By Tamuka Chekero
South Africa’s asylum crisis reveals a growing gap between constitutional protection, administrative capacity and public confidence. Closing that gap requires more than changing procedures: it requires a state capable of implementing the law while protecting people seeking refuge. On 7 July 2026, South Africa’s Constitutional Court delivered a judgment with important consequences for people seeking asylum. In Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, the Court confirmed that procedural failures, including entering the country irregularly or reporting late, cannot automatically prevent someone from accessing an asylum process in which their claim can be assessed on its merits.
The judgment did not grant asylum to everyone who entered South Africa irregularly. It addressed a more fundamental question: should authorities prevent a person from seeking protection before properly considering whether returning them to their country of origin would expose them to persecution? By October, that legal question had become a public confrontation. A directive issued by the Department of Home Affairs to implement the judgment was withdrawn after eleven days. Refugee reception offices struggled to manage demand, protests disrupted access to services, and vehicles were set alight in Durban and Soweto.
Members of March and March, a Durban-based anti-immigration movement, physically blocked asylum seekers from entering the Durban Refugee Reception Office. On 29 October, the Gauteng High Court in Johannesburg was scheduled to hear a dispute concerning conflicting directives on the detention of undocumented foreign nationals seeking asylum. However, the full-bench hearing was postponed to 16–18 November 2026, prolonging uncertainty around the legal and political contestation over asylum seekers’ rights amid heightened political sensitivities ahead of the local government elections.
This is not simply a conflict between the courts and public opinion. It exposes a deeper problem: South Africa has struggled to translate its legal obligations into an administrative system that works and a public explanation that people can understand. As a result, a judgment about access to a legal process has become a focus for broader anxieties about unemployment, public services, immigration control and the state’s ability to govern. Asylum seekers, who have little influence over these debates, face the immediate consequences.
What the Constitutional Court decided
It is worth starting with the judgment, because much of the public argument has not. In Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, the Constitutional Court confirmed a 2025 Western Cape High Court ruling that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act, together with several provisions of the Refugee Regulations, are unconstitutional and invalid. Those provisions required asylum seekers who had entered through unofficial points to show ‘good cause’ before they could lodge a claim, and allowed claims to be disqualified before they were assessed on the merits.
The central principle is non-refoulement: the prohibition on returning a person to a place where they face the relevant risks of persecution or other prohibited harm. A person’s manner of entry does not, by itself, establish whether their claim for protection is genuine. The authorities must assess the substance of the claim rather than use procedural non-compliance as a substitute for that assessment.
The judgment nevertheless has limits. It does not automatically confer refugee status, permanent residence or citizenship. Applicants must still undergo the applicable status determination process, and the authorities retain responsibilities for managing immigration lawfully. The Department of Home Affairs has also rejected claims that the judgment amounts to blanket legalisation of foreign nationals.
A separate judgment, Director-General, Department of Home Affairs v Irankunda, concerning repeat asylum applications after an original claim has been finally determined, illustrates the distinction between accessing the process and obtaining protection through it. The two issues should not be conflated. Ensuring that people can lodge claims does not mean that every claim must succeed; equally, the need to assess applications does not justify excluding people before their protection needs have been considered.
This distinction has become difficult to sustain in public debate. Some critics interpret the judgment as an invitation to unrestricted entry, while others treat it as a guarantee that everyone who approaches a reception office will receive refugee status. Neither interpretation accurately captures the legal question.
From judgment to directive to confrontation
The immediate crisis emerged when Home Affairs attempted to implement the judgment. On 28 September, the department issued a directive instructing refugee reception offices to accept in-person applicants who expressed an intention to seek asylum, including people who had entered outside designated ports, lacked visas or had missed the five-day reporting period.
Within days, offices were swamped. On 6 October 2026, members of March and March shut down the Refugee Reception Centre on Durban’s Che Guevara Road. The following day, protesters blocked the entrance, with the group’s leader, Jacinta Ngobese-Zuma, declaring that ‘no foreigners will enter’ and dispersing thousands of asylum seekers. On 8 October 2026, police reported that 24 vehicles had been set alight in Durban and Soweto, and shops owned by foreign nationals were reportedly looted. A day later, a protest outside the Constitutional Court in Braamfontein turned violent, and police used rubber bullets to disperse the crowd.
These events intensified public concern about migration and raised questions about protecting already vulnerable people. On 9 October, the Director-General of Home Affairs withdrew the directive. The department said its offices had been overwhelmed and that officials faced risks and threats to public safety. It also stated that the directive had been issued without the knowledge of the Minister or other political office-bearers. The withdrawal did not remove the department’s obligation to comply with the Court’s judgment.
The sequence matters. The judgment was delivered in July, but the confrontation intensified when its implications became visible at reception offices in late September and early October. The state faced a practical challenge that required planning, staffing, communication and coordination. Instead, the attempted implementation exposed the system’s fragility and created an opening for competing interpretations of what the law required.
