IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Case No: 8684/2024

In the matter between:

SCALABRINI CENTRE OF CAPE TOWN First Applicant

TRUSTEES OF THE SCALABRINI CENTRE OF CAPE TOWN Second Applicant

and

THE MINISTER OF HOME AFFAIRS First Respondent

THE DIRECTOR -GENERAL:
DEPARTMENT OF HOME AFFAIRS Second Respondent

THE CHIEF DIRECTOR OF ASYLUM SEEKER
MANAGEMENT: DEPARTMENT OF HOME AFFAIRS Third Respondent

THE REFUGEE APPEALS AUTHORITY Fourth Respondent

THE STANDING COMMITTEE FOR REFUGEE AFFAIRS Fifth Respondent

and

AMNESTY INTERNATIONAL First Amicus

GLOBAL STRATEGIC LITIGATION COUNCIL
FOR REFUGEE RIGHTS Second Amicus

INTERNATIONAL DETENTION COALITION Third Amicus

HELEN SUZMAN FOUNDATION Fourth Amicus

Coram: Justice J Cloete, Justice L Nuku et Acting Justice S Kholong
Heard: 27 February 2025; respondents’ supplementary note delivered on 7
March 2025
Delivered electronically: 15 May 2025


JUDGMENT


CLOETE J :

Introduction

[1] The applicants (collectively, “ Scalabrini”) have approached this court ( in Part
B1 of their amended relief )2 to have certain provisions of the Refugees Ac t (the
“Refugees Act “)3, and the regulations promulgated thereunder ( “the regulations”)4
declared to be unconstitutional and invalid. In the event of the court granting the
relief sought , the applicants also seek an interdict against the respondents pending
confirmation (or otherwise) of our order by the Constitutional Court. I will return to
this aspect later.


1 Part A ( the urgen t interim relief) was heard by Manca AJ , who handed down judgment on 13
September 2024 : Scalabrini Centre o f Cape Town v Minister of Home Affairs and Others
(8486/2024) [ 2024 ] ZAWCHC 263.
2 The additional and/or alternative relief contained in prayer 3 of the amended notice of motion dated
1 November 2024, ie to review and set aside the impugned regulations, was abandoned during
argument .
3 No 130 0f 1998.
4 In terms of s38 of the Act , published in GNR 1707, GG 42932 dated 27 December 2019.
[2] The impugned provisions are s s 4(1)(f), 4(1)( h), 4(1)(i) and 21(1B) of the
Refu gees Act, as well as regulations 8(1)(c) (i), 8(2), 8(3) and 8(4) . The applicants
assert that th eir effect is to disbar foreign nationals who wish to seek asylum in
South Africa from doing so if they hold an adverse immigration st atus solely due to
their non -compliance with bureaucratic and/or procedural requirements . This, t hey
contend , is an unjustifiable violation of the Constitution as well as the right of non-
refoulement ( non -return) enshrined both in international customary law and s 2 of
the Refugees Act.

[3] The application is opposed by the respondent s, who also unsuccessfully
resisted the applications of the first to fourth amici for their admission. After hearing
argument the amici were admitted and grante d leave to make submissions on the
following limited issues as undertaken by them : in the case of the first to third amici ,
the issues of non-refoulement and non -penali sation, and in respect of the fourth
amicus, the impact of the impugned provisions on children.

Reasons for admission of the a mici

[4] In terms of rule 16A (2) of the High Court rules “any interested party in a
constitutional issue raised in proceedings before a court” may seek admission as an
amicus curiae. The Constitutional Court in Fose v Minister of Safety and Security5
set out the requirements for admission as follows:

“it is clear from the provisions of Rule 9 [of the rules of the Constitutional
Court at the time ] that the underlying principles governing the admission of an
amicus in any given case, apart from the fact that it must have an interest in
the proceedings, are whether the submissions to be advanced by the amicus
are relevant to the proceedings and raise new contentions which may be
useful to the Court…”

[5] The applicants filed the rule 16A notice on 26 April 2024. On 3 June 2024 , the
attorney for the first to third amici (“the international organisations”) wrote to the

5 1997 (3) SA 786 (CC) at para 9 ; see also Brummer v Minister of Social Deve lopment 2009 (6) 323
(CC) at para 20.
respective attorneys of the applicants and respondents, requesting the ir consent to
be admitted as amici in respect o f the Part B relief. On 11 June 2024, the applicants
consented. On 26 June 20 24, the respondents refused to grant consent, indicati ng
that the admission of the international organisations was premature because they
(the respondents) had not yet filed their answering papers. On 26 November 2024,
the international organisations advised that they would await those answering
papers before filing any application for admission as am ici due to the respondents ’
concerns . The international organi sations noted that the respondents ’ answering
papers were due on 13 December 2024 , and undertook to launch their application
for admission by 15 January 2025.

[6] On 18 December 2024, the international organisations requested the
respondents to provide a copy of the ir answering papers. No response was received .
On 24 December 2024, a follow up e-mail was sent to the respondents, and betwe en
that date and 9 January 2025 , a number of telephone calls were made by the
attorney for the international organisations to the respondents ’ attorney for the same
purpose , all without success. On 9 January 2025, the international organisations
received a copy of the answering papers fro m the applicants (the answering papers
had been filed on 13 December 2024). On 28 January 2025, the international
organisations launched their a pplication , together with an application for
condonation.

[7] This background notwithstanding, the respondents complained that the delay
by the international organisations in launching their admission application was
“hugely prejudicial” to them, since they were being subjected to a truncated timeline
for the filing of their answering papers and heads of argument. While it is correct that
the international organisations did not comply with the relevant time period in rule
16A ( ie within 20 days from the date upon which the main application and rule 16A
notice were filed in respect of both Parts A and B on 26 April 2024 ) they did not
participate in the hearing of the Part A relief, which was determined on 13
September 2024 . Further, it was only because the respondents themselves advised
the international organisations that their request for admission was premature
(because the respondents had not yet filed their answering papers) that the
international organisation s waited u ntil they had done so .

[8] It cannot be laid at the door of the international organisation s that the
respondents failed to provide them with a copy of their own answering papers in
respect of the Part B relief, not only late but at all. We do not believe that in the
circumstances, the international organisations delayed unnecessarily in launching
their admission application. Moreover , the respondents delivered their answering
affidavit in that admission application on 17 February 2025, nine days before the
matter was set down for hearing before us. The international organisation s filed their
replying affidavit a mere three days later , on 20 February 2025, and their heads of
argument in the admission applicati on on the foll owing day, 21 February 2025. In
any event , during argument the respondents abandoned their reliance on prejudice ;
and they were also afforded the opportunity to deliver a supplementary note after
the hearing dealing with the submissions made by all four amici on the Part B relief ,
which was duly filed on 7 March 2025.

[9] The other ground s of opposition raised by the respondents w ere that the
international organisations : (a) did not seek to advance new ar guments, but only to
repeat arguments already raised; (b) in any event, the arguments to be raised we re
either irrelevant to the issues or generally of no assistance; and (c) the nature of their
arguments were not truly those of an amicus, but rather “a self -standing litigant
seeking to advance its own interests” . In our view, none of these arguments had
merit for the following reasons .

[10] It is undisputed that the international organisations are all well - established
bodies working in refugee and migrant rights. They have expertise in international
and comparative law on refugees’ and asylum seekers ’ rights . They explained their
individual activities which concern these rights generally, including the detention of
migrants. They then explained that they have two related interests in this litigation.
First, the application of the principle of non–refoulement , and second, the impact the
impugn ed provisions will have on the detention of migrants. These are interests that
go to the heart of the Part B relief. The respondents did not suggest that the
international organisations do not have an interest in non-refoulement , or that the
interest is irrelevant to the matter at hand. Instead they say that the second interest
is “insufficient” because the international organisations accept the impugned
provisions do not directly authorize detention. But this is no basis to conclude that
the international organisation s lack the requisite interest : (a) the latter have two
interests , and they only need one; and (b) the respondents do not deny that the
impugned provisions may give effect to detention. The undisputed facts are that
their implemen tation radically increased the detention of migrants in South Africa .
The international organisation s assert that the patterns of detention will be affected –
and likely reduced – if the provisions are declared unconstitutional. They clearly have
an interest in that. Accordingly the re was no sound basis for the respondents to
argue that they lacked a sufficient interest.

