For hundreds of asylum seekers who queued outside refugee reception offices this week, only to be told to leave over security concerns, the question that remains is a simple one: how, and when, will they be able to lodge their applications? That uncertainty now defines a fast-moving controversy that has drawn in the Constitutional Court, cabinet ministers and violent protests on the streets of Soweto and Durban.
The immediate trigger was Friday’s announcement that the Department of Home Affairs had withdrawn a directive intended to implement a Constitutional Court judgment on asylum applications. The department said its director-general had pulled the instruction, issued on 28 September, after refugee reception offices were overwhelmed within days, officials were placed at risk, and serious threats to public safety and order emerged.
Minister Leon Schreiber defended the reversal in media interviews on Friday, saying the government had changed its position because the “facts shifted”. He argued that the court could not have foreseen the consequences its ruling would have for refugee reception centres and the communities around them.
The withdrawal came a day after violent anti-immigrant protests in Soweto and Durban, during which 24 vehicles were torched and foreign-owned businesses were targeted. Acting national police commissioner Lieutenant General Puleng Dimpane said 10 vehicles were burnt in Soweto and 14 in Durban. In Orlando West, protesters gathered near a Home Affairs office before moving towards foreign-owned businesses; police received reports of shots being fired towards demonstrators before vehicles were set alight. In Durban, shops were looted and vehicles burnt, and hundreds of asylum seekers waiting outside the refugee reception centre were instructed to leave over security concerns. Three foreign nationals were arrested for allegedly assaulting a protester, an incident police said might have contributed to the unrest. Officers reported that calm had returned to both areas on Friday, although they remained on alert.
At stake for the public is the practical meaning of a binding Constitutional Court judgment delivered on 7 July in litigation brought by the Scalabrini Centre of Cape Town and Lawyers for Human Rights. The ruling struck at provisions of the Refugees Act that prevented asylum seekers from even reaching the application process because they had entered the country irregularly, failed to obtain an asylum transit visa, or missed prescribed reporting deadlines. It requires officials to consider individual claims rather than automatically excluding applicants on procedural grounds.
The judgment does not grant undocumented migrants automatic refugee status, citizenship, permanent residence or voting rights. Applicants must still establish that they qualify for protection, and those whose claims fail may face deportation following due process. That distinction, officials acknowledge, has been obscured by misinformation circulating on social media, including claims that the ruling amounted to the blanket legalisation of undocumented foreign nationals.
Meanwhile, the violence followed an emergency meeting of the inter-ministerial committee on migration on Wednesday night, held a day before the protests and after the committee had reaffirmed the government’s obligation to comply with the July judgment. Briefing the media on Thursday, Justice and Constitutional Development Minister Mmamoloko Kubayi, who chairs the committee, acknowledged that the country’s five refugee reception offices had been overwhelmed by applicants. She said the government respected the judgment but faced significant operational challenges, and stressed that the ruling did not prevent the enforcement of immigration laws or the deportation of people who do not qualify for refugee protection.
The committee announced plans to strengthen asylum processing capacity, improve biometric screening, accelerate decisions on applications and investigate fraud within the system. It also sought legal advice on implementing the judgment, including options where compliance would require significant time and resources. Minister in the Presidency Khumbudzo Ntshavheni said on Thursday that the government was reviewing Home Affairs directives to address confusion and overcrowding, meaning a review was already under way at political level before Friday’s withdrawal. The department has not disclosed whether Schreiber or the committee requested or approved the decision.
Home Affairs has rejected suggestions that the directive was politically motivated, noting that it was issued as an operational measure without the knowledge of Schreiber or any other political office-bearer, and that the department had opposed the Constitutional Court case. The department maintains that it respects the judiciary and remains committed to complying with the court order, which remains binding despite the withdrawal.
What the department has not explained is what interim arrangements will apply at refugee reception offices, or when replacement instructions will be issued. The Scalabrini Centre and Lawyers for Human Rights had not issued a publicly available response to the withdrawal at the time of writing. For the people whose access to the asylum system the judgment was meant to secure, the reversal leaves a gap between constitutional obligation and daily reality, one that the government has yet to say how it will close.