The Constitutional Court re-examined section 7(2) of the Promotion of Administrative Justice Act which creates an obligation on applicants for the court review of an administrative decision to exhaust all internal remedies first. The obligation to exhaust internal remedies should not be rigidly imposed nor used by administrators to frustrate an applicant’s efforts to review the action. Section 7(c) exempts a person from the obligation in exceptional circumstances if it is in the interests of justice to do so.

The requirement to exhaust internal remedies must not serve to shield the administrative process from judicial scrutiny nor frustrate an applicant who, in good faith, attempts to comply with the requirements.

In this case the applicant was challenging a refusal to grant him refugee status. It was alleged that while he was a member of the police force in Serbia he was involved in the assassination in 2000 of one of the leaders of the paramilitary unit which had carried out ethnic cleansing operations in the civil war in the 1990’s and his two bodyguards. He was living under a false identity in South Africa and was convicted of the murders in his absence.

Refugee status can be granted where the crimes committed are of a political nature. The applicant’s difficulty was that he denied involvement in the murders but said they were of a political nature. The applicant was denied refugee status. The question was referred back to the authorities to decide whether the applicant would be extradited to Serbia to face the consequences of his conviction.

The courts will normally expect all internal remedies to be followed because they do not want to be involved in every administrative dispute before it is finally resolved internally.

The case is Gavrić v Refugee Status Determination Officer, Cape Town and Others.