[11] The international organisations also sought to share their expertise with the
court. While the applicants briefly referred to international law, they limited the ir
reference to the UN Refugees Convention and the 1969 Organisation of African
Unity Convention Governing the Specific Aspects of Refugee Problems in Africa
(“the OAU Convention ”). The international organisations refer red to several other
treaties that are directly relevant and impose different and independent non-
refoulement obligations on South Africa. These are the Convention Against Torture6
(“CAT”) which South Africa ratified in 1998 ; the International Convention for the
Protection of All Persons from Enforced Disappearanc e (“ICPPED”) which South
Africa acceded to in May 2024 ; and two human rights treaties that, although they do
not contain an expre ss non-refoulement provision, have been interpreted to include
non-refoulement obligations not only for refugees , but for all persons , including
migrants . These are the International Covenant on Civil and Political Rights
(“ICCPR” ) and the African Charter on Human and Peoples’ Rights (“ACHPR”) .

[12] The applicants also did not refer to any of the documents interpreting these
obligations by the Human Rights Committee, the African Commission on Human and
Peoples’ Rights, the United Nations High Commissioner for Refugees, the United
Nations General Assembly, the Committee Against Torture, or the UN Special
Rapporteur on the Human Rights of Migrants. The international organisations did so.
While those sources do not bind So uth Africa or this court, they are relevant for
interpreting South Africa's binding international obligations.

6 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment o r Punishmen t.

[13] All of this differs in substance from the submissions on international law made
by the applicants. In any event this court must have regard to the international law
referred to by the international organisation s, since s 39(1)(b) of the Constitution
makes it incumbent on us to do so, given that we are considering provisions in the
Bill of Rights . Yet the respondents claimed that the submissions to be made by the
international organisations were also not relevant or novel for three other reasons
too. First, they claim the issue has alr eady been dealt with in Ashebo7 which is hotly
contested between the applicants and the respondents. The international
organisations do not directly enter into the debate as it falls outside the prescripts of
international law. However if the court agrees with the applicants that Ashebo is no t
dispositive , then the international law these organi sations refer to is plainly relevant.

[14] Second, the respondents argue that the international organisation s are wrong
that the impugned provisions are inconsistent with the principle of non-refoulem ent.
However that is an argument about the merits of the submissions, not their
relevance. The fact that the respondents are compelled to rebut the merits of the
arguments advanced by the international organisations proves their relevance. Third,
the respondents claim the international organisation s merely provide "a shopping list
of international instruments” which is incorrect. The founding affidavit of the
international organisation s set s out the substance of their submissions, and then
lists the authorit ies to be relied upon in support of those submissions. We were thus
satisfied, having regar d to the above, that the submissions of the international
organi sations were both relevant and new, and the respondents ’ objections
unfounded.

[15] Turning now to the fourth amicus (“HSF”). This amicus applied for admission
to represent the interests of a particularly vulnerable group of individuals , namely
children . The applicants did not deal specifically with the position of children, and nor
did the international organisation s. In our view the respondents rightly accepted that
HSF thus has an interest in the ma tter. However they objected to its admission on

7 Ashebo v Minister of Home Affairs 2023 (5) SA 382 (CC) .
two main grounds , the first being the lateness of the admission application, and the
second that HSF has not raised new issues that would benefit determinat ion.

[16] HSF launched its application way out of time , on 13 January 2025. It thus also
brought a formal application for cond onation . HSF similarly did not participate in the
Part A proceedings , which pertained only to interim relief designed to suspend the
implementation of the impugned provisions until such time as their constitutional
validity could be tested in Part B. HSF explained that after the court made an order in
the applicants’ favour in Part A, it took the decision, on legal advice, to await receipt
of the rule 53 record, the applicants’ supplementary affidavit and the respondents ’
answering affidavit. This would allow HSF to make an informed decision regarding
intervention, rather than simply s eeking to intervene without a full understanding of
the respondents’ justification for defending the impugned provisions . As previously
stated, the responden ts’ answering affidavit was filed on 13 December 2024. HSF
explained that this was the date on whic h its offices closed for the end of year break
and when its legal team became unavailable.

[17] On 10 January 2025 a meeting was held by HSF with its legal team, and a
decision taken to proceed with the application for admission. On 13 January 2025 ,
HSF wrote to the parties requesting them to advise by 20 January 2025 whether they
consented or objected to its admission . On 22 January 2025, the applicants
consented. On 28 January 2025 , the respondents declined to consent for the
following reason s: (a) the lateness of the application would cause them prejudice , a
contention that was similarly abandoned during argument ; (b) the expressed
intention by HSF to rely on evidence of factual experiences of asylum seekers was
irrelevant and inappropriate , since the Part B relief is an abstract challenge to the
impugned provisions; (c) the same Ashebo argument as before ; and (d) the
assertion that “We appreciate … the interests of vulnerable groups, including
children, must be considered in the proper interpretation of the impugned provisions .
It is not, however, explained how the impugned provisions, properly interpreted and
properly implemented, violate the right s of children. In particular , you do not explain
whether you are referring to cases in which a child has a self -standing application
for asylum seeker status ( independent of their parent or parents) ; or whether you are
referring to cases in which a child' s right to lawfully remain in the country is
dependent on their parent or parents obtaining asylum seeker status. We note that
in the former, the fact that an applicant for asylum seeker status is a child , could be
raised in the good cause hearing. In the latter, a parent could raise the impact on
their children in the good cause hearing. Any unlawful action in respect of the child
would then flow from unlawfulness against the parent.”

[18] It is not necessary to deal with the Ashebo submi ssion again in this context.
Further, HSF undertook not to deal with factual matters when making i ts
submissions, and the concern raised by the respondents in relation to how the
impugned provisions violate the rights of children goes to the merits of Part B, and
not to the admission application itself. As with the international organisation s, HSF
referred to other domestic and international instruments , directly implicating children
to which the applicants had not specifically referred . These were the Children's Act8,
The United Nations Convention on the Rights of the Child (“CRC”) and the African
Charter on the Rights and Welfare of the Child (“Charter”) . South Africa ratified the
CRC on 16 June 1995 , and the Charter on 7 January 2000 . In addition, HSF
referred specifically to those provisions of the Constitution pertaining to children ,
Constitutio nal Court authority in respect thereof, and guidance from General
Comments published under the United Nations.

[19] These were the UN Committee on the Rights of Children , General Comment
No 14 (2013 ) on the right of the child to have his or her best interests taken as a
primary consideration ; Joint General Comment No 4 (2017 ) of the Committee on
the Protection of the Rights of All Migrant Workers and Members of Their Families ;
and General Comment No 23 (2017 ) of the Committee on the Rights of the Child on
State obligations regarding the human rights of children in the context of international
migration in countries of origin, transit, destination and return. Again, there was
accordingly no overlap between the submissions that HSF sought to make and those
of the applicants , and for these reasons we concluded that the re spondents’
objection to the a dmission of HSF lacked merit.

