By Chiara Scissa
On 7 July 2026, the Constitutional Court of South Africa handed down a long-awaited judgment in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others 126/2025, where it declared the unconstitutionality and invalidity of several provisions introduced by the 2017 Refugees Amendment Act and enacted since 2020. In doing so, the Court confirmed what was previously found by the Western Cape High Court in May 2025.
This judgment represents a landmark case for several reasons. Most importantly, it may pave the way for bringing the right to asylum back to life in South Africa, where the provisions in place since 2020 have created “a system that provides sole discretion for acceptance or denial to an immigration officer, allowing such officers to prevent asylum seekers from submitting claims for asylum on the basis of immigration-related procedural errors” (para. 22). After offering a brief overview of its main content, this blog post encourages reflections on two main and interrelated respects highlighted by the judgment: 1) the systemic dysfunctionality of the Department of Home Affairs (DHA) not only in managing the asylum system but also in approaching the Courts and in respecting the rule of law; and 2) the climate of xenophobia that has contaminated the DHA’s arguments in front of the Constitutional Court.
The background: A brief overview of the Constitutional Court’s judgment.
In April 2024, the Scalabrini Centre of Cape Town launched an application in front of the Western Cape High Court against sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act, alongside regulations 8(1)(c)(i), 8(2), 8(3) and 8(4) of the Refugee Regulations as amended. These provisions specifically targeted the first stage of the asylum process and regulated access to the asylum procedure. Generally speaking, the asylum process in South Africa begins when a foreigner arrives at a designated port of entry, where they must claim asylum and may obtain an asylum transit visa issued under section 23 of the Immigration Act. This visa is valid for five days and allows the asylum seeker to reach the nearest Refugee Reception Office (RRO) among the five available in the country to formalize their asylum claim. Applications are then evaluated by a Refugee Status Determination Officer (RSDO), namely a DHA official who, among other duties, interviews asylum seekers and takes the first decision on whether to grant or deny refugee protection (see here for a detailed description of the asylum procedure and appeal stages in South Africa). It is relevant to note that the refugee status is the only protection status envisaged in the domestic legal order that asylum seekers can obtain, thus representing their sole option for protection.
The impugned provisions had the effect of restricting access to the asylum procedure on procedural grounds, meaning that asylum seekers could be prevented from accessing asylum and having their asylum claims assessed in their merit on the basis of mere procedural non-compliance. Since 2020, in terms of section 4(1), an asylum seeker was excluded from the refugee status if the RSDO had reason to believe that they had committed an offence in relation to travel or sojourn documents (section 4(1)(f)), or could not provide “compelling reasons” for crossing the border other than through a designated port of entry (section 4(1)(h)); or could not provide “compelling reasons” for failure to report to a RRO within five days of entry (section 4(1)(i)). In addition, according to section 21(1B), if an applicant was not in possession of an asylum transit visa, they must be interviewed by an “immigration officer” to ascertain whether “valid reasons” existed for not being in possession of such a visa. Finally, under regulation 8(3), if an asylum seeker failed to produce a valid asylum transit visa upon arrival at an RRO, they must show “good cause” for their illegal entry or stay before being permitted to apply for asylum.
In September 2025, the High Court declared the impugned provisions unconstitutional and invalid. It referred the order to the Constitutional Court for confirmation while granting an interim order interdicting the deportation of foreigners who have expressed an intention to seek asylum until their asylum applications had been finally rejected on their merits.
Ten months later, in a unanimous judgment penned by Majiedt J with other seven judges concurring, the Constitutional Court held that the impugned provisions lack any meaningful statutory guidance as to 1) the definition of “good cause”; 2) the factors or criteria that must be satisfied to establish “good cause” or to meet the “valid” or “compelling” reasons requirements; and 3) which “immigration officer” must conduct interviews to evaluate “good cause” or “valid reasons” for non-compliance given the total silence of the law. Moreover, the contested norms had the effect of creating a pervasive system where the asylum seeker may have been interviewed multiple times by (potentially) different officers to respond to the same inquiry disguised as three separate tests respectively to show valid reasons for not being in possession of an asylum transit visa (section 21(1B)); good cause for illegal entry or stay (regulation 8(3)); and compelling reasons for entering South Africa other than through a designated port of entry or for failing to report to an RRO within five days of entry (sections 4(1)(h) and 4(1)(i)).
The Constitutional Court observed that this “absurdity” (para. 88) resulted in arbitrary and unconstrained discretionary power to immigration officers, who could discretionally decide to disqualify applicants from refugee status before their claims were substantively assessed, violating the principle of non-refoulement and other fundamental rights, including the right of appeal and of children (paras. 95-107). These findings were supported by all amici curiae (Helen Suzman Foundation; Amnesty International; Global Strategic Litigation Council for Refugee Rights; International Detention Coalition; UNHCR). UNHCR, in particular, observed that sections 4(1)(h) and (i) violate Article 31(1) of the 1951 Refugee Convention insofar as they exclude asylum seekers from enjoying protection on account of their irregular entry or presence, putting them at risk of refoulement (para. 35).
