{"id":318359,"date":"2026-07-20T12:00:21","date_gmt":"2026-07-20T11:00:21","guid":{"rendered":"https:\/\/www.transcend.org\/tms\/?p=318359"},"modified":"2026-07-15T13:10:34","modified_gmt":"2026-07-15T12:10:34","slug":"south-africas-top-court-defends-asylum-rights","status":"publish","type":"post","link":"https:\/\/www.transcend.org\/tms\/2026\/07\/south-africas-top-court-defends-asylum-rights\/","title":{"rendered":"South Africa’s Top Court Defends Asylum Rights"},"content":{"rendered":"
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A man is attacked with a sjambok at an anti-immigrant March in Jeppestown in May 2026.\u00a0 Photo credit: Ihsaan Haffejee<\/p><\/div>\n

Landmark Ruling Curbs Arbitrary Deportations<\/em><\/p><\/blockquote>\n

15 Jul 2026\u00a0<\/em>–\u00a0South Africa\u2019s Constitutional Court has struck down sections of the Refugees Act that allowed immigration officials to arbitrarily bar foreign nationals without a valid visa from applying for asylum. In a ruling<\/a> on 7\u00a0July, Justice Steven Majiedt called these provisions \u201can arbitrary exercise of state power\u201d that \u201csubjects vulnerable asylum seekers to yet another bureaucratic step.\u201d\u200b<\/p>\n

These provisions, introduced through an amendment in 2017, took effect at the start of 2020, prior to which any person reaching the Refugee Reception Office (RRO) could apply for asylum.\u200b<\/p>\n

Officials were required to receive and assess the application on its own merits, regardless of whether the asylum seeker had a valid visa to be in South Africa or how long the person had stayed in the country without papers. Pending final determination, the applicant is issued a temporary asylum-seeker visa to remain in the country legally.\u200b<\/p>\n

\u201cThe new provisions and regulations, however, fundamentally altered this position,\u201d noted the judgement. If an asylum seeker\u2019s transit visa, issued at a port of entry and valid for five days, has expired, the applicant must provide \u201cvalid reasons\u201d for the delay in reporting at the RRO, where he or she will be interviewed by a Refugee Status Determination Officer (RSDO). The same is required if the applicant never obtained an asylum transit visa, indicating irregular border crossing without going through designated entry points.<\/p>\n

\u200bHowever, the impugned sections imposing this requirement provided no guidelines for determining what constitutes a \u201cvalid reason.\u201d It was left to the officer\u2019s discretion, \u201ccreating a real risk of arbitrary and inconsistent decision-making,\u201d the judgement noted. \u201cIt forms part of a legislative framework preventing asylum seekers from entering the asylum process and obtaining a determination on the merits of their claims.\u201d<\/p>\n

\u200bAs a consequence, many have been barred from applying for asylum, detained, and deported to their country of origin. The court found this to be in violation of the \u201cprinciple of non-refoulement,\u201d which protects an asylum seeker from deportation \u201cas long as the claim to refugee status has not been finally rejected after a proper procedure on the merits.\u201d<\/p>\n

\u200bChallenging these sections of the law, the Scalabrini Centre of Cape Town won a case in the Western Cape High Court, which delivered a landmark judgement<\/a> in May 2025, ruling these sections allowing immigration officers to bar asylum seekers from making an application unconstitutional.<\/p>\n

\u200bSouth African law requires that when a High Court finds legislation to be unconstitutional, its ruling must be confirmed by the Constitutional Court before it enters into force. Accordingly, the Scalabrini Center, represented by Lawyers for Human Rights, approached the Constitutional Court<\/a> earlier this year.<\/p>\n

\u200bIn its support, the Helen Suzman Foundation (HSF), Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Center, and the UN High Commissioner for Refugee Rights made written submissions as amicus curiae (friend of the court).<\/p>\n

Xenophobic rhetoric<\/strong><\/p>\n

Confirming the High Court\u2019s ruling on 7\u00a0July, Justice Majiedt also criticised the Department of Home Affairs for defending the impugned sections. With \u201csweeping and unsupported assertions regarding Afghan and Bangladeshi nationals\u201d involvement in human trafficking in South Africa.\u201d<\/p>\n

\u201cAdvancing such claims, particularly in the absence of any evidentiary foundation, not only undermined the integrity of the state\u2019s case, but also introduced rhetoric that risks being perceived as xenophobic or racially charged,\u201d he added.<\/p>\n

\u200b\u201cThis is not inconsequential\u2014submissions of this nature, when advanced before this Court, carry the potential to shape broader societal narratives about refugees and may adversely affect the protection of their rights.\u201d<\/p>\n

\u200bThese remarks came amid growing marches, protests, and mob attacks in South Africa targeting poor migrants from other countries on the continent.\u200b<\/p>\n

\u201cIt is the vigilantes and anti-rights groups that are betraying the constitutional values,\u201d said<\/a> Mpho Makhubela, spokesperson of the Lawyers for Human Rights. \u201cThe only way to address this is for communities to organise themselves to hold the state to account,\u201d he added. \u201cThis judgement demonstrates the power of collaboration and engagement of the judiciary when the voiceless among us have their dignity trampled on and their basic human rights denied.\u201d\u200b<\/p>\n

Welcoming the judgement, the Economic Freedom Fighters (EFF) deemed it \u201ca victory for constitutionalism, human dignity, and the principle that justice cannot be sacrificed at the altar of bureaucratic technicalities.\u201d<\/p>\n

_________________________________________________<\/p>\n

Pavan Kulkarni is a journalist with <\/em>Peoples Dispatch who covers labor struggles and progressive social movements, mainly on the African continent, but also in India.<\/em><\/p>\n

Go to Original – savageminds.co<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

15 Jul 2026\u00a0–\u00a0Landmark Ruling Curbs Arbitrary Deportations<\/p>\n","protected":false},"author":4,"featured_media":318361,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[127],"tags":[3480,103,1218,2438],"class_list":["post-318359","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-africa","tag-anti-immigration","tag-racism","tag-south-africa","tag-xenophobia"],"_links":{"self":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/318359","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/users\/4"}],"replies":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/comments?post=318359"}],"version-history":[{"count":2,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/318359\/revisions"}],"predecessor-version":[{"id":318362,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/posts\/318359\/revisions\/318362"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media\/318361"}],"wp:attachment":[{"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/media?parent=318359"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/categories?post=318359"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.transcend.org\/tms\/wp-json\/wp\/v2\/tags?post=318359"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}