A court ruling can establish a legal obligation. Still, it cannot by itself provide reception staff, resolve backlogs, shelter people waiting for appointments, or explain a change in procedure to the public. These are responsibilities of government. When they are not adequately addressed, the gap between a legal principle and its practical implementation can become a source of public distrust.
March and March: grievance, tactics and information
Understanding the movement requires separating three things: the grievance, the tactics and the information on which both rest. March and March is a Durban-based organisation led by Jacinta Ngobese-Zuma. It first drew national attention in 2025. In Durban, its leader has said that Home Affairs ‘has a backlog, and what they should be doing is identifying real refugees’, and that those who do not qualify ‘should be sent back at the border’. Another figure in the same milieu, Xolani Zuma, cited youth unemployment of over 47 per cent to argue that government resources are going to foreign nationals instead of struggling South Africans.
The grievance, in part, is real. The asylum system is under severe strain. The Refugee Appeals Authority reports a backlog of 161,000 cases, up from 133,582 in 2021, although more than 90,000 of these are inactive files whose applicants can no longer be traced. Funding constraints have hobbled efforts to clear them: the UNHCR funded ten of the 36 planned adjudicators. The top countries of origin for new applicants, including Ethiopia, the DRC, Somalia and Bangladesh, share no border with South Africa, which feeds the argument that many applicants are passing through other states and that a first safe country principle should apply. Frustration with a dysfunctional system is not in itself xenophobic, and it would be a mistake to treat every critic of the system as an enemy of refugees.
The tactic is another matter. Blocking access to a statutory process, and announcing that a category of people will not be allowed to enter it, replaces law with private enforcement. As the political analyst Zweli Ndevu put it, people have a constitutional right to protest, but “once that right infringes on other people’s right to get services, then it becomes a problem”. A refugee reception office is not a site where entitlement to protection is decided by the crowd outside. It is where an individual claim is registered, and where non-refoulement begins to operate in practice.
Then there is the information. The Inter-Ministerial Committee has warned against disinformation, and Home Affairs has said it will report disinformation about the directive to the Electoral Commission. According to Daily Maverick’s account, viral, unverified claims about the number of refugees and asylum seekers receiving social relief circulated close to the elections. At the same time, official figures show non-citizen applicants made up only a small fraction of what was claimed. Migration scholar Professor Loren Landau has argued that political actors across the spectrum have helped move once-fringe anti-immigrant rhetoric into the mainstream. If he is right, the street is not simply pressing the state from outside. Parts of the political class are moving with it.
The state caught between legal obligations and limited capacity
Home Affairs faces a difficult task. It must follow the court’s judgment, manage asylum applications and respond to public concerns about immigration. These responsibilities are connected, but they are not always easy to balance. The challenge is to maintain an orderly system without making it harder for people seeking protection to access it.
Following the withdrawal of the directive, the government indicated that it would seek further guidance from the courts and develop a more sustainable registration process. Proposals have included online registration, appointment systems, biometric data collection and changes to the location of reception services. These measures could improve administration. Appointments might reduce long queues, while registration documents could show that applicants approached the authorities. Better records could also help officials track applications and allocate resources.
However, registration is not simply a technical process. It is an encounter between people and the state. Applicants must navigate offices, forms, waiting periods and official decisions. Their ability to do so depends partly on the resources available to them. Digital registration, for example, may benefit people with smartphones, internet access, money for data and sufficient literacy. Others may struggle because of language barriers, homelessness or insecure living conditions. A system designed to improve efficiency could therefore exclude the very people it is meant to serve. The question is not only whether technology works, but also for whom it works.
Appointment systems raise similar concerns. Applicants can reasonably be expected to provide information and attend scheduled appointments. Yet missing an appointment should not automatically become another obstacle to having an asylum claim considered. The consequences must be clearly explained, proportionate and consistent with the law.
Proposals to move reception services to ports of entry or introduce a first safe country principle also require careful consideration. These are not merely administrative adjustments. They affect where people can seek protection and whether their claims receive proper consideration. Any changes must comply with the Refugee Convention, the 1969 Organisation of African Unity Refugee Convention and South Africa’s Constitution, including the principle of non-refoulement, which prohibits returning people to places where they face certain forms of serious harm.
Ultimately, a sustainable asylum system must balance administrative efficiency with meaningful access to protection. The state cannot achieve order by creating barriers that make protection practically inaccessible. How registration is designed will determine not only how efficiently officials work, but also how asylum seekers experience the state and their right to seek safety.
The people behind the procedures
Behind the legal arguments and administrative procedures are people whose everyday lives are shaped by decisions made in government offices and courtrooms. Reports from Durban described refugees and asylum seekers waiting outside reception facilities, sometimes without adequate shelter, as they tried to access the asylum system. During the October confrontations, people who had already spent long periods waiting faced further uncertainty as protests disrupted access to officials.
For asylum seekers, having a legal right to apply for protection does not necessarily mean they can exercise that right safely. A court judgment may prevent officials from excluding applicants because of certain procedural requirements. However, it cannot automatically protect people from intimidation, harassment or violence when they attempt to reach reception offices.