What is more, the Court found that these norms failed in rationality as they did not serve any legitimate government purpose and rather unveiled an arbitrary exercise of state power (para. 102). For all these reasons, the Court strikes down the impugned provisions due to “opacity, absurdity, unconstrained and unguided discretion and irrationality”.
The DHA’s systemic non-compliance of refugee and rule of law obligations.
Since the adoption of the Refugee Act in 1998, the DHA has been assigned the responsibility of managing the asylum system. In addition, it is deeply involved in the asylum procedure at first instance. RROs are run by DHA officials (namely RSDOs) with the aim to register asylum claims, interview asylum seekers and take the first decision on their asylum application. The DHA also regulates the first appeal stage in front of two quasi-judicial bodies – namely the Refugee Appeals Authority of South Africa (RAASA) and the Standing Committee for Refugee Affairs (SCRA), whose members are appointed by the Minister of Home Affairs.
Scholars and civil society organizations frequently denounce the persisting flaws impairing (access to) the asylum procedure within the DHA, affected by procedural unfairness; evident and systemic dysfunctionality in both evaluating asylum claims and in granting appeals of rejected asylum application; and failures in ensuring access to key procedural safeguards during the asylum procedure. There is also evidence that the enforcement of asylum provisions has been impaired by corruption, systemic delays and backlogs that keep asylum seekers in limbo for years if not decades.
These failures have been censored by domestic judges especially from the High Courts, who have deprecated DHA officials as being “incompetent”, “deplorable” and “showing blatant disregard for the law, dereliction of duty and bad faith” (See, Tafira 2006; Katsshingu, 2011; FNM, 2018). In Tshiyombo (2015), the High Court of Cape Town found systematic dysfunctionality within the DHA, “[…] which has resulted in its persistent failure or inability over a period of several years, and notwithstanding repeated judicial admonitions, to comply with its legal obligations in matters in which its decisions are taken on judicial review” (para 14).
In the present judgment, the Constitutional Court boldly criticized the “[…] remarkable gross ineptitude and egregious laxity” (para. 50) on the part of the DHA, which has procedurally handled the matter “in an atrocious fashion” (para. 50). Among “myriad further errors” that deserve “strong deprecation” (paras. 48-49), the Court blames the DHA for grounding their application on the wrong legal basis, an error that had direct implications for the assessment of the constitutionality of section 21(1B) in particular. Indeed, the Constitutional judges explained that, absent an appeal based on the right legal basis, the provisions that have been struck down by the High Court must be treated as pro non scripto, namely as if they had not been written in the first place. The judges concluded by accusing the respondents’ disrespect for procedural requirements as “matters of grave concern that should not be repeated” (para. 110), recalling that the State is the Constitution’s primary agent and must respect the law in full and at all times (See, Kirland, 2014).
The Constitutional Court’s position reiterates, therefore, that the DHA’s lamentable conduct is not confined to asylum matters, but directly affects the respect of the rule of law in South Africa. The DHA’s non-compliance with the Court’s rules adds to the Department’s intentional disregard for judicial orders, and tactics that cause delays, postponement, and interference in trial.
Xenophobic arguments in the matter before the Constitutional Court.
The Constitutional Court dedicated the last paragraph of its order to xenophobia, a persisting and compelling issue that is fueling growing violence and discrimination against foreigners as well as anti-migrant protests to demand that all irregular migrants leave the country. In particular, the Court recalled that the respondents’ counsel made extensive yet unfounded claims regarding Afghan and Bangladeshi nationals’ involvement in human trafficking in the country. The Court warned that these arguments not only undermine the integrity of the State’s case, but also introduce a “rhetoric that risks being perceived as xenophobic or racially charged” (para. 110). The Court deprecated the use of unsubstantiated and prejudicial submissions which risk legitimizing anti-migrant narratives.
The use of potentially xenophobic arguments in court room is the last piece of an increasingly worrying puzzle, where foreigners are used as a scapegoat for the rooted problems that South Africa is facing. This discriminatory narrative, backed up by xenophobic declarations by political leaders, contributed to the rise of anti-migrant organizations, which call for “clean-up” operations and massive deportations of foreigners from the country.
The Constitutional Court’s ruling surely contributes to breaking the loop of exclusion where asylum seekers have been trapped over the last six years. Yet, the concrete effects of this judgment are still to be seen, especially in light of social, legal, and administrative barriers still in place.
This article is part of the research project ERC 2022-STG Gatekeepers to International Refugee Law. – The Role of Courts in Shaping Access to Asylum (Grant Agreement n. 101078683).
Chiara Scissa, PhD, is a Postdoctoral Researcher at the Department of Political and Social Sciences at the University of Bologna. As part of the ERC StG project “Gatekeepers to International Refugee Law? – The Role of Courts in Shaping Access to Asylum” (ACCESS), she investigates the role of Courts in shaping the right to access asylum in Africa in the context of EU externalization policies.
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