The impugned provis ions

8 No 38 of 2005 .

[20] The impugned provisions of the Refugees Act are as follows:


“ 4. Exclusion from refugee status

(1) An asylum seeker does not qualify for refugee status for the
purposes of this Act if a Refugee Status Determination Officer has
reason to believe that he or she —

(f) has committed an offence in relation to the fraudulent
possession, acquisition or presentation of a South African identity
card, passport, travel document, temporary residence visa or
permanent residence permit; or …

(h) having entered the Republic, other than through a port of entry
designated as such by the Minister in terms of section 9A of the
Immigration Act, fails to satisfy a Refugee Status Determination
Officer that there are compelling reasons for such entry; or

(i) has failed to report to the Refugee Reception Office within
five days of entry into the Republic as contemplated in section 21, in
the absence of compelling reasons, which may include
hospitalisation, institutionalisation or any other compelling reason:
Provided that this provision shall not apply to a person who, while
being in the Republic on a valid visa, other than a visa issued in
terms of section 23 of the Immigration Act, applies for a sylum …’

21. Application for asylum

(1B) An applicant who may not be in possession of an asylum transit visa as
contemplated in section 23 of the Immigration Act, must be interviewed by an
immigration officer to ascertain whether valid reasons exist as to why the
applicant is not in possession of such visa. ”

[21] The impugned regulations are as follows:

“ Application for asyl um

8. (1) An application for asylum in terms of section 21 of the Act must ―

(c) be submitted together with―

(i) a valid asylum transit visa issued at a port of entry in terms of
section 23 of the Immigration Act, or under permitted
circumstances, a valid visa issued in terms of the Immigration
Act;

(2) Any person who submits a visa other than an asylum transit visa issued
in terms of section 23 of the Immigration Act must provide proof of
change of circumstances in the period between the date of issue of the
visa and the date of application for asylum.

(3) Any person who upon application for asylum fails at a Refugee
Reception Office to produce a valid visa issued in terms of the
Immigratio n Act must prior to being permitted to apply for asylum, show
good cause for his or her illegal entry or stay in the Republic as
contemplated in Article 31(1) of the 1951 United Natio ns Convention
Relating to the Status of Refugee s.

(4) A judicial officer must require any foreigner appearing before the court,
who indicates his or her intention to apply for asylum, to show good
cause as contemplated in sub -regulation (3).”

Meaning of the impugned provisions

[22] The impugned provisions were published as amendments to the Refugees
Act9 and regulations , and took effect on 1 January 2020. The preamble to the
Amendment Act describes one of its purposes as being “to include further provisions
relating to disqualification from refugee status”. Included in these further provisions
are s 4(1)(f), (h) and (i). In terms of the amended s 4, new grounds for exclusion from
refugee status are placed in the hands of a refugee status determination officer. An
asylum seeker does not qualify for refugee status if such an officer “has reason to
believe” that such seeker: has committed an offence in relation to travel or sojourn
documents (s 4(1)(f)); or cannot provide “compelling reasons” for illegal border
crossing (s 4(1)(h)); or cannot provide “compelling reasons” for failure to report to a
refugee reception office with in 5 days of entry ( it is unclear what type of entry is
envisaged ) (s4 (1)(i)).

[23] The refugee status determination officer is thus vested with the sole discretion
to have “reason to believe” that a foreigner has committed an offence pertaining to
unlawful documentation; and the sole discretion to have “reason to believe” that
“compelling reasons” are absent for purposes of s 4(1)(h) or (i). The only guidance
afforded to the refugee status determination officer as to how that discretion is to be
exerc ised is limited to s 4(1)(i), which provides that “compelling reasons… may
include hospitalisation, institutionalisation or any other compelling reason”. Section
21(1B ) however confers a power, not on a refugee status determination officer, but
on an immig ration officer, to “ascertain” whether “valid reasons” exist for why an
applicant for asylum (not refugee status) is not in possession of an asylum transit
visa.

[24] Regulations 8(3) and (4) impose a different test. Instead of the refugee status
determin ation officer (who would be located as a refugee reception office) exercising
the discretion conferred on him or her in terms of s 4, the applicant for asylum must
show “good cause” for illegal entry or sojourn in the Republic before being permitted
to app ly for asylum; and the same applies to “any foreigner” appearing before a court
who indicates their intention to apply for asylum. Because these regulations arise
from the impugned provisions of the Refugees Act, we will focus on the provisions in

9 Refugees Amendment Act 11 of 2017.
the Act, since if they are found to be unconstitutional, the impugned regulations will
be suspended as a result.

[25] During argument before us it became apparent that the applicants now
squarely rel y on an abstract constitutional challenge to the impugned provisions,
despite the reference in their papers and heads of argument to fact-specific cases
of how the provisions have allegedly been implemented by the relevant officials , and
which was the subject of criticism by the respondents.

[26] In order to consider the meaning of the provisions , it is necessary to first have
regard to certain portions of the related piece of legislation to which s 4(1)(h) and (i)
of the Refugees Act and regulation s 8 (1)(c) (i) and (2) refer. Section 23 of the
Immigration Act10 deals with asylum transit visas . Section 23(1) provides that the
Director -General may, subject to the prescribed procedure under which an asylum
transit visa may be granted, issue such a visa to a person who at a port of entry
claims to be an asylum seeker, valid for a period of 5 days only, to travel to the
nearest refugee reception off ice in order to apply for asylum. In terms of s 23 (2 ), and
“[d]espite anything contained in any othe r law” when the visa contemplated in s 23(1)
expires before the holder reports in person at a refugee reception office in order to
apply for asylum in terms of s 21 of the Refugees Act, the holder of that visa “ shall
become an illegal foreigner and be dealt with” in terms of the Immigration Act .

[27] Section 32 of the Immigration Act deals with illegal foreigners . Section 32(1)
stipulates that any illegal foreigner shall depart, unless authorized by the Director -
General in the prescribed manner to remain in South Africa pending his or her
application for a status . Section 32(2) provides that “ [a]ny illegal foreigner shall be
deported.” The applicants do not challenge the constitutionality of any provision i n
the Immigration Act – their focus is on the Refug ees Act.

[28] In Ashebo11 the Constitutional Court dealt with two issues on the facts before
it. The first concerned the period afforded to an illegal foreigner to apply for an
asylum seeker permit in terms of the Refugees Act after entering the country. The

10 No 13 of 2002 .
11 Ashebo v Minister of Home Affairs 2023 (5) SA 382(CC) .
second was whether such an illegal foreigner is entitled to be released from
detention after expressing an intention to seek asylum while awaiting deportation ,
until such time as his or her application is finali sed.12 The Constitutional Court,
referring to the principles established in Ruta13 and Abore14, reiterated that “ until an
applicant ’s refugee status has been finally determined, the principle of non -
refoulement protects the applicant from deportation ” [my emphasis]. This principle is
set out in s 2 of the Refugees Act and provides as follows:

“ 2. General prohibition of refusal of entry, expulsion , extradition or
return to other country in certain circumstances - Notwithstanding any
provision of thi s Act or any other law to the contrary , no person may be
refused entry into the Republic, expelled, extradited or returned to any other
country or be subject to any similar measure, if as a result of such refusal,
expulsion, extradition , return, or other measure, such person is compelled to
return to or remain in a country w here –

(a) he or she may be subjected to persecution on account of his or her race,
religion, nationality, political opinion or membership of a particular social
group; or

(b) his or her life, physical safety or freedom would be threatened on account
of external aggression, occupation , foreign domination or other events
seriously disturbing public order in any part or the whole of that country.”

[29] In Ashebo the applicant entered South Africa illegally with no knowledge of
the laws and regulations of this country, including the 5-day period. He submitted
that regulation 8 (3) of the regulations makes it incumbent upon a n individual seeking
asylum to make application in person at a refugee reception office. Because he had
been detained he was unable to do so . The applicant also referred to s 7(2) and
s 12(1)(a) – (c) of the Constitution . In terms of s 7(2) the State must respect, protect,
promote and fulfil the rights in the Bill of Rights. Section 12(1)(a) –(c) provide that

12 At para 28 .
13 Ruta v Minister of Home Affairs 2019 ( 2)SA329 ( CC) at para 24 .
14 Abore v Minister of Home Affairs 2022 (2) SA 321 (CC) at para 44.
everyone has the right to freedom and security, which includes the right not to be
deprived of freedom arbitrarily or without just cause ; not to be detained without trial;
and to be free from all forms of violence from either public or privat e sources.

