JOHANNESBURG, Gauteng — The definitive Constitutional Court Refugees Act ruling has fundamentally reshaped South Africa’s asylum landscape, invalidating key legislative provisions that rights advocates argue unlawfully barred vulnerable individuals from seeking protection. The judgment confirms a Western Cape High Court decision, concluding a protracted legal dispute initiated by the Scalabrini Centre and allied rights organizations against the Minister of Home Affairs.
In its formal order, the apex court confirmed the invalidity of Sections 41F, 41H, 41(1), 41(2), and 211B of the Refugees Act 130 of 1998. The court also issued a punitive cost order, directing the respondents to pay the applicants’ legal fees jointly and severally, including the costs associated with employing two counsel.
Delivering the judgment, the court found that Section 211B specifically facilitates an arbitrary use of public authority. By imposing supplementary bureaucratic hurdles on vulnerable asylum seekers without providing clear guidance, standards, or consequences, the provision failed the constitutional test for rationality.
Furthermore, the justices highlighted the severe detrimental impact the challenged provisions had on minors. Under the struck-down laws, a child’s asylum application could be rejected from the system simply due to a parent’s procedural non-compliance. The court ruled that failing to conduct an individual assessment of the child’s circumstances violates the child’s best interests as mandated by Section 28 of the Constitution. Because the respondents did not request a suspension of this declaration of invalidity or a reading-in remedy, the court confirmed the invalidity with immediate effect.
The ruling arrives at a highly charged political moment. Just last week, the secretary-general of the ANC held a briefing where he pointed fingers at the judiciary for overreaching, blaming the courts for the chaotic management of migration in the country. However, immigration lawyer Craig Smith argues that the blame does not lie with the judiciary. According to Smith, the responsibility falls squarely on the Department of Home Affairs and the government to rectify the systemic failures that disproportionately harm vulnerable populations, particularly minor children who suffer most when enforcement actions are taken against their parents.
The constitutional challenge specifically targeted 2020 amendments to the Refugees Act. Those amendments effectively mandated that asylum seekers enter the country as legal entrants just to qualify to apply for asylum—a mechanism Smith describes as an instrument used to obstruct potentially valid claims.
Smith emphasized the critical international principle of *non-refoulement*, which prohibits returning asylum seekers to territories where they face persecution. He noted that determining refugee status is the dedicated role of a refugee status determination officer. Making assumptions instead of proper assessments carries catastrophic risks, including the loss of life, which would leave the government with “blood on its hands.”
Tracing the origins of international refugee law to the post-World War II era and the Universal Declaration of Human Rights, Smith explained that progressive constitutional democracies are signatories to conventions protecting those persecuted on the grounds of race, sexual orientation, political beliefs, nationality, religion, gender, or public disturbance and war. While some nations resort to satellite camps or outright entry bans, South Africa’s pre-2020 framework allowed individuals to apply for asylum regardless of their entry status—a fundamental right the Constitutional Court has now restored.
Smith criticized the government for its reactive rather than proactive approach, noting that the wheels of justice move slowly but would turn much faster if the Department of Home Affairs pragmatically promoted human rights. With the unconstitutional barriers removed, undocumented foreigners can now approach refugee centers to apply for asylum. Although the Minister of Home Affairs recently confirmed the deployment of 300 additional immigration officers, Smith questions whether this measure is too late to prevent a massive bottleneck at the refugee centers.
To avert a systemic collapse, Smith urged the Minister to seriously consider granting new amnesties for vulnerable groups, specifically Malawians and Zimbabweans. He referenced the successful 2009 amnesty for Zimbabweans, which brought underground migration above ground and into the legal framework, subjecting those who do not comply to standard enforcement provisions.
Smith noted that the Department of Home Affairs often operates on the flawed assumption that all foreigners are economic migrants seeking work. With lobby groups organizing marches and entities like the NCA voicing complaints, Smith stressed that the government must take pragmatic steps to address the elephant in the room and manage the asylum system effectively.