of Administrative
Justice Act 3 of 2000 (“PAJA”); and
• A declaration that section 4(1)(b) of the Refugees Act was
inconsistent with the Constitution of the Republic of South
Africa, 1996 (“the Constitution”) and invalid.
The premise of the constitutional challenge to section 4(1)
(b) was that the rationale behind exclusion as a concept – that
certain persons could be “undeserving” of protection against
gross violations of their human rights – was not consistent with
the modern conception of human rights as enshrined in the
Constitution.23
South Africa (and the world) had, Mr Gavrić
23
Minister of Home Affairs v Tsebe 2012 (5) SA 467 (CC) (“Tsebe”) at paras 67-68:
“We as a nation have chosen to walk the path of the advancement of human
rights. By adopting the Constitution we committed ourselves not to do certain
things. One of those things is that no matter who the person is and no matter
what the crime is that he is alleged to have committed, we shall not in any way
be party to his killing as a punishment and we will not hand such person over to
another country where to do so will expose him to the real risk of the imposition
and execution of the death penalty upon him. This path that we, as a country,
have chosen for ourselves is not an easy one. Some of the consequences that may
result from our choice are part of the price that we must be prepared to pay as a
nation for the advancement of human rights and the creation of the kind of so-
ciety and world that we may ultimately achieve if we abide by the constitutional

20
contended, already begun to recognise that there are some forms
of persecution to which a person cannot be sent, regardless of
their crimes.24
On 6 April 2016, the Western Cape High Court (per
Mantame J) dismissed Mr Gavrić’s application, but he was given
leave to appeal to the Constitutional Court. On 1 February 2017,
the Constitutional Court issued directions requesting written
submissions by the parties, including on the questions:
• What is the scope of application of the principle of non-
refoulement enshrined in section 2 of the Refugees Act?
• Is such protection available to persons who have been
excluded in terms of section 4(1)(b) of the Refugees Act?
• Do the mechanisms and processes contained in the
Extradition Act afford appropriate safeguards in preventing
potential violations of constitutionally protected rights? And
• Is the applicability of section 4(1)(b) of the Refugees Act
values that now underpin our new society since the end of apartheid.
If we as a society or the state hand somebody over to another state where he will
face the real risk of the death penalty, we fail to protect, respect and promote the
right to life, the right to human dignity and the right not to be subjected to cruel,
inhuman or degrading treatment or punishment of that person, all of which are
rights our Constitution confers on everyone. This court’s decision in Mohamed
said that what the South African authorities did in that case was not consistent
with the kind of society that we have committed ourselves to creating. It said in
effect that we will not be party to the killing of any human being as a punishment
— no matter who they are and no matter what they are alleged to have done.”
(Emphasis added.)
See also 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 Interven-
ing) 2001 (3) SA 893 (CC) (“Mohamed”) at para 52.
24
For example, there is now a global acknowledgement that torture is never accept-
able, and the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment (“CAT”) states at Article 3(1) that “No State Party shall
expel, return (‘refouler’) or extradite a person to another State where there are sub-
stantial grounds for believing that he would be in danger of being subjected to torture”.
See National Commissioner of Police v SAHR Litigation Centre 2015 (1) SA 315 (CC)
(“SAHRLC”) at para 35. This absolute prohibition has been incorporated into South
African domestic law by section 8 of the Prevention and Combating of Torture of
Persons Act 13 of 2013.

21
contingent on a previous finding by the RSDO that the
person qualifies for refugee status in terms of section 3 of
the Act?
Both Mr Gavrić and the Department filed written submissions
which, inter alia, concurred that persons excluded in terms of
section 4(1)(b) of the Refugees Act remain protected by the right
of non-refoulement.
However, Mr Gavrić submitted that the Extradition Act did
not afford appropriate safeguards to ensure that persons were
not returned to countries in which they would face persecution,
in violation of their rights to non-refoulement. The Department
disagreed. Similarly, Mr Gavrić submitted that asylum seekers
should undergo a refugee status determination before they are
assessed under section 4(1)(b) of the Refugees Act (inclusion
before exclusion), and the Department disagreed.
On 28 September 2018 (two years after he first applied to
the Court, and almost six years after the exclusion decision was
made) the final judgment was handed down. Throughout this
time, the extradition proceedings against Mr Gavrić were stayed.