[30] However th at applicant did not formally challenge the constitutionality of any
particular provision of the Refugees Act or regulations. This is clear from footnote 30
of the judgment of the Constitutional Court where it was stated that:

“ The applicant challenged the constitutionality of s21(1) of the Refugees
Amendmen t Act in his written submissions. But no claim at all was made for
such relief during the hearing, and accordingly I say no more about this
submission . Nor do I venture any opinion on the constitutionality or otherwise
of any of the amendments to the Refugee s Act and the new regulations
thereto, as no substantial constitutional attack has been launched against
them.”

[my emphasis]

[31] In dealing with the first issue, the Constitutional Court held that it could be
disposed of swiftly since it had already been settled in Ruta and Abore :

“[29] ... These decisions have unequivocally established that once an illegal
foreigner has indicated their intention to apply for asylum they must be
afforded an opportunity to do so . A delay in expressing that intention is no bar
to applying for refugee status. Abore . following Ruta, held that, although a
delay in applying for asylum is r elevant in determining credibility and
authenticity, which must be made by the RSDO , it should at no stage ‘function
as an absolute disqualification from initiating the asylum application process ’.
Until an applicant's refugee status has been finally determined, the principle of
non- refoulement protects the applicant from deportation .”15

[32] Regarding the second issue , the Constitutional Court held:

15 At para 29 .

“[43] It is clear, therefore, that the combined effect of the amended provisions
in ss 4(1)(h) and 4(1)(i) and s 21(1 B) of the Refugees Amendment Act , and
regs 7 and 8(3), is to provide an illegal foreigner, who intends to apply for
asylum, but who did not arrive at a port of entry and express his or her
intention there, wi th a means to evince the intention, even after the five -day
period contemplated in s 23 of the Immigration Act . The illegal foreigner does
so during an interview with an immigration officer at which they must show
good cause for their illegal entry or stay in the country and furnish good
reasons why they do not possess an asylum transit visa, before they are
allowed to apply for asylum.

[44] In my view, these provisions do not offend the principle of non -
refoulement embodied in s2 of the Refugees Act. Th eir effect is by no means
out of kilter with art 31 of the Convention, the fo unt of s2. Rather, they accord
with its import because it too does not provide an asylum seeker with
unrestricted indemnity from penalties . The article provides that a contracting
state may not impose penalties on refugees on account of their illegal entry or
presence in the country , provided the y present themselves without delay to
the authorities and show good cause for their illegal entry or presence.”

[my emphasis]

[33] The Constitutional Court went on to stat e the following in considering whether
there is a lawful basis to detain an illegal foreigner while the process of establishing
good cause for the absence of a visa is completed and an asylum application is y et
to occur:

“[47] It must be observed, at the outset, that the fact that an illegal foreigner is
still entitled to apply for asylum does not negate the fact that he or she has
contravened the Immigration Act by entering and remaining in the country
illegally. Where the detention is solely for the purpose of deportation then the
detention is authorized by s34 of the Immigration Act. However, where the
detained person has been charged with a criminal offence in terms of s49(1),
further detention may also be authorized by the Criminal Procedure Act …”

[34] It found that in either instance release from detention cannot occur , but should
the detained illegal foreigner evince an intention to apply for asylum , he or she :

“[59] .. Is entitled to an opportunity to be interviewed by an immigration officer
to ascertain whether there are valid reasons why he is not in possession of an
asylum transit visa. And he must, prior to being permitted to apply for asylum,
show good cause for his illegal entry and stay in the count ry, as is
contemplated in the above provisions. Once he passes that hurdle and an
application for asylum is lodged, the entitlements and protections provided in
ss 22 and 21(4) of the Refugees Act - being issued with an asylum seeker
permit that will allow him to remain in the country, without delay, and being
shielded from proceedings in respect of his unlawful entry into and presence
in the country until his application is finally determined - will be available to
him.”

[my emphasis]

[35] The applicants argue that Ashebo was, fundamentally , about issues
distinguishable from those in th e current constitutional challenge. It was a case
focused on whe ther an illegal foreign national can be released from detention within
the constraints of the legislation , and not about the effect and/or lawfulness of what
the applicants refer to as the “disbarment regime”. They submit t his must be so,
given the absence of any constitutional challenge to the impugned provisions in that
matter, and the Constitutional Court’s express disavowance of any consideration
thereof. T hey also contend that there are three stages to an asylum application.
The first is when a foreign national i s in South Africa but has not, for whatever
reason, be en able to access a refugee reception office to apply for asylum. The
second occurs once a foreign national has managed to access a refugee reception
office , but is, prior to being permitted to apply for asylum ,16 subject to the disbarment
regime created by the challenged provisions. The third is the application for asylum
itself, which can only commence once the foreign national who is re quired to do so,
has been found to show good cause under the disbarment regime .

[36] In our view it is, subsequent to Ashebo , a two -stage process. The first stage is
to be found in s 21(1B) of the Refugees Act : an illegal foreigner not in possession of
a valid 5 -day asylum transit visa, irrespective of how that came about , must be
interviewed by an immigration officer (not a refugee status determination officer) to
first ascertain wh ether valid reasons exist for why the illegal foreigner is not in
possession of such visa. The second stage only arises once the illegal foreigner has
satisfied th e immigration officer that “valid reasons” exist. However unlike s 4(1)(i),
which appears to be some sort of unclear parallel process where a refugee status
determination officer is provided with guidance by the Refugees Act as to what
“compelling reasons” are for having failed to report to a refugee reception office
within 5 days of entry into th e Republic, the immigration officer, on the plain wording
of s 21(1B): (a) does not need compelling reasons but only needs to satisfy him or
herself of “valid reasons”; and (b) the factors to be taken into account in that
determination lie solely in his or her discretion without the Refugees Act providing
any guidance whatsoever.

[37] As we understand it, t he crux of the applicant’s complaint is that if a foreign
national is not in possession of a valid 5 -day asylum transit visa (whether due to
illegal border crossing or it having lapsed), and that foreign national cannot persuade
an immigration officer that he or she has “valid reasons ” for failure to be in
possession thereof, then that foreign national will not get to the next stage at all . In
other words, so the applicants say, given the over -arching principle of non –
refoulement , it should not be incumbent on such an individual to satisfy a
bureaucratic official of the “valid reasons” requirement in order to exercise the rights
of an asylum seeker .


16 The applicants accept however that certain of the challenged provisions – ie. S 4(1)(f), 4(1)(h) and
4(1)(i) – can in principle operate after a foreigner is allowed to apply for asylum.
[38] The applicants go further , and submit that the overall goal of the challenged
provisions (including s 21(1B) and s 4(1)(i)) is to identify those newcomers who have
no valid or compelling reasons for their adverse immigration status, and deprive
them of access to the asylum system. The respondents take issue with this . They
complain that the applicants’ interpretation is “plainly tendentious” and ignores the
purpose of the provisions as found by the Constitutional Court in Ashebo at
paragraph 43 referred to above, namel y “with a means to evince the intention, even
after the five -day period …” to apply for asylum. In other words , rather than depriving
illegal f oreigners of the possibility to apply for asylum, the provisions create a “safety
valve ” which allows for illegal foreigners to make application, notwithstanding their
illegal presence in the country . The respondents thus assert that in cases of those
individuals who are present in the country unlawfully, they are not shut out. On the
contrary, a process is set out in the Refugees Act which still allows them to submit
an application for asylum status , and to enjoy asylum seeker status in the interim ,
provi ded they show valid reasons or compelling reasons (depending on whether it is
an immigration officer or refugee status determination officer) for their unlawful
presence.

