IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION , JOHANNESBURG)
(l) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED.
l
-
SIGNATURE DATE: 2 September 2026
In the matter between:
SOLLY ERED
and
MINISTER OF HOME AFFAIRS
DIRECTOR-GENERAL: HOME AFFAIRS
Summary
Case No. 2026-163100
Applicant
First Respondent
Second Respondent
The effect of the decision of the Constitutional Court in Sca/abrini Centre of Cape Town
v Minister of Home Affairs [2026] ZACC 30 (7 July 2026) is that putative asylum
seekers may no longer be detained once they have indicated their wish to apply for
refugee status.
JUDGMENT
WILSON J:
1 On 14 July 2026, I ordered the immediate release of the applicant, Mr. Ered,
an asylum seeker, from the Lindela Repatriation Centre. My order departed

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from the usual approach to matters of this nature (on which see Shamore v
Minister of Home Affairs [2024] ZAGPJHC 414 (2 May 2024) (“Shamore”)).
This is because, a week before I gave my order, the Constitutional Court’s
decision in Scalabrini Centre of Cape Town v Minister of Home Affairs [2026]
ZACC 30 (7 July 2026) had fundamentally altered the law applicable to the
detention of asylum seekers in South Africa. In light of this, it is in the interests
of justice that I give my reasons for ordering Mr. Ered’s immediate release.
These are my reasons.
The applicant
2 Mr. Ered arrived in South Africa in 2021. He fled from Ethiopia, having been
subject to what he contends was persecution and threats of death arising from
his political beliefs. Mr. Ered says that he tried to apply for asylum but was
turned away from the Refugee Reception Offices he attended.
3 On 20 March 2026, Mr. Ered was arrested at Windsorton in the Northern Cape.
Despite, he says, indicating to his arresting officers that he wanted to apply
for asylum, Mr. Ered was prosecuted under section 49 (1) (a) of the
Immigration Act 13 of 2002, which states that “[a]nyone who enters or remains
in, or departs from the Republic in contravention of this Act, shall be guilty of
an offence and liable on conviction to a fine or to imprisonment not exceeding
two years”. As an undocumented foreigner, Mr. Ered was technically in
contravention of this provision, but the reason for this, he says, was that he
was never given an opportunity to apply for an asylum seeker permit, despite
having made reasonable efforts to present himself to a Refugee Reception
Office.

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4 Mr. Ered was convicted of contravening section 49 (1) (a) and sentenced to
three months’ imprisonment. Once he had served his sentence, he was
detained again under section 34 (1) of the Immigration Act pending
deportation. Section 34 (1) of the Act states that “[w]ithout the need for a
warrant, an immigration officer may arrest an illegal foreigner or cause him or
her to be arrested, and shall, irrespective of whether such foreigner is
arrested, deport him or her or cause him or her to be deported and may,
pending his or her deportation, detain him or her or cause him or her to be
detained in a manner and at a place determined by the Director-General”. Mr.
Ered was transferred to the Lindela Repatriation Centre.
5 On 14 July 2026, Mr. Ered placed an application for release on my urgent roll.
He alleged that, as a prospective asylum seeker, he had the right to be
released merely upon indicating his intention to apply for asylum. Whether that
submission is well-founded requires a short excursus of the way the law
applicable to asylum seeker detention has developed. In providing that
excursus, I borrow heavily from what is said in paragraphs 7 to 10 of my
decision in Shamore.
The lawfulness of asylum seeker detention
6 Until fairly recently, the rule was that South Africa does not place asylum
seekers in detention. If an asylum seeker was arrested for being unlawfully in
the country, they had only to indicate that they wished to apply for asylum,
having not yet been given an opportunity to do so. At that point they had to be
released immediately, and afforded the opportunity to apply for asylum under
the Refugees Act 130 of 1998. The theory underlying this rule was that arrest