22
5. The findings of the
Constitutional Court in Gavrić
The first issue of substance dealt with in Gavrić was the
constitutional challenge to section 4(1)(b).
The Constitutional Court begins, at paragraph 20 et seq,
with a summary of Mr Gavrić’s argument, and then appears to
state with approval that “the rationale behind the exclusion clause
is two-fold: it protects refugee status from being abused by those
who are undeserving; and it ensures that those who have committed
serious crimes do not escape prosecution”. 25
But the Court goes on to hold at paragraphs 26-27 that:
“It is trite that under the Constitution, human rights cannot
be denied to any person, regardless of the crimes they have
committed. This principle was affirmed by this Court in
Mohamed. Section 4(1)(b) does not in any way challenge or
negatively impact on the right to life, or the right to freedom
and security of the person. This is so because of the principle
of non-refoulement which is embodied in section 2 of the Act.
The principle of non-refoulement has been endorsed and
given effect to by this Court. No person will be returned to her
country of origin or nationality even in circumstances where
there is an application for her extradition, where there is a real
risk that such person will be exposed to the imposition of the
death penalty or be treated or punished in a cruel, inhuman or
degrading way or in any way be tortured.”
(Emphasis added.)
And at paragraph 36, the Court summarises its findings in
25
Gavrić at para 24.

23
paragraphs 26-31 of its judgment as follows:
“Section 2 creates a stop-gap measure that ensures that no
person will be returned to any country where their life, physical
safety or freedom will be threatened, irrespective of whether
they have been excluded under section 4”.
(Emphasis added.)
It is these dicta that confirm that excluded persons remain
shieldedbytherightofnon-refoulement.Undoubtedlythisfinding
is correct. It is consistent with the wording of section 2 of the
Refugees Act, as well as with the underlying purpose of refugee
law as a whole: to protect persons from inhumane persecution.
But these dicta also allow for the creation of a relatively
novel class of foreigner in South Africa: Excluded asylum seekers
who may not be removed from South Africa until their claims
of persecution in their countries of origin have been adjudicated
and (potentially) dismissed.
And the failure of the Constitutional Court is in giving
sadly little guidance on how such excluded asylum seekers are to
be processed and treated. At paragraphs 30 to 31 of Gavrić, the
Court states:
“In the event that the exclusion decision of the RSDO is
confirmed, the question whether there is a real risk of the
applicant being killed or persecuted if he were to be returned
to Serbia, is one which the Executive will be compelled to
determine when it considers Serbia’s application for his
extradition. At that stage, the applicant may avail himself of
the right to oppose his extradition to Serbia on account of
there being a real risk that he might be killed should he be
returned to Serbia.

24
In conclusion, section 4(1)(b) must be read together with
section 2 of the Act. Section 2 creates the constitutionally
saving stop-gap measure for the possible constitutional
defect of sending non-political offenders back to their
country where there is a real risk of persecution.”
(Emphasis added.)
The above is the sum of the Constitutional Court’s analysis of the
Extradition Act. The logic of the Constitutional Court appears to
be that:
• Mr Gavrić may be excluded under section 4(1)(b) of
the Act, but he is still protected by the right of non-
refoulement.
• His challenge to section 4(1)(b) must therefore fail,
because that section read with section 2 of the Act does
not allow him to be sent to face inhumane persecution in
Serbia.
• The question of whether Mr Gavrić will, in fact, face
inhumane persecution – whether he would, aside from
his exclusion, have a meritorious asylum claim – falls to
be determined in his extradition proceedings.
Were this case to be considered in vacuo, the above reasoning
may have been satisfactory. It may be that in the context of Mr
Gavrić’s facts, with a long-delayed extradition enquiry looming
in the background, the above approach appeared to be an elegant
solution. No court is swift to come to the assistance of those
seen as fugitives from justice. But Gavrić sets a precedent for all
persons seeking asylum. And the Constitutional Court appears
to have forgotten that the vast majority of asylum seekers are not
also facing extradition proceedings.
Consider the following hypothetical: A political dissident
fleeing extra-judicial execution at the hands of her government

25
flees to South Africa and crosses the border irregularly (despite
being in possession of a passport and other resources needed to
enter South Africa legally). When appearing before an RSDO, the
RSDO finds that she is excluded in terms of section 4(1)(h). This
finding is then upheld by the RAB.
What happens then? The dissident cannot continue under
the Act to seek asylum, and cannot be sent out of South Africa
to face her death. Where and how is the dissident to have the
merits of her claim to non-refoulement determined? And what are
her rights and status in South Africa pending this determination?
Indeed, what are her rights and status if she succeeds in proving
that she faces persecution at home?