[39] The applicants and amici agree that there is a process in the impugned
provisions which allows illegal foreigners to submit an application for asylum status.
To this extent all are agreed that this is the meaning of the provisions. But it is the
process, t he applicants and amici contend, that is the problem : the very purpose of
non-refoulement , and of refugee law both domestically and internationally, is to
provide shelter to foreign persons who have illegally entered the country or have
become illegal sin ce entry due to the lapsing of their asylum transit visa s, not
because they qualify under the usual immigration procedures but because they have
a well -founded fear of persecution so inhumane that they cannot justifiably be
returned to their countries of origin. To require of them to undergo the so–called
“safety valve” exercise falls foul of that principle , which in truth, they say, is not a
safety valve at all but a threshold requirement . Accordingly the impugned provisions
do not accord wi th overarching principle ; they constitute an unjustifiable limitation
under s 36 of the Constitution ; and in any event cannot serve any legitimate rational
purpose . We thus turn to consider whether the impugned provisions pass
constitutional muster.

Wheth er the impugned provisions pass constitutional muster

[40] The starting point is the right of non- refoulement enshrined in s 2 of the
Refugees Act. In Ruta the Constit utional Court emphasized that this section :

“[24]…is a remarka ble provision. Perhaps it is unprecedented in the history of
our countr y’s enactments . It places the prohibition it enacts above any
contrary provision of the Refugees Act itself - but also places its provisions
above anything in any other statute or legal provision .”

[41] The Constitutional Court recognized in Ruta that the right of non-refoulement
has “ also become a deeply lodged part of customary international law.”17 Since the
inception of the Refugees Act in 1998 , this right has ensured that the asylum system
remains open to all who seek its protection , notwithstanding how or when they
entered South Africa. On that basis, the Constitutional Court in Ruta18 held, with
reference to four earlier decisions of the Supreme Court of Appeal , that:

“[16] Closely consonant, these four decisions establish a body of doctrine
that thrummed with consistency, principle and power … [they] conclusively
determined that false stories, delay and adverse immigration status n owise
preclude access to the asylum application process, since it is in that process
and the re only, that the truth or falsity of an applicant's story is to be
determined …”

[42] That Court explicitly consi dered and rejected an argument advanced on
behalf of the Department of Home Affairs that s 23 of the Immigration Act (dealing
with asylum seeker visas) can serve as a basis to disbar newcomers from seekin g
asylum .19 The applicants are thus correct that it is not necessary for them to
challenge s 23 of the Immigration Act, or s 32 thereof, since the latter is consequent

17 Ruta at para 26.
18 At para 16 .
19 At paras 41 to 43 .
upon the former. Ruta pre-dated the impugned provisions, but Abor e20 was decided
after 202 0. In Abore the Department of Home Affairs submitted that the amendments
had changed the law, so that the principles laid down in Ruta no longer applied. The
Constitutional Court, noting that the amendments were “more stringent ” than their
predecessors, nonetheless concluded that “ the amendments have not taken a way
the shield of non -refoulement from aspirant asylum seekers ”.21

[43] The applicants s ubmit that the impugned provisions introduced an
overlapping set of mechanisms whereby newcomers must first demonstrate
adequate compliance with immigration procedures before they are entitled to apply
for asylum. Having regard to the meaning of the impugned provisions, t his must be
correc t. What is important for present purposes is that s 2 of the Refugees Act
remains as it was before the amendments were made . Accordingly these
amendments must be measured, for purposes of constitutionality , against s 2 and
how it has been interpreted by th e highest court in our country , as well as the
section dealing with interpretation of the Refugees Act in th e Act itself, international
customary law and the instruments to which South Africa has become a signatory.

[44] Section 1A of the Refugees Act , which was also inserted by way of the
amendments in 2020, makes it obligatory for the Act to be interpreted and applied in
such a manner that is consistent w ith: (a) the 1951 United Nations Convention
Relating to the Status of Refugees ; (b) the 1967 United Nations Protocol Relating to
the Status of Refugees ; (c) the 1969 Organisation of African Unity Convention
Governing the Specific Aspects of Refugee Problem s in Africa; (d) the 1948 United
Nations Universal Declaration of Human Rights; and (e) any domestic or other
relevant convention or international agreement to which South Africa is or becomes
a party.

[45] The 1951 Convention is directed at refugees. Section 1 of the Refugees Act
defines a “refugee” as “any person who has been granted asylum in terms of this
Act”. However a person seeking recognition as a refugee in the Republic is defined
as a “asylum seeke r”. In principle, any person who meets the requirements for

20 At para 45 .
21 At para 40 and following.
refugee status is a refugee even before they are formally recognised as such. In
Ruta the Constitutional Court held:

‘[27] Of relevance to Mr Ruta’s position when arrested is that the 1951
Conven tion protects both what it calls “de facto refugees” (those who have not
yet ha d their refugee status confirmed under domestic law), or asylum
seekers and “de jure refugees” (those whose status has been determined as
refugees). The latter the Refugees Act defines as “refugees”. This
unavoidably entails an indeterminate area within which fall those who seek
refugee status, but have not yet achieved it. Domestic courts have also
recognised that non-refoulement should apply without distinction between de
jure and de facto refugees’.

[46] In Scalabrini 322 the Constitutional Court, after reiterating that the principle of
non-refoulement ‘…is a cornerstone of the international law regime governing
refugees’ held:

‘[30] Thus, article 33(1) of the 1951 Geneva Convention and its 1967
Protocol (both ratified by South Africa) provide that no contracting party shall
expel or return refugees to territories where their lives or freedom would be
threatened on account of their rac e, religion, nationality, membership of a
particular social group or political opinion. The 1951 Geneva Convention is
both a status - and rights -based instrument and is underpinned by several
fundamental principles, most notably non -discrimination, non -pena lisation,
and non-refoulement . The principle of non-refoulement is so fundamental that
no reservations or derogations may be made to it. Likewise, article 2(3) of the
1969 OAU Convention, which this country has also ratified, states that no
person shall be returned or expelled to a territory where their life, physical
integrity or liberty would be threatened on account of a well -founded fear of
being persecuted for reasons of race, religion, nationality, membership of a
particular social group or political opinion.

22 Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others 2024 (3) SA
330 (CC) (‘Scalabrini 3’).
[31] The principle of non-refoulement accordingly forms part of customary
international law and international human rights law. Indeed, in their
answering affidavit in the Hi gh Court, the respondents concede that South
Africa has “assumed certain obligations to receive and treat in its territory
refugees in accordance with the standards and principles established in
international law”. And the principle applies to asylum seekers or de facto
refugees (those who have not yet had their refugee status confirmed under
domestic law), as well as de jure refugees (those whose status has been
determined as refugees).’

[47] Ashebo determined that the respondents may not rely on detention to prevent
an illegal foreign national from taking the first step to apply for asylum seeker status.
However in the matter before us – as we see it – the focus is different, namely
whether the impu gned provisions uphold the substance or content of the non-
refoulement principle (of which non -penalisation is one of the considerations). Put
differently, the issue in the present case is not about detention pending an asylum
application but rather whethe r the impugned provisions permit a process which may
scupper that application in the sole discretion of a bureaucratic official (whether it be
an immigration officer or refugee status determination officer).

[48] At the heart of this – and during argument this became the focus of the debate
– is whether or not the assessment by the official concerned includes an evaluation
of the substantive merits of an illegal foreigner’s asylum seeker application in
determining whether: (a) in the case of an immigration officer under s 21(1B); or (b) a
refugee status determination officer under s 4(1)(f), (h) o r (i), the individual
concerned has demonstrated “valid reasons” or “compelling reasons” respectively for
being in South Africa illegally.

[49] In terms of s 21(1B) all that is required – and no more – on its plain wording ,
is that the immigration officer must “ascertain whether valid reasons exist” as to why
“an applicant” is not in possession of an asylum transit visa. The enquiry must thus
logically pertain to t he failure or inability to have procured one within the legislative
scheme of the Refugees Act. The respondents’ counsel were themselves
constrained to say they would be most surprised to discover that such an
assessment did not go any further than that, s ince it would otherwise not be in
compliance with the non-refoulement principle . However they could not point us to
anything in s 21(1B) that this “merits” assessment is an integral part of the
immigration officer’s exercise of the discretionary power conf erred on him or her by
the Refugees Act. Ultimately it was suggested that because courts must try to
interpret statutory provisions in conformity with constitutional imperatives, then we
should interpret s 21(1B) as including a “merits” assessment.

