CAPE TOWN, Western Cape — The South Africa Constitutional Court has officially confirmed a Western Cape High Court ruling that declares key provisions of the Refugees Act unconstitutional, bringing an end to a long-running legal battle over the nation’s asylum system. The landmark judgment strikes down restrictive amendments that rights groups argued unlawfully obstructed vulnerable asylum seekers from accessing the refugee system and having their claims fairly heard.
The case was initially brought forward by the Scalabrini Centre and other human rights groups against the Minister of Home Affairs. The applicants challenged recent amendments to the Refugees Act 130 of 1998—specifically Sections 41F, 41H, 41(1), 41(2), and 211B—which were introduced in 2020. These amendments effectively required asylum seekers to enter the country as legal entrants to qualify to apply for asylum, a provision critics argued was used as an instrument to block potentially valid claims.
In handing down the judgment, the Constitutional Court ruled that Section 211B permits an arbitrary exercise of public power. The court found that the section subjects vulnerable asylum seekers to additional bureaucratic processes without clear standards, guidance, or consequences, thereby failing the test for rationality.
Furthermore, the court highlighted the severe impact the provisions had on children. Under the challenged laws, a child’s asylum claim could be excluded from the system due to a parent’s procedural non-compliance. The court ruled that this occurred without an individual assessment of the child’s circumstances and without proper regard for the child’s best interests, directly contravening Section 28 of the Constitution. Because the respondents did not seek a suspension of the declaration of invalidity or a reading-in order, the court immediately confirmed the invalidity of the sections.
Immigration lawyer Craig Smith noted that the timing of this constitutional invalidity is highly significant, arriving during a period of intense national scrutiny regarding migration management. Smith pushed back against recent political rhetoric, including a briefing by the secretary-general of the ANC, which accused the courts of overreaching and blamed the judiciary for the chaotic state of migration in the country.
According to Smith, the issue does not lie within the judiciary, but rather falls squarely on the Department of Home Affairs and the government. He emphasized that when enforcement actions are taken against parents, children inevitably suffer the consequences, making the court’s focus on child protection crucial.
Smith also addressed the international legal context of the ruling. He explained that international refugee law, which stems from post-World War II conventions, establishes that individuals facing persecution based on race, sexual orientation, political beliefs, nationality, religion, gender, or war have a fundamental right to seek shelter. Prior to the 2020 amendments, South Africa’s laws aligned with this global standard by allowing individuals to apply for asylum regardless of their legal entry status. The Constitutional Court’s ruling has now restored that position.
A major concern highlighted during the legal battle was the principle of non-refoulement—the international law practice of not returning asylum seekers to a country where they face persecution. Smith warned that making assumptions about asylum seekers without proper determination by a dedicated refugee status determination officer carries catastrophic risks, including the potential loss of life.
With the unconstitutional provisions struck down, undocumented individuals can now approach refugee centers to apply for asylum. However, Smith warned that this could create a bottleneck if the government remains reactive rather than proactive. While the Minister of Home Affairs recently confirmed the introduction of 300 additional immigration officers, Smith questioned if the measures are too late.
To prevent an absolute blockage at the refugee centers, Smith urged the Minister of Home Affairs to seriously consider granting new amnesties for vulnerable populations, specifically Zimbabweans and Malawians. He pointed to the 2009 amnesty for Zimbabweans as a successful precedent that brought underground migration above ground, transforming it into a legal matter. Those who do not take advantage of such an amnesty would then be subject to standard enforcement provisions under immigration laws.
As lobby groups continue to organize marches and public anxiety around immigration remains high, Smith stressed that the recent complaints from groups like the NCA underscore the urgent need for the government to take pragmatic, proactive steps to manage the asylum system and protect human rights.