26
6. Solutions in other legislation?
6.1 The Extradition Act 67 of 1962
The prima facie answer, in light of Gavrić, may be to look to the
Extradition Act.
But there are a range of insurmountable difficulties with such
an approach. The Extradition Act only applies to persons “accused
or convicted of an extraditable offence”26
within the foreign State
concerned.Magistratesholdingextraditionenquiriesarerequired
to consider only whether the persons before them are “liable
to be surrendered to the foreign State concerned and, in the case
where such person is accused of an offence, that there is sufficient
evidence to warrant a prosecution for the offence in the foreign
State concerned”.27
In practice, evidence of such an accusation or
conviction almost always comes via a formal extradition request
made by the foreign State in question.28
But most asylum seekers, like the dissident hypothesised
above, are not accused or convicted of crimes, nor the subjects of
extradition requests. In fact, it is unlikely that even 1% of asylum
seekers are also the subject of extradition requests. Mr Gavrić is
the exception, not the rule.
In the absence of such prerequisites, extradition under
the Extradition Act may not lawfully proceed, nor even makes
any conceptual sense. Extradition law itself “concerns how any
person – which includes South African nationals – may be forcibly
surrendered from South Africa to another country to face criminal
charges or serve sentences”.29
It is not intended to serve as a means
26
Section 3 of the Extradition Act.
27
Section 10(1) of the Extradition Act. See also section 12(1) of the Extradition Act.
28
29
Khan (ed.) Immigration Law in South Africa (Juta) at 234. The chapter on extra-
dition, from which this quote is taken, was written by Adv. Anton Katz S.C. and the
author of this article.

27
‘On1January2020,theasylumseekercommunity
in South Africa received an unwelcome new
year’s gift: Wide-ranging amendments to the
RefugeesAct130of1998(“theRefugeesAct”) and
the regulations thereto which made significant
(and adverse) changes to the operation of the
asylum system. the practical effect of these
amendments is – or will be, once the impact of
the COVID-19 pandemic recedes – to increase
greatly the numbers of asylum seekers who are
being excluded from asylum.’
‘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’
(Ruta Case 2019, para 26)
‘expect that thousands of foreigners will, over
the coming years, be excluded from asylum
under section 4 of the Refugees Act.’
‘The exceptional nature of
Article 1F suggests that
inclusion should generally be
considered before exclusion’
UNHCR Guidelines on International Protection No. 5: Application of the
Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status
of Refugees (“UNHCR Guideline 5”) at para 2

28
to ascertain what hardships a person may face in their country of
origin, nor to grant any person a valid basis to remain in South
Africa.
The Extradition Act does provide that the Minister of
Justice and Correctional Services (“the Justice Minister”) may
elect not to extradite a person—
“(iii) at all, or before the expiration of a period fixed by the
Minister, if he or she is satisfied that by reason of the
trivialnatureoftheoffenceorbyreasonofthesurrender
not being required in good faith or in the interests of
justice, or that for any other reason it would, having
regard to the distance, the facilities for communication
and to all the circumstances of the case, be unjust or
unreasonable or too severe a punishment to surrender
the person concerned; or
(iv) if he or she is satisfied that the person concerned will
be prosecuted or punished or prejudiced at his or her
trial in the foreign State by reason of his or her gender,
race, religion, nationality or political opinion”.30
But the protections these sections offer are not comparable to
the equivalent protections in the Refugees Act. Section 11(b)(iii)
creates a wide discretion not to surrender a person if it would be
“unjust or unreasonable or too severe a punishment”. But the Justice
Minister or magistrate31
does not (textually) have to consider the
criteria set out in section 3 of the Refugees Act. And the focus
30
Substantively-similar provisions appear at section 12(2)(c)(i) and (ii) of the
Extradition Act, save that it applies to extraditions to associated States and allocated
the power to magistrates. As regards the relationship between sections 10 and 12 of
the Extradition Act, see Director of Public Prosecutions, Cape of Good Hope v Robinson
2005 (4) SA 1 (CC) (“Robinson (CC)”) at para 9.
31
Depending on whether the extradition is to a foreign or associated State, as
defined in section 1 of the Extradition Act.

29
is on the punishment the person faces during or as a result of
the criminal sanction he or she is extradited to face, not on the
persecution he or she may face outside the criminal system.
Section 11(b)(iv) of the Extradition Act does focus on the
prejudice the foreign person may face, but only at “his or her trial
in the foreign State”. Again, forms of prejudice external to the trial
are apparently not included. Also omitted is protection against
“external aggression, occupation, foreign domination or events
seriously disturbing or disrupting public order in either a part or
the whole” of the country of origin, as provided for in section 3(b)
of the Refugees Act.
And the criteria set out in section 11(b)(iv) of the Extradition
Actarelessextensivethanthoseinsections2and3oftheRefugees
Act. Section 11(b)(iv) refers to “gender, race, religion, nationality
or political opinion”. But sections 2 and 3 of the Refugees Act refer
to “race, religion, nationality, political opinion or membership of
a particular social group” (emphasis added). This final category
expands the protection provided by the Refugees Act far beyond
that of the Extradition Act, to include, inter alia, discrimination
on the basis of sexual orientation, disability, class, or caste.32
Lastly, there are serious but unanswered practical questions.
Who is to ensure that the excluded asylum seeker appears before
the magistrate, or the Justice Minister? Most asylum seekers lack
the knowledge or resources to do so. 33
Even the Justice Minister
32
See the definition of “social group” in section 1 of the Refugees Act; Fang v Refu-
gee Appeal Board 2007 (2) SA 447 (T) at 458B-460E.
33
Gavrić at para 70:
“It must be noted, as the amicus has mentioned, that many of the applicants for
asylum who deal with RSDOs are unrepresented, vulnerable and lacking in the
necessary language and legal skills to have a meaningful engagement with them
and ensure that the RSDOs’ adhere to their duties. It is therefore imperative
that RSDOs fulfill their functions properly. This is especially the case given the
catastrophic consequences that can result if an application for asylum is wrongly
rejected. An RSDO’s failure to properly exercise her powers can have devastating
consequences for the applicant concerned.”
See also Ruta at para 48; Union of Refugee Women and Others v Director: Private