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and detention as an illegal foreigner under the Immigration Act could not
survive an asylum seeker’s intimation that they wished to apply for asylum,
since the entitlement to asylum must be dealt with under the Refugees Act,
which does not authorise the detention of those seeking refugee status. This
was the nett effect of a series of Supreme Court of Appeal and Constitutional
Court decisions culminating in Ruta v Minister of Home Affairs 2019 (2) SA
329 (CC) (“Ruta”). (See also Abraham v Minister of Home Affairs 2023 (5) SA
178 (GJ) (“Abraham”), especially paragraphs 36.1 to 36.3).
7 It is easy to see why this was the approach. Asylum seekers are not always
able to apply for refugee status at the time they enter South Africa. It has to
be assumed that any genuine asylum seeker is in fear for their safety, often
without official documents from their country of origin, frequently in the process
of fleeing persecution without being able to make arrangements for their arrival
at their country of final destination, and hardly trusting of official authority of
any sort.
8 For these reasons, an asylum seeker will often cross the border clandestinely.
Once in South Africa, they are confronted with a severely limited number of
refugee reception offices (five by my count), and they often face barriers of
access to those offices of the nature Mr. Ered says he experienced in this
case, and of the nature recorded at paragraph 1 of my decision in Shamore.
The commitment not to detain those who wish to apply for asylum was a
humane recognition of the fact that detention for the purposes of deportation,
or in response to the contravention of immigration rules, should only follow

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once it has been established that an application for asylum is genuinely
without merit.
9 On 1 January 2020, however, section 21 (1B) of the Refugees Act came into
force. That provision requires that an aspirant asylum seeker present in South
Africa without a valid visa “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”. Section 21 (1B) must be read with subsections 4 (1)
(h) and (i) of the Refugees Act which provide that a person does not qualify
for refugee status if an immigration officer has reason to believe either that
they “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 that they have “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” .
Regulation 8 (3) of the Refugee Regulations provides that an aspirant asylum
seeker who does not possess a valid visa must “prior to being permitted to
apply for asylum show good cause for his or her illegal entry or stay in the
Republic” (my emphasis).
10 The nett effect these provisions was that an asylum seeker was prevented
from applying for refugee status if they entered South Africa other than at a
port of entry, or failed to report to a Refugee Reception Office within five days

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of entering the country, unless they could show good cause for having done
either of these things.
11 The question that naturally arose from these amendments was whether
putative asylum seekers who had been locked out of the refugee system under
this new statutory framework were subject to detention as illegal foreigners,
and whether, if they were, on what terms.
12 In Ashebo v Minister of Home Affairs 2023 (5) SA 382 (CC) (“Ashebo”) at
paragraphs 46 to 60, the Constitutional Court answered that question. The
court held that , absent a challenge to the constitutional validity of the
amendments to the Refugees Act, an asylum seeker found in South Africa
without a valid visa can be detained pending a good cause interview, even if
they immediately indicate that they wish to apply for asylum. The court also
held that the asylum seeker’s detention becomes unlawful if such an interview
is not organised within a reasonable time, and if there is no other basis on
which their detention can be justified. If a good cause interview is arranged,
detention may continue until such time as the asylum seeker has shown good
cause for being in South Africa without a valid visa. Once good cause is
shown, the asylum seeker must be released, and permitted to apply for
asylum.
The decision in Scalabrini
13 That position endured until 7 July 2026, when the Constitutional Court gave
judgment in Scalabrini. In that judgment the Constitutional Court, having
considered a challenge to the constitutional validity of the Refugees Act
amendments, confirmed the order of the High Court in Scalabrini Centre of

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Cape Town and Another v Minister of Home Affairs [2025] 3 All SA 827 (WCC),
which declared constitutionally invalid sections 4 (1) (f), 4 (1) (h), 4 (1) (i) and
21 (1B) of the Refugees Act. The High Court had also struck down Regulation
8 (3), but that order did not require confirmation. The consequence of the
decisions of the High Court and the Constitutional Court, which came into
effect immediately upon delivery of the Constitutional Court’s judgment, was
that the “good cause” interview process lost its footing in law. In other words,
the failure to show good cause or compelling reasons for illegal entry to or
presence in South Africa could no longer operate as a barrier to the asylum
application process. The Scalabrini decision also superseded paragraphs 46
to 60 of the Constitutional Court’s earlier decision in Ashebo, since those
paragraphs were no more than an interpretation of a statutory regime that no
longer existed.
14 The nett effect of all of this is that, until the Constitutional Court says otherwise,
the principles spelt out in Ruta, and in the “quartet” of Supreme Court of
Appeal decisions that Ruta endorsed (see Ruta, paragraph 16), continue to
apply. Chief among those principles is that release from detention under the
Immigration Act must follow immediately upon the detainee evincing an
intention to apply for asylum, and asylum seeker detention is unlawful once
an intention to apply for asylum has been expressed. In other words, the law
has returned to the state it was in immediately before the provisions the
Constitutional Court struck down in Scalabrini came into effect.
15 It followed from all of this that, at the time his application came before me,
there was nothing to do but to release Mr. Ered immediately, since he had

