For weeks, a misreading of a Constitutional Court judgment has shaped what ordinary South Africans believe about their asylum system. Online, the ruling was described as handing immigrants citizenship, jobs and voting rights. That portrayal, amplified by March and March, helped fuel days of violent anti-immigrant protests in Durban, Soweto and outside the court itself. Yet the judgment did none of what its critics claimed. What it actually ordered matters directly to the public, because it concerns whether the country’s asylum system functions at all and who is entitled to use it.
The ruling, delivered on 7 July 2026, struck down provisions of the Refugees Act that had created barriers to the asylum process. It reaffirmed a principle that predates it: people cannot be denied access to asylum application procedures simply because of how or when they entered South Africa. Far from a radical departure, the judgment built on legal foundations laid years earlier.
The barriers were created in 2020, when amendments to the Refugees Act effectively barred anyone who entered the country unlawfully from reaching the asylum system. Under those amendments, immigration officials were required to conduct “good cause” interviews with undocumented people to establish whether they had good reason for entering South Africa illegally and for failing to report to a Refugee Reception Office within five days. Liesel Fourie, an attorney at the Nelson Mandela University Refugee Rights Centre in Gqeberha, explained that in practice those interviews never happened. Officials said they lacked the training and paperwork, and were not permitted to make decisions themselves. Instead they had to send interview notes to a provincial or regional head of department, who made the call.
The result was paralysis. The inefficiency of the process, combined with officials’ reluctance to attempt it, brought asylum processing at reception offices across the country to a standstill. Fourie said her office never received a single good cause decision back in all the years since the amendments were passed. Tens of thousands of asylum seekers were left with no meaningful way to apply for refugee status.
The challenge to those amendments was brought by the Scalabrini Centre of Cape Town, an organisation working to protect immigrant rights in South Africa, which approached the Western Cape High Court in April 2025. On 15 May 2025, the high court ruled in its favour and struck the provisions down. It was that ruling the Constitutional Court confirmed on 7 July 2026.
What followed says much about how the state has handled its duties to the public. For weeks, the Department of Home Affairs sat on the judgment, according to a senior staffer at Scalabrini. (The staffer was interviewed on record on 5 October, but after Scalabrini’s board decided, as a safety precaution against the anti-immigration movement’s tendency to dox and threaten activists, that no staff should be quoted in the news media, an editorial decision was taken to anonymise the staffer.) On 4 September, Scalabrini and Lawyers for Human Rights wrote to Home Affairs Minister Leon Schreiber calling on the department to immediately reopen refugee reception offices to new applicants and stop applying the unconstitutional good cause requirement. The minister did not reply.
Then, on 28 September, the department issued a directive ordering all reception offices to begin processing new asylum claims with immediate effect. The suddenness caught the offices off guard, and many were soon inundated with hundreds of queuing migrants. The offices were given no support to deal with the inevitable wave of applicants, the staffer observed, and chaotic scenes ensued. After the violent protests, on 9 October, the department revoked its own directive, saying it would find the most appropriate way to comply with the Constitutional Court’s order. The consequence, the staffer noted, is that the country is effectively back where it started, with tens of thousands of asylum seekers unable to access the system. The difference is that the highest court has now said they must have access, and unlike a departmental directive, that order cannot be revoked.
Despite the fury the judgment drew from the anti-immigrant movement, it achieves little that is new. In 2018, in Ruta v the Minister of Home Affairs, the Constitutional Court had already affirmed that anyone wishing to apply for asylum must be allowed to do so regardless of how they entered the country or how long it took them to apply. That case also affirmed the principle of non-refoulement, enshrined in the Refugees Act, which prohibits returning people to places where they face persecution, torture or other serious harm. Fourie noted that the principle protects even prospective asylum seekers, who cannot be deported until they have completed the application process and exhausted all appeals. Abore v the Minister of Home Affairs and Another confirmed this in December 2021, and in June 2023, Ashebo v Minister of Home Affairs and Others confirmed that an illegal foreigner who has expressed an intention to apply for asylum cannot be deported until given a fair opportunity to process that claim. In this year’s judgment, Fourie said, the Constitutional Court confirms what those earlier cases said. The foundations were laid long ago.
A harder question concerns people already in detention. In August, the South African Police Service reported to Parliament that it had arrested, detained and in some cases deported thousands of “illegal” immigrants, and this continues. The department’s since-revoked directive did not cover asylum seekers currently detained or facing deportation. According to the Scalabrini staffer, that gap exists because two Gauteng High Court judges took conflicting approaches to the July decision. In Mnamo and others v Home Affairs, heard in August, Judge Mandlenkosi Motha ordered that a group of undocumented people detained at the Lindela Repatriation Centre should remain in detention while immigration and refugee officials came to Lindela to process their claims. In Ered v Minister of Home Affairs and Another, heard in September, Judge Stuart Wilson strongly disagreed with that reasoning and ordered the applicant, a Lindela detainee, released with immediate effect.
To resolve the conflict, Gauteng Judge President Aubrey Ledwaba referred the differing interpretations to a full-bench court, which will sit on 29 October. The earlier judgments offer competing guidance. Ruta held that detention and deportation must stop when someone expresses an intention to seek asylum. Abore said the provisions dealing with an immediate right to release fall away, because the regulation providing for this was not included in the new regulations that took effect in January 2020. Ashebo moved away from Ruta too, holding that detained people who wish to apply for asylum should be interviewed by an immigration officer to establish good cause, and placing a duty on the state to assist them. Fourie called that impractical, since asylum applications can only be made in person at a reception office, meaning immigration must transport detainees there, where they may or may not be assisted. The Scalabrini staffer believes that with the good cause requirement now struck down, the procedure should revert to Ruta, meaning people should be automatically released to apply for asylum. Scalabrini will join the hearing as a friend of the court. It is highly political, the staffer conceded.
When the full bench convenes on 29 October, the question before it will be a practical one for thousands of people in detention: does the country’s highest court’s promise of access to asylum reach them too, or only those still outside the system?