30
and the magistrates in question may not know what to do, given
that this is such a novel problem. What tools or procedures are
to be used to ensure that the excluded person appears at the
appropriate time and place? The Extradition Act envisages that
this is to occur via arrest34
– is that to be the norm for excluded
persons?
Andwhatrightsordocumentationdoexcludedpersonshave,
either during the determination process or if successful in their
claim? The Constitutional Court has recognised that a person left
undocumented faces unacceptable threats to their right to non-
refoulement, as they would be perceived as being ordinary illegal
foreigners and would be vulnerable to deportation in terms of
section 32(2) of the Immigration Act, which provides that “illegal
foreigners shall be deported”.
InSaidi,35
theConstitutionalCourtheldthatanasylumseeker
who had been finally rejected in terms of the Refugees Act, but
who took the decisions against him or her on judicial review, had
to be granted extensions of his or her asylum seeker visa pending
the resolution of the litigation. As held by the Constitutional
Court in Saidi at paragraph 13, “[t]emporary permits issued in
terms of [section 22 of the Refugees Act] are critical for asylum
seekers. They do not only afford asylum seekers the right to sojourn
in the Republic lawfully and protect them from deportation but
also entitle them to seek employment and access educational and
health care facilities lawfully”.
The Constitutional Court went on to state:
“The respondents’ interpretation exposes asylum seekers to the
Security Industry Regulatory Authority and Others 2007 (4) SA 395 (CC) (“Union of
Refugee Women”) at paras 28-29.
34
35
Saidi and Others v Minister of Home Affairs and Others 2018 (4) SA 333 (CC)
(“Saidi”).

31
real risk of refoulement in the interim whilst the outcome of
judicial review is pending. Without a temporary permit, there
is no protection. This runs counter the very principle of non
refoulement and the provisions of section 2 of the Refugees
Act. It is cold comfort to say – between the exhaustion of
internal remedies and the outcome of judicial review – an
asylum seeker may seek and obtain interim protection by
means of an urgent application to court. Litigation being
what it is, there is no guarantee that the approach to court
will succeed; the urgent application may be dismissed on a
technicality or any other legally cognisable basis. That would
then expose the asylum seeker to the risk of return. What
then of the notion of non-refoulement against one’s will “in
any manner whatsoever”? South Africa may be saying it is
not opposed to its administrative refusal of an asylum seeker’s
application being challenged by way of judicial review. But it
will be making it possible for refoulement to take place in the
interim. That is a breach of the principle of non-refoulement.”36
The Extradition Act does not deal with any of these issues, because
it is not designed to provide a basis on which foreign persons
can remain in South Africa. It deals only with the processes by
which persons (even South African citizens) in South Africa can
be surrendered to a different State to face criminal charges or
sanctions.
36
Saidi at para 30. Emphasis added. And at para 18 of Saidi, the Constitutional
Court held:
“This interpretation [of ensuring asylum seekers in review applications have vi-
sas] better affords an asylum seeker constitutional protection whilst awaiting the
outcome of her or his application. She or he is not exposed to the possibility of
undue disruption of a life of human dignity. That is, a life of: enjoyment of em-
ployment opportunities; having access to health, educational and other facilities;
being protected from deportation and thus from a possible violation of her or his
right to freedom and security of the person; and communing in ordinary human
intercourse without undue state interference.”