[50] However as the applicants point out, it is impermissible for us to attempt to
breath e constitutional life into a statutory provision which plainly says something
else, even if we wished to ; and in Dawood23 the Constitutional Court stated the
following:

‘[53] Discretion plays a crucial role in any legal system. It permits abstract and
general rules to be applied to specific and particular circumstances in a fair
manner. The scope of discretionary powers may vary. At times they will be
broad, particularly where the factors relevant to a decision are so numerous
and varied t hat it is inappropriate or impossible for the Legislature to identify
them in advance. Discretionary powers may also be broadly formulated where
the factors relevant to the exercise of the discretionary power are indisputably
clear. A further situation may arise where the decision -maker is possessed of
expertise relevant to the decisions to be made. There is nothing to suggest
that any of these circumstances is present here.
[54] We must not lose sight of the fact that rights enshrined in the Bill of
Right s must be protected and may not be unjustifiably infringed. It is for the
Legislature to ensure that, when necessary, guidance is provided as to when
limitation of rights will be justifiable . It is therefore not ordinarily sufficient for
the Legislature me rely to say that discretionary powers that may be exercised
in a manner that could limit rights should be read in a manner consistent with
the Constitution in the light of the constitutional obligations placed on such
officials to respect the Constitution. Such an approach would often not
promote the spirit, purport and objects of the Bill of Rights. Guidance will often

23 Dawood; Shalabi; Thomas v Minister of Home Affairs 2000 (3) SA 936 (CC).
be required to ensure that the Constitution takes root in the daily practi ce of
governance. When necessary, such guidance must be given. Gu idance could
be provided either in the legislation itself or, where appropriate, by a
legislative requirement that delegated legislation be properly enacted by a
competent authority.
[55] Such guidance is demonstrably absent in this case. It is important that
discretion be conferred upon immigration officials to make decisions
concerning temporary permits. Discretion of this kind, though subject to
review, is an important part of the statutory framework under consideration.
However, no attempt has been ma de by the Legislature to give guidance to
decision -makers in relation to their power to refuse to extend or grant
temporary permits in a manner that would protect the constitutional rights of
spouses and family members.
[56] Nor can it be said that there is any legislative purpose to be achieved by
not supplying such guidance at all. The Minister, in his written argument, did
not seek to suggest the contrary. It would be neither unduly complex no r
difficult to identify the consid erations relevant to a justifiable refusal of a
temporary permit. There is no reason therefore for the legislative omission
that can be weighed in the limitations analysis. In this case, the effect of the
absence of such guidance, coupled with the breadth of the discretion
conferred upon immigration officials and the DG by s 26(3) and (6),
significantly undermines the purpose of s 25(9)(b).’
[Footnotes omitted]

[51] It also cannot be gainsaid that a determination of this nature which is
unfavourable to an illegal foreigner may result , without more, in deportation. This
defeats the very purpose of the non-refoulement principle enshrined in s 2 of the
Refugees Act. It also falls foul of international customary law. The respondents
suggested that apart from t he so -called “safety valve” of the determination by an
immigration officer or refugee status determination officer, as the case may be, it is
open to an affected individual to pursue an appeal or review process. But to us this
begs the question: if the s 21(1B) or s 4(1)(f), (h) or (i) assessments do not involve a
“merits” determination as to the substance of the application itself, it is unclear on
what basis such an appeal or review might be predicated. We thus agree with the
applicants that the impugned provisions do not provide a “safety valve” but rather a
threshold requirement which must be successfully met before the merits of an illegal
foreigner’s asylum seeker application can be assessed.

[52] We are fortified in our view by the following. Section 4(1)(i) gives a measure of
guidance to a refugee status determination officer on what he or she should consider
to be “compelling reasons”. These “may include hospitalisation, inst itutionalisation or
any other compelling reason”. It seems therefore that what is contemplated by the
sub-section are factors extraneous to, rather than inclusive of, those contained in s 2
of the Refugees Act, namely that the individual concerned: (a) may be subjected to
persecution in their home country on account of race, religion, nationality, political
opinion or membership of a particular social group; or (b) his or her life, physical
safety or freedom would be threatened on account of external aggres sion,
occupation, foreign domination or other events seriously disturbing public order in
any part or the whole of that country.

[53] As submitted by counsel for the international organisations , the obligation of
non-refoulement is imposed, in differing fo rms, by multiple treaties that South Africa
has – since becoming a democracy – ratified. The formulations are slightly different.
The Refugee Convention applies only to refugees; CAT and ICPPED apply to
specific risks in the country of return. But taken to gether, they impose a broad and
strict obligation on South Africa – not to extradite, deport or otherwise transfer any
person to any country where they would be at real risk of persecution or other
serious human rights violation s. South Africa can only com ply with that obligation if it
assesses, on its merits , any claim by an individual that returning them to a country
would place them at real risk of irreparable harm.

[54] As the international organisations also submitted, non-refoulement is not only
a tre aty obligation. It is a fundamental principle of customary international law and
international human rights and refugee law. It is binding on all states, and is a law in
South Africa in terms of s 232 of the Constitution. The content of the principle of non-
refoulement in international law is aptly summarised by the Special Rapporteur on
the Human Rights of Migrants in a 2021 Report to the Human Rights Council.24 He
emphasises the following:

54.1 It is a “fundamental principle of international human rights and refugee
law” and prohibits the “removal and transfer of any individual, regardless of
their status , when there are substantial grounds for believing that the
individual would be at risk of irreparable harm, such as death, torture or cruel,
inhuman or d egrading treatment or punishment, persecution, enforced
disappearance or other serious human rights violations; and
54.2 The principle is characterised by its absolute nature without any
exception applying to all persons, including all migrants, at all tim es,
irrespective of their citizenship, nationality, statelessness, migration status,
gender, sexual orientation and gender identity.

[55] We note that art 33(2) of the Refugees Convention provides a narrow
exception to the principle of non-refoulement . It states that the benefit of art 33(1)
which encapsulates the principle of non-refoulement , ‘may not, however, be claimed
by a refugee whom there are reasonable grounds for regarding as a danger to the
security of the country in which he is, or who, having been convicted by a final
judgment of a particularly serious crime, constitutes a danger to the community of
that country’. This exception is not recognised in customary international human
rights law. The OAU Convention , CAT and ICPPED do not include any exception to
the principle. The Committee against Torture – which interprets CAT – has made
clear that there are no exceptions when it comes to the risk of torture or inhumane
and degrading treatment. The European Court of Human Rights has taken the same
approach, as has the House of Lords.25 The inevitable result is that, even in cases of
a risk to national security, before deporting , a state must make an assessment of

24 Special Rapporte ur on the Human Rights of Migrants Report on Means to Address the Human
Rights Impact of Pushbacks of Migrants on Land and Sea , A/HRC/47/30 (12 May 2021).
25 The sources are: General Comment No 31 (n 14) at para 12; CCPR General Comment No 20:
Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment)
(1992) at para 9. See also International Organisation for Migration IML Information Note on the
Principle of Non -refoul ement (2023) at 9; Seid Mortesa Aemei v Switzerland, Communication No
34/1995, U.N. Doc. CAT/C/18/D/34/1995 (1997) at para 9.8; D v the United Kingdom 24 EHRR
423, [1997] ECHR at para 47; Secretary of State for the Home Department v Rehman [200 3] 1 AC
920.
whether the deportation is consistent with the principle of non-refoulement . In our
view this must necessarily also include a “merits” assessment.

[56] As the international organisations submit, irregular entr y by a ref ugee or
asylum seeker cannot serve a s a bar to have their refugee status determined. To do
so would be in conflict with what is required in terms of South Africa’s international
law obligations. The only way to determine if they are a bona fide refugee is to
conduct a proper evaluation of their application. Refusing to evaluate an application
because of the way a person entered South Africa inevitably creates the risk that
people will be removed contrary to the principle of non-refoulement .

