Western Cape High Court declares some sections of Refugees Act unconstitutional & invalid
The declaration of constitutional invalidity has now been referred to the Constitutional Court for possible confirmation of unconstitutionality.
FILE: One part of a group of about 630 people, refugees originally from Democratic Republic of Congo, Rwanda, Burundi, and Bangladesh, and other countries who are sleeping in a large tent in Bellville, Cape Town, on 22 September 2020. Picture: RODGER BOSCH/AFP
JOHANNESBURG - The Western Cape High Court has declared some provisions of the Refugees Act unconstitutional and invalid, giving reprieve to some asylum seekers.
The judgment brings a more than two-year legal battle a step closer to finality.
In 2023, non-profit organisation, Scalibrini Centre, successfully interdicted the home affairs department from deporting foreign nationals if they indicated their intention to apply for asylum under the Refugees Act.
The organisation believes that deporting foreign nationals without due consideration to their applications for asylum is unconstitutional.
There were several sections of the Refugees Act that were in dispute before the Western Cape High Court.
One stipulates that an asylum seeker does not qualify for refugee status if an officer has reason to believe that they’ve entered South Africa unlawfully or are in possession of South African identification unlawfully.
The third section looks at whether they've reported to a refugee reception office within five days of entering the country and if not, that they've provided compelling reasons, which may include hospitalisation or institutionalisation.
In a 42-page judgment, the high court said that simply refusing to entertain an application due to the fact that persons had entered the country unlawfully was contrary to the principle of non-refoulement.
The court found that the provisions introduced an "overlapping set of mechanisms" requiring foreign nationals to demonstrate adequate compliance with immigration procedures before being entitled to apply for asylum.@ZOLEKV_Q
— EWN Reporter (@ewnreporter) May 15, 2025
This prohibits countries from deporting people who may face persecution or irreparable harm in their home countries.
The declaration of constitutional invalidity has now been referred to the Constitutional Court for possible confirmation of unconstitutionality.
The invalidity of the statute cannot take effect without the confirmation by the apex court.