32
Aside from the Refugees Act, only one other statute provides
a basis on which foreign persons may live, work, study and exist
securely in South Africa: The Immigration Act.
6.2 The Immigration Act
But the Immigration Act suffers from similar problems. It, too, is
not designed to adjudicate the potential persecution a claimant
may be facing in a foreign country.
The raison d’etre of the Immigration Act is to meet the needs
of South Africa; this is very different to granting residence to a
foreigner based on the needs of the foreigner, as the Refugees Act
does.
When being deported under section 34 of the Immigration
Act, a foreigner must be allowed to come before a court in which
he or she may challenge the deportation.37
This is hardly an ideal
forumforadetainedandvulnerableasylumseekertodemonstrate
why he or she fled from his or her country of origin.
But even if the court in question upholds the foreigner’s right
tonon-refoulement,andoverturnsthedeportationorder,thecourt
has no power to grant that foreigner any form of documentation.
The foreigner will therefore be left undocumented, and thus
still be liable to being arrested and detained for the purposes
of deportation the next time he or she crosses paths with an
immigration officer or other public official. The concerns set out
in Saidi (above) remain unaddressed.
The structure of the Immigration Act assumes that if
deportation is not to be granted, it is because the foreigner
in question already has a right to some or other form of
documentation which regularises his or her stay in South Africa.
The Immigration Act allows foreigners to sojourn in South Africa
37
Lawyers for Human Rights v Minister of Home Affairs and Others 2017 (5) SA 480
(CC).

33
primarily by granting them either a temporary residence visa
(“TRV”) or a permanent residence permit (“PRP”).
TRVs come in a variety of specific forms, as listed in sections
11-23 of the Immigration Act. They include study visas, work
visas, relative’s visas, and so on. Applicants for such visas must
demonstrate that they meet the criteria for each visa (such as
confirmation by an employer that a job offer has been made to
the applicant), and the rights granted to each foreigner depends
on the nature of their TRV (relative’s visa holders, for example,
may not work).38
Section 23 of the Immigration Act does provide for an
asylum transit visa, but such visa may be “valid for a period of
five days only”, and exists solely to allow persons seeking to apply
for asylum to travel to RROs within South Africa. They are not
a basis on which any person may remain in South Africa for a
lengthy period of time.
PRPs, although they provide permanent rights (and in fact
are only one step below citizenship), are likewise only available to
persons who meet the prerequisites for permanent residency –
none of which turn on proof of persecution. Recognised refugees
may, under section 27(d) of the Immigration Act, apply for PRPs,
but persons excluded under section 4 of the Act are not, of course,
refugees. So this door remains closed to them.
Khan makes the following suggestion:
“What is the status of a foreign national with no visa or permit
undertheImmigrationAct,butwhocannotbedeported(inlight
of Mohamed) or extradited (in light of Tsebe) and who remains
in South Africa? To be left undocumented is an unsatisfactory
38
And visa applications require production of a valid passport, which most asylum
seekers lack: see Ahmed and Others v Minister of Home Affairs and Another 2019 (1)
SA 1 (CC) (“Ahmed”) at para 63.

34
answer, as it would expose the foreign national to endless
cycles of the prejudices commonly suffered by undocumented
foreigners, such as being arrested for deportation. The
circumstances of such a foreigner appear to be so exceptional,
and are not otherwise catered for in the Immigration Act or
the Extradition Act, that the best answer appears to be that
they could and ought to be granted an exemption in terms of
section 31(2)(b) of the Immigration Act until such a time as a
more permanent solution can be found (for example, that they
depart from South Africa voluntarily).”39
Section 31(2) of the Immigration Act provides:
“Upon application, the Minister may under terms and
conditions determined by him or her-
. . . .
(b) grant a foreigner or a category of foreigners the rights of
permanent residence for a specified or unspecified period
when special circumstances exist which would justify
such a decision: Provided that the Minister may-
(i) exclude one or more identified foreigners from such
categories; and
(ii) for good cause, withdraw such rights from a foreigner
or a category of foreigners”.
Section 31(2) thus grants the Minister of Home Affairs (“the
Home Affairs Minister”) a broad power, exercisable in “special
circumstances”, to allow persons to sojourn in South Africa. As
a means of regularising the presence of excluded asylum seekers
in South Africa, section 31(2)(b) has some advantages. It is an
established legal process, made to the Home Affairs Minister,
39
Khan at 243.

35
which would allow the Minister to determine the merits of a
claimant’s fears of persecution, and provides a recognisable status
and form of documentation to a successful applicant. It has
been utilised, for example, to provide a legal status to categories
of persons such as Zimbabwean or Basotho migrants in South
Africa.
But it equally has disadvantages. There is no requirement
that the Home Affairs Minister should consider persecution as
a basis on which he or she should exercise this power. Pending
a determination by the Minister, the rights or status of claimants
would be unclear, and claimants would be left undocumented.
And if successful, claimants would be granted “the rights of
permanent residence” – which are superior to those of recognised
refugees. This is an incongruous outcome.
Khan and Schreier also wrote prior to the judgment of the
ConstitutionalCourtinGavrić,andpriortothe2020amendments.
They hence saw excluded asylum seekers to be “exceptional” – as
they were at that time. This situation has changed. It is reasonable
now to expect that thousands of foreigners will, over the coming
years, be excluded from asylum under section 4 of the Refugees
Act. Exemptions intended for “special circumstances” may not be
a sufficient solution.
At most, an approach centred on exemptions under the
Immigration Act may be said to be better than the alternatives
(for the reasons dealt with above). But “better” is not the same
as “good”. Neither the Immigration Act nor the Extradition Act
contain the wide range of procedural protections afforded to
persons seeking asylum under the Refugees Act.
UndertheRefugeesAct,thedutytoascertainthefactsbehind
an applicant’s story rests equally on the applicant and on the
adjudicative person/body, who is required to take an inquisitorial