[57] HSF submits, correctly in our view, that the effect of the impugned provisions
is aggravated by the harm they impose on children: they have the consequence that
children of asylum seekers who fail to show “valid reasons” or “compelling reasons”
will be deport ed with their parents, in circumstances where the substantive merits of
the asylum application are not assessed at all. Furthermore, the impugned
provisions unjustifiably limit the constitutional rights of children who are illegal
foreigners while living i n South Africa, depriving them of their most basic rights.

[58] HSF focuses on children who are accompanied by parents or guardians in
their asylum claims. The y are referred to as dependents in the legislative scheme (as
opposed to unaccompanied minors who se circumstances are regulated by other
provisions in the Refugees Act and Immigration Act ). The starting point is that a child
is entirely dependent on the conduct of the parents/guardians, for both an asylum
transit visa and an asylum application:

58.1 The application for an asylum transit visa under s 23 of the Immigration
Act must be made in terms of Form 17 to the Immigration Regulations.26 Form
17 provides that the person applying for the asylum transit visa must complete
the Form for their dependent s as well;
58.2 As for an asylum seeker application, the Refugees Act defines a child
as anyone under 18 years of age and includes children under the definition of

26 Published in GN R413, GG 37679 dated 22 May 2014.
dependents.27 The person seeking asylum is then instructed to include their
dependents in their application. Children are thus treated as dependents in
those applications;
58.3 The legislative scheme ties the state of the child directly to that of their
parent/guardian. Section 21(2A) of the Refugees Act provides that ‘(a)ny child
of an asylum seeker born in the Republic and any person included as a
depend ant of an asylum seeker i n the application for asylum has the same
status as accorded to such asylum seeker’. Accordingly, if the parent is
disbarred for failing to comply with the procedural requirements of the
impugned provisions, their child is similarly disbarred even if they have a
meritorious asylum claim. In this way, children are placed in harm of
refoul ement . Children may also face a host of other harms, since they live
with the fear of arrest and detention. In addition they are denied other rights
whilst being illegally i n South Africa, because children without documentation
experience many difficulties, including gaining access to healthcare,
education and available social assistance.28 This has been recognised by the
Constitutional Court in Scalabrini 3 :
‘[42] Children’s applications for asylum are generally tied to those of
their parents. The deemed abandonment of parents’ asylum
applications has had drastic consequences on their children. CoRMSA
adduced evidence that the children of an asylum seeker whose
application wa s deemed to be abandoned could not attend school for
the entire 2020 academic year because they had no visas. In another
case, an asylum seeker’s son could not register for matric. Like their
parents, without visas, children also face the risk of arrest, d etention
and deportation. As this Court said in Centre for Child Law , it is unjust
to penalise children for matters over which they have no power or
influence’.
[Footnote omitted]

27 In terms of s 1 of the Refugees Act.
28 See, for example, Centre for Child Law v Minister of Basic Education 2020 (3) SA 141 (ECG)
concerning the exclusion of undocumented children from schools; and Centre for Child Law v
Director -General Department of Home Affairs [2020] ZAECHGHC 43, concerning a challenge to
the Births and Deaths Registration Act to the extent that it leaves children without birth certificates.
The latter challenge was subsequently upheld by the Constitutional Cou rt in Centre for Child Law v
Director -General: Department of Home Affairs 2022 (2) SA 131 (CC).

[59] The first underlying principle is that children are individual right bearers and
not mere appendages of their parents. The s econd is that , even if it can be justified
that a parent ought to be barred from applying for asylum for procedural missteps –
which we have found cannot be countenanced – children are not to be penalised for
the missteps of their parents. We deal with each of these principles.

[60] Sections 28(1)(d) and 28(2) of the Constitution place positive obligations on
the state to protect child ren, given their high level of vulnerability. The right springs
from the realisation that children are individuals with personality distinct from that of
their parents. As the Constitutional Court noted in S v M29 ‘every child has his or her
own dignity’ . A child is to be constitutionally imagined ‘as an individual with a
distinctive personality, and not merely as a miniature adult waiting to reach full
size’.30

[61] The Constitutional Court has also stressed that ‘the recognition of the innate
vulnerabilit y of children is rooted in our Constitution, and protecting children forms an
integral part of ensuring the paramountcy of their best interests’ and underscored
‘the importance of the development of a child, and the need to protect them and their
distincti ve status as vulnerable young human beings’ .31

[62] Included in this is a crucial procedural component: the right to be heard.
Children are to be heard in all matters concerning their interests, before actions that
have an adverse effect on their rights. In AB v Pridwin ,32 the Constitutional Court
confirmed that s 28(2) ‘incorporates a procedural component, affording a right to be
heard where the interests of children are at stake’. Moreover the same court stated
that ‘it is essential in asylum applications, to pay due regard to constitutional
recognition of children as individuals, with distinctive personalities and their own
dignity, who are entitled to be heard in every matter concerning them’.33 We agree
with HSF that the impugned provisions are at odds with this principle. T heir impact

29 S v M (Centre for Child Law as Amicus Curiae) 2008 (3) SA 232 (CC).
30 At para 18.
31 Centre for Child Law and Others v Media 24 Limited and Others 2020 (1) SACR 469 (CC) at paras
71 to 72.
32 AB v Pridwin Preparatory School 2020 (5) SA 327 (CC) at para 141.
33 S v M at para 43.
is, effectively, that a disbarment of the parent(s)’ asylum application equates to a
refusal to consider the separate merits of the child’s asylum claim. In this way, the
impugned provisions regard children as appendages, whose fate is tied to the
conduct of their parents, with no regard to the merits of their own claims. Put
differently, even if it could be justified to disbar an asylum seeker based on conduct
unrelated to the merits of their claim, it cannot be justifiable to disbar their chil dren
from applying for asylum based on the conduct of those parents. This principle has
three times been repeated by our Constitutional Court in various contexts.

[63] First, in relation to criminal sanctions of parents, in S v M it was held that:

‘Every c hild… cannot be treated as a mere extension of his or her parents,
umbilically destined to sink or swim with them. The unusually comprehensive
and emancipatory character of section 28 presupposes that in our new
[Constitutional] dispensation the sins and t raumas of fathers and mothers
should not be visited on their children .’34

[64] Second , the same court found in Centre for Child Law v Director -General :
Department of Home Affairs35 that it is fundamentally unjust to penalise children for
matters over which they have no power or influence. Third, this was repeated
subsequently, in Scalabrini 3 . HSF emphasises the similarities between Scalabrini 3
and the present application. Scalabrin i 3 dealt with the lapsing of asylum seeker
permits due to procedural missteps of asylum seekers. The Constitutional Court
struck down the sections that provided for the permits to lapse as they violated the
right of non-refoulement , no matter how severe t he procedural missteps. That court
specifically considered the rights of children and concluded that the fact of a parent’s
asylum seeker permit lapsing cannot prejudice the child of the asylum seeker.36

[65] We have alread y touched on the paramountcy prin ciple enshrined in s 28(2)
of the Constitution. We agree with HSF that the impugned provisions are not capable
of an interpretation that protects the best interests and dignity of children in their own

34 At para 18.

35 See fn 28 above at paras 71 to 74.
36 At para 42.
right. In fact, children have no say in the determination at all. Although it has been
accepted that s 28 rights are not absolute,37 the positive obligation resting upon the
state , coupled with the court’s obligation to act in the best interests of the child
generally, has consequences for the appli cation of s 36 of the Constitution, simply
because s 28(2) requires the rights of the child to take precedence over other state
interests. Moreover, the same section sets out the rights of every child irrespective of
status: the draft ers of the Constitutio n consciously included all children within our
borders as rights holders and did not reserve the s 28 rights only for citizens. The
respondents themselves rightly do not suggest that the s 28(1)(d) right of children to
be protected from maltreatment, negle ct, abuse or degradation, is restricted to abuse
only taking place within South Africa’s borders. Thus any legislation that enables the
state to send children to jurisdictions where they may be subject to such abuse
(particularly in circumstances where the y are at the mercy of their parents and
government officials) must be in conflict with s 28(1)(d). HSF thus agrees with the
applicants that the impugned provisions are not rational; and that being the case
there is no saving them, and they must be declared unconstitutional and invalid. HSF
also points out that the impugned provisions cannot pass the s 36 justification
analysis – indeed the respondents have not seriously attempted to justify a violation
if s 36 was even to come into play.