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intimated his intention to apply to asylum and was entitled to liberation on that
basis.
The decision in Mnamo
16 While finalising this judgment, I had the benefit of the decision of this court in
Mnamo v Minister of Home Affairs [2026] ZAGPJHC 948 (25 August 2026). In
that matter, the court dealt with twenty applications for release from the
Lindela Repatriation Centre brought by putative asylum seekers. The court
declined to order their release, despite apparently recognising (a) that the
applicants had all indicated that they wished to apply for asylum and had in
fact attempted to take steps to do so (Mnamo, paragraph 2) and (b) that the
“good cause” regime ushered in by the amendments to the Refugees Act
struck down in Scalabrini could no longer be applied (Mnamo, paragraph 1).
17 In reaching this conclusion, the court relied upon paragraphs 59 and 60 of the
decision in Ashebo. Those dicta, the court appears to have held, entitled it to
refuse to release the applicants and to direct the Minister for Home Affairs “to
transport the relevant immigration and refugee officials to Lindela Repatriation
Cent[re] to conduct the necessary processes; [and] if unable to do so, [to]
transport the applicants to the nearest Refugee Reception Office for
processing” (Mnamo, paragraph 39.3). It is not clear to me whether the
direction to convey the applicants to a Refugee Reception Office implies the
applicants’ ultimate release, but the tenor of the Mnamo judgment appears to
be that the applicants must remain in detention, albeit safe from deportation,
at least until their asylum seeker permits have been issued.

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18 I cannot support this approach. It is, in my view, without legal foundation. The
reliance on Ashebo is misconceived, since Ashebo dealt only with detention
pending a good cause interview, which, for the reasons I have given, is no
longer part of the refugee application process. The Mnamo judgment’s failure
to apply the decision in Ruta is, in my respectful view, erroneous. On the facts
set out in the Mnamo judgment, the applicants should have been released.
19 It appears that the decision in Mnamo was animated to some degree by what
the court believed to be “the views of organizations such as Dudula and March
and March” which the court identified with “the views of the impoverished and
downtrodden members of the society” (Mnamo, paragraph 37). I do not think
that the two can be treated as identical. I have my doubts about whether
xenophobic organisations have much support among the poor and the
vulnerable, most of whom may well strive to avoid the egregious mistake of
blaming the poverty they endure on the presence of foreign nationals in South
Africa.
20 That aside, the more fundamental point is that the duty of a court is not to
channel the views it attributes to a judicially constructed vision of a virtuous
majority, but to apply the law as it stands. As the Constitutional Court has said,
public opinion may possibly be relevant to the interpretation of the
Constitution, but it forms no part of the judicial function to make decisions
based directly upon what the dominant views of the general public are thought
to be (see S v Makwanyane 1995 (2) SACR 1 (CC) paragraphs 87 to 89). In
other words, courts are duty bound to enforce the rights and freedoms set out

in the Constitution and the law, no matter what a particular court, or anyone
else, might think of them.
21 It was for these reasons that I ordered Mr. Ered's immediate release.
SD J WILSON
Judge of the High Court
This judgment was prepared by Judge Wilson. It is handed down electronically by
circulation to the parties or their legal representatives by email, by uploading it to the
electronic file of this matter on Caselines, and by publication of the judgment to the
South African Legal Information Institute. The date for hand-down is deemed to be 2
September 2026.
HEARD ON:
DECIDED ON:
REASONS:
For the Applicant:
For the Respondents:
14 July 2026
14 July 2026
2 September 2026
PMT Madubanya
Instructed by Mohlala PP Attorneys Inc
No appearance
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