36
‘these [found to be excluded] persons will be
processed as illegal foreigners, and many will be
illegally deported to their countries of origin,
potentially to face death, torture,
sexual violence or other horrific consequences.
The constitutionality of these provisions
may be challenged, but such challenges
take years even if successful.’

37
role.40
Asylum seekers are, unless there are good reasons to the
contrary, to be given the benefit of the doubt in assessing their
stories.41
To be granted asylum, an applicant must show only a
reasonable possibility of persecution.42
This is a lower and more
forgiving standard of proof than that of the usual civil standard
of a balance of probabilities.43
Confidentiality of evidence is
protected, subject to limited exceptions.44
These features have hitherto been unique to refugee status
determination procedures under the Refugees Act. A foreigner
seeking to present his or her story and defend his or her claim
to non-refoulement in the absence of these protections will be
seriously disadvantaged.
Perhaps these protections will be held by the courts to apply
to the excluded asylum seeker in whichever forum or process will
determine their merits of their claim to non-refoulement. But it
is a disturbingly large assumption that the courts will import the
whole panoply of refugee and asylum seeker rights into a different
statutory context.
40
FNM v The Refugee Appeal Board 2019 (1) SA 468 (GPD) (“FNM”) at paras 45-
51.
41
Mwamba v Chairperson of the Refugee Appeal Board and Others [2017] ZAWCHC
16 (28 February 2017) (“Mwamba”) at paras 15 and 44.
42
See Tantoush v Refugee Appeal Board and Others 2008 (1) SA 232 (T) (“Tantoush”)
at para 97.
43
See also the UNHCR Handbook at para 203:
“After the applicant has made a genuine effort to substantiate his story there
may still be a lack of evidence for some of his statements. As explained above
(paragraph 196), it is hardly possible for a refugee to ‘prove’ every part of his
case and, indeed, if this were a requirement the majority of refugees would not
be recognized. It is therefore frequently necessary to give the applicant the benefit
of the doubt.”
44
Section 21(5) of the Refugees Act.

38
7. Inclusion before exclusion
under the Refugees Act
It follows from the above considerations – and is perhaps trite –
that determinations of whether an asylum seeker qualifies as a
refugee under section 3 of the Refugees Act should best be done
in terms of the Refugees Act. Only under the Refugees Act are
there dedicated and experienced Refugee Status Determination
Officers, acting (in theory) independently, protectively, and
inquisitorially. Only under the Refugees Act are principles such
as the lower standard of proof, or the confidentiality of evidence,
well-established. Only under the Refugees Act are persons
awaiting a status determination given effective interim protection,
in the form of section 22 visas.
Gavrićmakesitplainthatafterapersonisheldtobeexcluded,
such an approach is not permissible. As the Constitutional Court
held, the risks to Mr Gavrić’s life are ones “which the Executive will
be compelled to determine when it considers Serbia’s application
for his extradition”.45
The door to further assessments under the
Refugees Act was closed.
But perhaps refugee status determinations may occur before
exclusion decisions are made. This is known as the “inclusion
before exclusion” approach, and is viewed by Khan and Schreier
as the “preferable” approach.46
In sum, an RSDO will first consider
whether an asylum seeker meets the requirements for refugee
status listed in section 3 of the Refugees Act, and only thereafter
(if necessary) make a determination concerning exclusion under
section 4.
The UNHCR also favours such an approach, though not
45
Gavrić at para 30.
46
Khan and Schreier at 108.