[66] In our view it matters not that a parent could raise the impact on their children
in their own good cause hearing, since this is irrelevant to the requirement of valid or
compelling reasons for non -compliance with procedural requirements. Put simply, we
are unable to pl ace any benign interpretation on the impugned provisions vis -à-vis
children.

[67] HSF, as previously indicated, also referred us to the CRC and African
Charter. These in essence reaffirm that the best interests of the child is a paramount
consideration. S outh Africa is bound to the provisions of both. Accordingly, the
impugned provisions should be consistent with these instruments, which, for the
reasons already give n, it is our view they are not. We have also considered the other

37 S v M at para 26.
international instruments to which we were referred by HSF, with particular reference
to children. All of them support our view.

[68] To round off, we emphasise what the Constitutional Court held in Ruta :

‘[58] At a time when the world is overladen with cross -border migrants,
judges cannot be blithe about the administrative and fiscal burdens
refugee reception imposes on the receiving country. South Africa is
amongst the world’s countries most burdened by asylum seekers and
refugees. That is part of our African history, and it is part of our African
present. It is clear from cases this court has heard in the last decade
that the Department is overladen and overburdened, as indeed is the
country itself. South Africa is also a much -desired destination. As the
High Court noted in Kumah, the system is open to abuse, with the
ever-present risk of adverse public sentiment.
[59] Yet, as in Makwanyane and Mohamed and Tsebe , and many
other cases, our founding principles as a constitutional democracy
direct us with unavoidable clarity. There are solutions to the problems
of refugees, and they lie within the principles expressly articulated in
and underlying our existing statutes.’
[Footnotes omitted]

The question of s 172(2)(b) relief

[69] In terms of s 172(2)(b) of the Constitu tion, a court which makes an order of
constitutional invalidity may grant a temporary interdict or other temporary relief to a
party, pending confirmation or otherwise by the Constitutional Court. In prayer 4 of
their amended notice of motion, the applican ts seek an interdict against the
respondents from:

‘4.1 Deporting or causing any foreign national who has indicated an intention
to seek asylum under the Act to be deported or otherwise compelled to
return to their countries of origin unless and until their asylum application
has been finally rejected on its merits;
4.2 Implementing sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Act and
Regulations 8(1)(c)(i), 8(2), 8(3) and 8(4)… including not arresting and/or
detaining foreign nationals pu rsuant to the application of these
provisions; or
4.3 Refusing to allow any person to apply for asylum on the basis of the
provisions listed in paragraph 4.2 above;…’

[70] The applicants note, correctly, that: (a) in the ordinary course, any order of
this court regarding the constitutional invalidity of the impugned provisions of the Act
would only be effective once confirmed by the Constitutional Court in accordance
with s 167(5) of the Constitution; but (b) any order regarding the unlawfulness of the
impu gned regulations would apply immediately, and would not have to be confirmed
by the Constitutional Court. In our view the interim relief sought by the applicants is
too far -reaching and would effectively have the consequence that we step into the
shoes of the legislature for an indefinite period. This does not sit comfortably with us.
In the Part A proceedings, the respondents agreed to limited relief, which was
curtailed in the judgment and order pertaining to that relief to the following:

‘The respondents are interdicted from initiating any process to deport any
foreign national present in the Republic in the event that such foreign national
has indicated an intention to make an application for asylum – in terms of
section 21 [1B] of the Refugees Act 130 of 1998.’

[71] The applicants themselves say that the order in Part A has had the
unintended consequence that the respondent s have ceased to allow any new
asylum seekers to apply for asylum. In other words, the asylum system has been
shut down. The re spondents, in the ir supplementary note, highlight a number of
possible practical difficulties if we were to grant the s 172(2)(b) relief the applicants
seek. They range from the potentially prejudicial consequences to individuals who
are in the country law fully under another type of visa, and who now seek to apply for
asylum, having the onus of proving a change in circumstances whisked away from
them, leaving them only with the “valid reasons” threshold, to the “protections” of
regulation 8(4) being denied to individuals who appear before court on a charge of
being an illegal foreigner under the Immigration Act.

[72] We have weighed all of this up. We have also taken into account that the
constitutional challenge before us is an abstract one; and accordingl y there is
nothing to prevent any particular affected individual from approaching court in his or
her own right for the relief granted in Ashebo , or any other relief, given our findings
and pending confirmation or otherwise by the Constitutional Court. We deliberately
adopt a cautious approach in declining to grant any s 172(2)(b) relief, because as
indicated, the ramifications to hundreds of thousands of individuals in this country, as
well as the respondents, are potentially both too risky and too great. We shall thus
simply suspend our declaration of invalidity of the regulations pending the outcome
of the confirmation proceedings in relation to the impugned statutory provisions by
the Constitutional Co urt (the latter are automatically suspended in terms of
s 172(2)(a)).

Costs

[73] The costs of Part A were ordered to costs in the cause in Part B. The
Biowatch38 principle applies. The applicants have been substantially successful.
Although not possible to say with certainty, we are comfortable with attribu ting
roughly 20% of the applicants’ costs to the unsuccessful application for the
s 172(2)(b) relief. It is well settled that an amicus curiae appears not as a party, but
as a friend of the court, and is thus not generally entitled to costs39 (none of the amici
seek costs in any event). Both the applicants and the respondents employed three
counsel. All were agreed that, if costs were to be awarded, they should be on Scale
C.

[73] The following order is made:

1. It is declared that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the
Refugees Act 130 of 1998 (“the Act”) are inconsistent with the

38 Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) at paras 21 to
28.
39 See inter alia Eskom Holdings Soc Ltd v Resilient Properties (Pty) Ltd 2021 (3) SA 47 (SCA) at
para 92.
Constitution of the Republic of South Africa, 1996 (“the
Constitution”) and invalid;
2. It is declared th at regulations 8(1)(c)(i ), 8(2), 8(3) and 8(4) of the
Refugee Regulations, published in GNR 1707, Government
Gazette 42932, on 27 December 2019 (“the Regulations”) are
inconsistent with the Constitution and invalid;
3. In terms of section 172(2)(a) of the Constitution, paragraph 1 of
this order is referred for confirmation or otherwise by the
Constitutional Court;
4. The declaration in paragraph 2 of this order is suspended pending
the outcome of the proceedings referred to in paragraph 3 above;
5. The interim interdict granted i n Part A of this application is
discharged;
6. The relief sought by the applicants in terms of section 172(2)(b) of
the Constitution is refused; and
7. The respondents shall pay 80% of the applicants’ costs (including
those incurred in respect of Part A) on Scale C (party and party),
jointly and severally, the one paying, the others to be absolved,
and including the costs of 3 (three) counsel where so employed.


_____________________
JUSTICE J CLOETE
I agree .
_____________________
JUSTICE L NUKU
I agree.
_____________________
ACTING JUSTICE S KHOLONG


For the applicants : Adv A Katz SC with Adv D Simonsz and Adv G Slingers
Instructed by : Lawyers for Human Rights (Ms N Mia)

For the respondents : Adv N Arendse SC with Adv D Borgstrom and Adv A
Nacerodien
Instructed by : Denga Inc. (Mr A Denga )

For the first to third amici : Adv M Bishop with Adv M Mokhoaetsi
Instructed by : Cliffe De kker Hofmeyr Inc. (Mr G Xaba )

For the fourth amicus curiae : Adv I De Vos
Instructed by: Norton Rose Fulbright S outh Africa Inc. (Mr J Whyte )