True Motives 84 (Pty) Ltd v Madhi and Others (543/2007) [2009] ZASCA 4 (3 March 2009)

Legality review — unreasonable delay — overlooking delay — section 172 of the Constitution — Gijima

Asylum seeker applications - effect of delay - relevance of criminal record in South Africa - overriding principle of non-refoulement

Delay does not impede right to asylum - only the Refugee Status Determination Officer is authorised to consider application merits - Immigrant Act must be read in harmony with the Refugees Act and international law

Criminal law and procedure – appeal by Director of Public Prosecutions in terms of s 311 of the Criminal Procedure Act 51 of 1977 – import of s 51(1) of the Criminal Law Amendment Act, 105 of 1997 (the 1997 Act) prior to its amendment – on appeal to it, high court concluding that it was bound by this Court's decision in S v Mahlase in which it was held that s 51(1) of the 1997 Act finds no application in circumstances where the rape victim was raped by two or more persons, if not all of the co-perpetrators are before the trial court and have not been convicted of rape – such conclusion constituting a question of law – appeal by Director of Public Prosecutions against such decision competent – appeal upheld and sentence imposed by trial court reinstated

 Immigration Act 13 of 2002 – section 49(1)(a) – lawfulness of detention of foreign national for illegal entry and stay in South Africa in contravention of Immigration Act 13 of 2002 – such detention is lawful and does not violate section 2 of the Refugees Act 130 of 1998 – the mere expression of an intention to apply for asylum does not trigger the protections in section 2 of the Refugees Act 130 of 1998 until good cause for the illegal entry and stay is shown – Refugees Act 130 of 1998 – section 21(1B) – requirement to show good cause for illegal entry and stay in South Africa is disjunctive to application for asylum – regulation 8(3) – requirement to show good cause for illegal entry into South Africa before being permitted to apply for asylum is consistent with Article 31 of the 1951 United Nations Convention Relating to the Status of Refugees – protection in section 2 of the Refugees Act 130 of 1998 begins when application for asylum has been made.

Stare decisis – whether high court can deviate from Constitutional Court decision – Constitution Seventeenth Amendment Act 2012 – Constitutional Court - highest Court in all matters – decisions binding on all Courts – decision in A v Minister of Home Affairs has settled the law - binding authority.