39
inflexibly, stating in UNHCR Guideline 5:
“Given the grave consequences of exclusion, it is essential that
rigorous procedural safeguards are built into the exclusion
determination procedure. Exclusion decisions should in
principle be dealt with in the context of the regular refugee
status determination procedure and not in either admissibility
or accelerated procedures, so that a full factual and legal
assessment of the case can be made. The exceptional nature
of Article 1F suggests that inclusion should generally be
considered before exclusion, but there is no rigid formula.”47
This precise issue was raised by the Constitutional Court in
its request for written submissions, and Mr Gavrić, relying on
Chipu, pushed for an inclusion-before-exclusion approach. The
Court, however, took a somewhat contradictory stance. First, it
distinguished the South African domestic approach from that of
the UNHCR, holding:
“The Handbook, as was noted in Chipu, suggests that it is
preferable for an RSDO to consider the risk of persecution
before making an exclusion decision. The answer lies in the
Act.
. . . .
The proportionality inquiry discussed in the Handbook is, at its
heart,anattempttoensurethatasylumseekersarenotexcluded
and left to face grave persecution due to minor offences; an
attempt to ensure that the harms suffered by an applicant are
not disproportionate to the crime they have committed. This
47
UNHCR Guideline 5 at para 31. Emphasis from the original. The Guideline con-
tinues in relevant part:
“Exclusion may exceptionally be considered without particular reference to in-
clusion issues (i) where there is an indictment by an international criminal tri-
bunal; (ii) in cases where there is apparent and readily available evidence point-
ing strongly towards the applicant’s involvement in particularly serious crimes,
notably in prominent Article 1F(c) cases, and (iii) at the appeal stage in cases
where exclusion is the question at issue”.

40
is necessary because there is no proportionality inquiry built
into the wording of the Convention.
The situation under the Act, however, is vastly different due to
the provisions of section 2 and is an important consideration in
what test is needed under section 4(1). Whilst a test that takes
the risk of persecution into account may be necessary under the
Convention to ensure that an asylum seeker’s life is not placed
at risk for a minor offence, the Act builds this “proportionality”
inquiry into section 2 and the non-refoulement provisions.
However, this inquiry does not occur at the stage when the
RSDO decides the asylum application but rather at the stage
when the asylum seeker is facing extradition.
Section 2 creates a stop-gap measure that ensures that no
person will be returned to any country where their life,
physical safety or freedom will be threatened, irrespective of
whether they have been excluded under section 4. Thus, to
require that an RSDO make a determination under section
3 prior to making an exclusion decision in order to factor the
risk of persecution into the exclusion decision is tantamount
to rendering an inquiry under section 2 superfluous. For these
reasons, the applicant’s view of Chipu must be rejected”.48
It is difficult to read the underlined dicta above as anything other
than a rejection of the inclusion-before-exclusion approach. But
the Constitutional Court went on to hold:
“Courts, and decision-makers, should favour a flexible
approach that allows for an exclusion decision, irrespective
of whether there has been a section 3 decision. Conversely,
the fact that there has been a section 3 decision granting an
applicant asylum status, should not bar an applicant from
being excluded at a later stage. This flexibility should not
detract from an applicant’s right to have due consideration
48
Gavrić at paras 34-38.

41
given to their application. An application process should not
be truncated solely on the basis that the applicant falls to be
excluded under section 4(1).”49
It thus appears that it may still be permissible (albeit not
mandatory) for RSDOs to carry out refugee status determinations
prior to making exclusion findings. If so, such an approach would
go a significant way towards resolving the problems outlined
above. It would mean that excluded persons who have been found
not to have meritorious claims under section 3 of the Refugees
Act could be safely deported, without violating the right of non-
refoulement.
But problems remain. RSDOs are already generally
overburdened with duties. If it is not mandatory to carry out
status determinations, and/or if the Department does seek via the
2020 amendments to reduce demands on its capacity, why would
RSDOs do so? If they do not, what is the remedy or procedure
available to the excluded person who wishes to have their fears of
persecution assessed? As set out above, there are no easy answers
to this question.
Even if RSDOs do carry out prior refugee assessments,
what of those persons who do have meritorious claims? What
is their legal status in South Africa? What rights do they have?
Can they study, or work, as refugees can? What documentation
can or should they be provided with to demonstrate this status?
Such persons cannot humanely or constitutionally be left
undocumented or without a means to provide for themselves.50
They must therefore be given effective protection – a desirable
outcome, but one which does rather beg the question: What then
was the point of the exclusion of the asylum seeker at all?
49
Gavrić at para 44
50
Saidi at para 30; Home Affairs & Others v Watchenuka & Another 2004 (4) SA 326
(SCA) at para 32.

42
‘as Ruta states in no uncertain
terms, “[t]he ‘shield of non-
refoulement’ may be lifted only
after a proper determination [of
the merits of an asylum seeker’s
claim] has been completed”
Ruta Case 2019, para 54

