The Constitutional Court of South Africa has made a unanimous decision in the case of Scalabrini Centre of Cape Town v Minister of Home Affairs, confirming that certain sections of the Refugees Act are unconstitutional and invalid. The judgment, written by Justice Steven Majiedt, was handed down on July 7, 2026. The court ruled that asylum seekers can no longer be turned away merely because they entered the country irregularly, arrived without documents, or failed to report to a refugee reception office within five days.
The court's decision is based on the principle of non-refoulement, which states that a state may not send a person back to a place where they may be persecuted. This principle is enshrined in conventions that South Africa has signed. The court also criticized the Department of Home Affairs for litigating the matter poorly and making unsupported assertions linking certain nationals to human trafficking. The ruling has significant implications for asylum seekers in South Africa, who will now have their claims heard on their merits.
The judgment has sparked a mixed reaction, with some groups expressing concerns about the impact on the country's immigration system. The Department of Home Affairs has warned that it will be overwhelmed by the surge in applications, and there are already reports of long queues at refugee reception offices. In Gqeberha, an office with only three refugee reception officers has been reopened to new applicants, and appointments are stretching months ahead.
The government has been criticized for its handling of the situation, with some arguing that it has not done enough to explain the ruling to the public. The executive was rebuked by the court for litigating poorly, and it took almost 12 weeks from the judgment to the directive to implement the ruling. The government has been accused of allowing rumors and misinformation to spread, which has contributed to the tensions.
The ruling has also sparked concerns about the impact on law enforcement and the perception of the rule of law in South Africa. Some citizens have expressed frustration that the laws against illegal presence are not being enforced, and that the asylum seekers' appointment letters or permits seem to offer protection against arrest and deportation. However, the court has made it clear that the ruling does not legalize illegal presence, and that a person who does not claim asylum remains subject to the Immigration Act.
The government has a critical role to play in addressing the concerns of citizens and ensuring that the asylum system is efficient and effective. The executive needs to provide a rational answer to the question of why hundreds of men are queuing at refugee centers when they do not come from countries at war. The government should establish the facts about who is standing in those queues and from where, rather than relying on assumptions.
Ultimately, the court's decision is a reminder that the judiciary is a critical component of South Africa's democracy, and that it has a vital role to play in protecting the rights of all citizens, including asylum seekers. The government and the public must work together to ensure that the asylum system is fair, efficient, and effective, and that the rights of all individuals are respected and protected.
Key points
- The Constitutional Court of South Africa has ruled that asylum seekers cannot be turned away due to irregular entry.
- The ruling is based on the principle of non-refoulement, which states that a state may not send a person back to a place where they may be persecuted.
- The government has been criticized for its handling of the situation, including its slow response to implementing the ruling and its failure to explain it to the public.
