The Western Cape High Court delivered a significant judgment declaring several refugee protection compromising provisions of the Refugees Act and its accompanying regulations unconstitutional and invalid in the matter brought by the Scalabrini Centre of Cape Town, represented by Lawyers for Human Rights (LHR). This case challenged the legality of practices and processes that have denied new asylum seekers access to the asylum system since around November 2023, leading to the arrest, detention, and deportation of asylum seekers without a refugee status determination interview. 

Background 

Scalabrini Centre of Cape Town and LHR brought this application to challenge the unlawful practice of arresting and detaining new asylum seekers based on preliminary interviews conducted by immigration officials regarding their entry into the country. This process effectively bypassed the established asylum application process, contravening the fundamental principle of non-refoulement, which prohibits the return of individuals to places where they face persecution or serious harm. 

“This judgment affirms South Africa’s obligations under international refugee law: newcomer asylum seekers cannot be penalised for the way they entered and remained in South Africa, until their claims are finalised. When newcomer asylum seekers come to South Africa seeking refuge, the primary question in assessing their claims is whether they are at risk of persecution and harm if they are returned to their country of origin. We urge the state to respect the right of asylum seekers to access the asylum system and not send people back to situations where they will be harmed, tortured, or even killed,” said Nabeelah Mia, the head of LHR’s Penal Reform and Detention Monitoring Programme. 

“Someone who flees war, violence, torture, or persecution should be able to apply for and receive asylum. Preventing them from doing so violates their fundamental right not to be returned to violence and/or persecution. Instead, new asylum applicants are arrested, detained, and face deportation.  The judgment affirms that fundamentals of the Constitution like human dignity, safety and security of person, the right to life must not be disregarded! South African cannot, must not, and is legally required not to return someone to an environment in which their life, liberty, or fundamental human rights would be at risk,” said James Chapman, head of Advocacy and Legal Advice at Scalabrini. 

 

Key Points of the Judgment: 

The Western Cape High Court declared the following provisions inconsistent with the Constitution of South Africa and therefore invalid: 

• Sections 4(1)(f), 4(1)(h), and 4(1)(i) of the Refugees Act: these excluded people from refugee protection on procedural grounds, without considering the merits of their claims. 

• Section 21(1B) of the Refugees Act. 

• Regulations 8(1)(c)(i), 8(2), 8(3), and 8(4) of the Refugee Regulations: these denied most new asylum seekers access to the system entirely. 

The findings of this section and the regulations invalid should restore access to asylum and corresponding protection from return.   

What This Means: 

The court has recognised that the challenged legal provisions, which formed the basis for the arrest, detention, and denial of access to the asylum system for new applicants, are contrary to the Constitution of South Africa. 

In terms of Section 172(2)(a) of the Constitution, the declaration of invalidity must now be referred to the Constitutional Court for confirmation. The Constitutional Court will have the final say on whether to uphold the High Court’s decision. 

The interim interdict granted in Part A of the application on 13 September 2024, which prevented the deportation of individuals who had indicated an intention to apply for asylum, has been discharged. This means the temporary protection against deportation is lifted for now, pending the Constitutional Court’s decision. 

However, the full bench of the High Court has unanimously found that the sections of the Act and accompanying regulations are unconstitutional and hence we hope and trust that in accordance with this assessment, the Department of Home Affairs will restore access to asylum and processes asylum seekers, without subjecting them to arrest detention and deportation without consideration of the merits of their asylum claims.   

Any steps taken towards application of the provisions denying access detaining or deporting without assessment of the merits of asylum claims would be directly in conflict with the spirit of the High Court’s finding and the High Court in its Judgement pointed out that asylum seekers will have clear recourse to the courts should this arise.  

Fundamental Obligations: 

Lawyers for Human Rights and the Scalabrini Centre acknowledge the judgment’s protection of the inherent and fundamental principle of non-refoulement. We trust that the Department of Home Affairs will comply with this principle. 

 

For a copy of the judgment, please see here. 

For further information, please contact:  

Nabeelah Mia: nabeelah@lhr.org.za  

Head: Penal Reform and Detention Monitoring Programme 

Lawyers for Human Rights  

 

James Chapman: advocacy@scalabrini.org.za 

Head of Advocacy and Legal Advisor  

Scalabrini Centre of Cape Town