43
8. Conclusion
A conclusion should provide a satisfactory answer to the question
posed based on existing law. Unfortunately, that appears not to be
possible here. There does not seem to be any clear, pragmatic,
or legally tenable way to deal with large numbers of excluded
asylum seekers, who may not be returned from South Africa to
their countries of origin.
Instead,thisarticleprovidesasummaryandaprognostication.
The summary:
• The Constitutional Court, in Gavrić, was correct to
recognise that all persons (excluded or not) possess the
right of non-refoulement. Those fearing gross human
rights violations should not under any circumstances be
compelled to return to their countries of origin.
• But the Court erroneously viewed exclusion through the
lens of Mr Gavrić’s facts, and in so doing set a precedent
with potentially vast unforeseen consequences.
• Itheld,withoutmuchinthewayofanalysisorexplanation,
that excluded persons could defend their right to non-
refoulement in extradition processes.
• But almost no asylum seekers are also the subject of
extradition proceedings.
• In the absence of an extradition request (indeed, even with
an extradition request), the provisions of the Extradition
Act are ill-suited to adjudicate whether or not a person
fears persecution as contemplated in section 2 of the
Refugees Act.
• The Extradition Act is simply not intended to serve this
purpose.
• Nor do the provisions of the Immigration Act assist, save
for the broad powers of the Home Affairs Minister to

44
provide permanent residence exemptions under section
31(2) of that Act.
• RSDOs may still carry out prior status determinations,
which is of some assistance, but such assessments are
neither mandatory nor do they provide solutions for
persons who do have valid fears of persecution in their
country of origin and fall under the exclusion provisions.
• This problem was somewhat academic – until the 2020
amendments greatly broadened the ambit of section 4.
This will almost certainly increase the numbers of asylum
seekers found to be excluded by orders of magnitude, and
make the resolution of this problem a pressing one.
And now the prognostication:
• Subject only to the passing of the COVID-19 pandemic,
the Department will begin implementing the expanded
grounds for exclusion that were created by the 2020
amendments.
• First dozens, then hundreds, and then more asylum
seekers will be found to be excluded by RSDOs and the
RAA.
• Many of these excluded persons will not be aware that
they remain protected by the right of non-refoulement.
RSDOs, already stretched beyond capacity, will resist
having to carry out prior status assessments.
• Nor–atleastinthebeginning–willtheDepartmentadvise
asylum seekers of what their rights are if they are found
to be excluded. Instead, these persons will be processed as
illegal foreigners, and many will be illegally deported to
their countries of origin, potentially to face death, torture,
sexual violence or other horrific consequences.

45
• The constitutionality of these provisions may be
challenged, but such challenges take years even if
successful.
• In the meantime, an asylum seeker will approach the
courts to prevent his or her deportation. Initially, such
court challenges may seek to review the finding that the
asylum seeker in question was excluded.
• But eventually an asylum seeker who was correctly
excluded will seek a way to vindicate his or her right to
non-refoulement.
• As explained above, there is no easy process, statute or
forum within which this can occur. At best, years of
litigation will ensue.
• And during these years, the numbers of undocumented
and unprotected asylum seekers will continue to grow.
They are the true victims of the problem created by the
2020 amendments and by Gavrić.

46
SIHMA
The Scalabrini Institute for Human Mobility in Africa (SIHMA)
was established in Cape Town, South Africa, in 2014.
Our Vision is an Africa where the human rights of people on the
move are ensured and their dignity is promoted.
Our Mission is to conduct and disseminate research that
contributes to the understanding of human mobility and informs
policies that ensure the rights and dignity of migrants, asylum
seekers and refugees in Africa.
We disseminate the findings of our research through our Journal
AHMR (African Human Mobility Review), social media and our
website www.sihma.org.za.

47
Scalabrini Network
SIHMA is part of the Scalabrini International Migration Network (SIMN),
and joins an existing Network of Scalabrini Study Centres around the globe:
CSER (Centro Studi Emigrazione Roma), established in 1964 in Rome (Italy)
Journal: Studi Emigrazione
www.cser.it
CIEMI (Centre d’Information et Études sur les Migrations Internationales),
established in 1971 in Paris (France)
Journal: Migrations Société
www.ciemi.org
CMS (Center for Migration Studies of New York,) established in 1969 in New York (USA)
Journal: International Migration Review (IMR)
and Journal on Migration and Human Security (JMHS)
www.cmsny.org
SMC (Scalabrini Migration Center,) established in 1987 in Manila (Philippines)
Journal: Asian and Pacific Migration Journal (APMJ)
www.smc.org.ph
CEM (Centro de Estudios Migratorios), established in 1985 in São Paulo (Brazil)
Journal: Travessia
www.missaonspaz.org
CEMLA (Buenos Centro de Estudios Migratorios Latinoamericanos),
established in 1985 in Buenos Aires (Argentina)
Journal: Estudios Migratorios Latinoamericanos (EML)
www.cemla.com
Among our partners: CSEM (Centro Scalabriniano de Estudos Migratórios) in Brasilia
(Brazil); Journal: Revista Interdisciplinar da Mobilidade Humana (REMHU); www.csem.org.br
CEMLA, Buenos Aires
CIEMI, Paris
SMC, Manila
CSER, Rome
CEM, Sao Paolo
CMS, New York
SIHMA, Cape Town

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