These difficulties extend into family life. Parents struggling to secure legal documentation may also find it difficult to arrange stable accommodation, support their children and maintain their livelihoods. Children experience these uncertainties alongside their parents, often without understanding why their families remain caught in prolonged administrative processes. Similarly, attacks on foreign-owned businesses demonstrate how hostility towards migrants can disrupt livelihoods, damage relationships and deepen everyday insecurity.
The situation becomes even more complicated for stateless people. Statelessness refers to a situation in which no country recognises someone as its national under its laws. Some Rohingya, for example, have experienced exclusion from citizenship in Myanmar. For such individuals, returning to a country of origin may not be straightforward. It is important to distinguish between refugee status and statelessness. Not every stateless person is a refugee, and not every refugee is stateless. However, some people experience both conditions. Their circumstances require careful consideration when authorities make decisions about return, protection and access to asylum.
Reliable figures on stateless asylum applicants in South Africa are not readily available for this discussion. It would therefore be misleading to speculate about their numbers. What matters is the need for better information that also protects people’s privacy and safety. Ultimately, asylum administration concerns more than processing applications. It concerns how people encounter the state, seek protection and attempt to rebuild their lives. Administrative efficiency matters, but it must never come at the expense of human dignity and safety.
What needs to change?
Four priorities emerge from the present crisis.
First, protect access to the asylum process. The Department of Home Affairs should ensure that refugee reception offices remain accessible to people seeking to lodge asylum claims, in accordance with existing legal obligations. Police and local authorities should respond promptly to intimidation, threats and obstruction, while protecting the rights and safety of everyone involved. The right to protest cannot become a power to determine who may access a statutory service. Clear procedures for reporting and addressing obstruction would help ensure that access to asylum services is not left to the discretion of organised groups or local actors.
Second, strengthen administrative capacity and accountability. Backlogs, staffing shortages, inadequate reception facilities and delays in adjudication require sustained administrative attention and practical investment. The Department of Home Affairs should regularly publish accessible updates on available resources, case-processing targets and progress in resolving outstanding applications. Transparent reporting would enable the public to assess institutional performance while helping identify where additional staffing, resources or administrative support are most urgently needed. Strengthening capacity would support both the fair treatment of asylum seekers and public confidence in immigration administration.
Third, improve public communication and institutional transparency. When a court judgment changes the legal position, the Department of Home Affairs should clearly explain what the judgment requires, what it does not require, and how officials will implement it. Such communication should begin before new procedures are introduced at reception offices and should be accessible to affected communities, frontline officials and the wider public. Government should also respond to misleading claims with timely, accessible and evidence-based information rather than relying solely on warnings against disinformation. This would help reduce uncertainty and prevent administrative decisions from being shaped by misinformation.
Fourth, ensure that administrative reforms remain consistent with constitutional and international obligations. Online registration, appointment systems, revised reception arrangements and changes to asylum procedures should be accompanied by clear implementation guidelines and appropriate safeguards. These should include accessible alternatives for people who cannot register online, transparent procedures for missed appointments, protection of personal information, accessible complaints mechanisms and clear service standards. Regular monitoring of these arrangements would help identify unintended barriers and ensure that administrative efficiency does not come at the expense of the right to seek asylum.
These measures would not resolve every disagreement about immigration or remove the pressures facing the asylum system. They would, however, help distinguish legitimate policy debates from attempts to deny people access to legal protection. More importantly, they would provide practical ways to assess government performance, strengthen institutional accountability, and allow the public to evaluate the asylum system based on evidence rather than rumours. Ultimately, rebuilding public confidence requires more than defending existing policies; it requires a functional, accessible and fair asylum system that works in practice.
Conclusion
South Africa’s asylum crisis reveals the gap between having legal rights and exercising them in everyday life. The Constitutional Court has affirmed that procedural non-compliance alone cannot prevent an asylum seeker from having their claim properly considered. However, the protests, administrative difficulties and uncertainty that followed demonstrate how difficult it can be to translate legal protection into everyday practice.
The challenge is not simply to manage immigration more efficiently or respond to public concerns. It is to build an asylum system that is orderly, accessible and consistent with the country’s constitutional and international obligations. These responsibilities should not be treated as competing interests. A credible system must recognise both the importance of effective administration and the dignity of people seeking protection.
The coming weeks will therefore be important in determining how the government responds. Another directive or digital registration platform will not, on its own, resolve the underlying problems. What is needed is consistent administration, clear public communication, adequate resources and meaningful access to protection.
Ultimately, the measure of South Africa’s asylum system should not only be how many applications it processes, but also how fairly it treats the people who depend on it. A right that exists in law but cannot be safely exercised remains incomplete. The state’s task is to make legal protection meaningful in people’s everyday lives.
Dr Tamuka Chekero is an anthropologist and migration and development scholar. He is a Postdoctoral Research Fellow at the Centre for the Advancement of Scholarship, University of Pretoria. His research examines migration, mobility, documentation, belonging, and the governance of migrant lives in Southern Africa. His broader work engages with the institutional and social conditions shaping migrants’ access to rights, resources, and protection.
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