Cape Town, South Africa – Judgement handed down today at the Constitutional Court –Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others ([2026] ZACC 30), is a significant victory for the Constitution, the rule of law and South Africa’s international human rights obligations. It reaffirms that the right to seek asylum cannot be denied because of procedural or immigration-related technicalities. It confirms that certain provisions of the Refugees Act that prevented asylum seekers from accessing South Africa’s asylum system are unconstitutional and invalid.

At the heart of the judgment is the Constitutional Court’s reaffirmation of one of the most fundamental principles of refugee protection: non-refoulement. The Court confirmed that section 2 of the Refugees Act enshrines this principle and that South Africa’s asylum system must remain open to all people seeking protection, regardless of how or when they entered the country. Refugee status depends on whether a person meets the legal definition of a refugee—not on whether they complied with immigration formalities before they were able to seek protection.

The Court further recognised that South Africa’s obligations arise not only from the Constitution but also from international and regional treaties that prohibit returning people to countries where they face persecution, torture, enforced disappearance or other serious human rights violations. These include the 1951 Refugee Convention, the OAU Refugee Convention, the Convention against Torture, the International Convention for the Protection of All Persons from Enforced Disappearance, the International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.

The judgement made it clear that what is being rejected is legislation that allows asylum seekers to be excluded before their claims were considered on their merits. It pointed out thatprovisions that require “good cause”, “compelling reasons” and “valid reasons”  created multiple vague and inconsistent thresholds and failed to provide guidance to officials responsible for making these decisions. This conferred broad, unguided and arbitrary discretion on immigration officials, making the system irrational and unconstitutional. The Court basically referred to these provisions as being of no value and dangerously permitted arbitrary exercises of public power.

The court ruled strongly on the protection of the rights of children stating that  they should not be penalised for illegal entry when seeking protection; and that the provisions now impugned failed to recognise children as rights-holders in their own capacity whose best interests must be paramount in every decision affecting them.

In the current context of hatred and xenophobic violence metered out against predominantly Black African people from the African continent, the judgement includes in a strongly worded statement a rejection of xenophobic rhetoric in judicial proceedings. During argument, counsel for the respondents made sweeping and unsupported allegations concerning Afghan and Bangladeshi nationals and their alleged involvement in human trafficking. The Constitutional Court strongly criticised these submissions, observing that advancing such claims without any evidentiary basis undermined the integrity of the State’s case and risked promoting xenophobic and racially charged narratives. This is a strong warning that immigration control can never justify reliance on unsubstantiated and prejudicial stereotypes that amount to scape goating.

Once again the Department of Home Affairs’ handling of the litigation was strongly criticised. Justice Majiedt described the Department’s conduct as demonstrating “remarkable gross ineptitude and egregious laxity”, criticised its repeated procedural failures, and reminded government that it bears a higher constitutional duty to respect the law and comply with procedural obligations. Making reference to other judgements the Court reaffirmed that government is the Constitution’s primary agent and “must do right, and it must do it properly.”

“This judgment is a victory not only for people seeking asylum, but especially for children on the move. For too long, children’s access to protection has been tied almost entirely to the procedural circumstances of the adults accompanying them. Today’s judgment reinforces a simple but profound constitutional principle: children are rights-holders in their own right, and their best interests must remain at the centre of every decision that affects them. No child should be denied protection because of circumstances beyond their control. This judgment affirms that children on the move are not merely dependants in an immigration process, but individuals entitled to the full protection of the Constitution.” – Scalabrini Centre of Cape Town

“Today’s judgment sends a clear message that South Africa’s constitutional democracy is founded on the rule of law, human dignity and equal protection for everyone within its borders. Refugees and asylum seekers cannot be denied protection through arbitrary administrative barriers, vague legislative provisions or discriminatory assumptions. The Constitution requires that every person seeking asylum be afforded a fair opportunity to have the merits of their claim properly considered before any decision is made that could expose them to persecution or other irreparable harm.” – Lawyers for Human Rights

 

For more information, please contact:

Mpho@lhr.org.za and communications@scalabrini.org.za .