Last week, a procedural Constitutional Court judgment regarding asylum seekers led to riots and protests in Durban and Soweto. The xenophobic violence was fuelled by a deliberate disinformation campaign by March and March and others, who falsely claimed a Home Affairs directive granted asylum seekers residency, or citizenship or voting rights. Perhaps less clear is how this all came about.
Background to the Constitutional Court case
In February 2026, the Scalabrini Centre of Cape Town and Lawyers for Human Rights took the Department of Home Affairs (DHA) to court to challenge procedural impediments to asylum applicants.
The amendment to the Refugee Act (which came into operation in 2020) requires that asylum seekers – at a designated port of entry – obtain a transit visa to travel to one of South Africa’s five Refugee Reception Offices (RROs) in Musina, Pretoria, Durban, Gqeberha and Cape Town. The transit visa gives asylum seekers five days to travel and be admitted into an RRO to lodge an asylum application.
Implemented since 2024, the DHA has effectively disqualified anyone (i) without an asylum transit visa, (ii) with a transit visa but not at an RRO within the five days, (iii) without another valid visa, and (iv) who entered South Africa not through a designated port of entry, from even lodging an asylum application. Between April 2022 and March 2024, the DHA issued only 91 asylum transit visas, suggesting immigration officials rarely hand them out. As the 2021 case of 22 Afghan nationals being denied entry demonstrates, undocumented asylum seekers are more likely to be turned away at the border.
Court decision
In July, the court decided that blocking asylum applications from even being made – for procedural noncompliance – was invalid. To do so amounts to possible refoulement – forcibly returning an asylum seeker to a country where they face a clear risk of persecution, torture, violence or other serious harm.
The court found that the “good cause” interviews the DHA has been conducting to determine if the applicant has “valid reasons” for not being in possession of a transit visa are invalid. The court determined that the Act and the regulations “have no guidance whatsoever, creating a real risk of arbitrary and inconsistent decision-making”. I spoke to several refugee bodies, and they say that virtually no one “passed” the interview, with a real lack of clarity about what the criteria for valid reasons are.
The judgment is clear that – in the refugee status determination process itself – procedural issues can form part of the decision as they can speak to credibility. But it cannot be used to block people from applying, with the merits of their case not then heard. And herein lies the crux of the matter: it’s a procedural case about how and when asylum applications can be lodged; it is not a substantive case about how asylum determinations are made.
The DHA directive
On 28 September 2026 – and to meet the 60-day compliance with the court order – the DHA issued a directive that all RROs “must, with immediate effect, receive every person who reports in person and indicates an intention to apply for asylum”, including disallowing “good cause” interviews or any procedural rejections.
On 2 October, Gqeberha was the first to reopen its doors to new applicants, with the other RROs following over the course of the week. There have been long queues outside RROs and – in Durban and Pretoria – intimidation of asylum seekers and DHA staff, including violent demonstrations outside the RRO in Durban, with protesters demanding that the government stop accepting asylum applications.
On Friday, the DHA withdrew the directive, “noting national interest, security considerations and the impracticality in terms of its operationalisation”. While the DHA still needs to find a way to implement the court judgment, we are back to the status quo, with RROs closed to newcomers.
The missing context from the ‘uproar’ about the court judgment
There are several important pieces of the puzzle missing in reporting and narratives. The DHA is reporting that its RROs were “overwhelmed”.
The language used feeds into the notion that South Africa is inundated with undocumented asylum seekers. This response holds no nuance around the basic and fundamental differences between asylum seekers and refugees, and migrants. South Africa hosts about 167,000 refugees and asylum seekers, while there are about 2.4 million international migrants. Refugees and asylum seekers fall under refugee law and seek asylum permits via RROs. Migrants fall under immigration law and apply for visas and permits via VFS offices;
The reports I have seen say that the queues were long, but in the hundreds of people. Speaking to refugee legal representatives, it appears that for both the Gqeberha and Cape Town RROs, those who could not be seen on the day were given appointments for future submission;
The whole response ignores a very stark reality: many RROs have been closed for new applications for a very long time. Before the 2024 procedural close-out, RROs were closed for an extended time during Covid (from March 2020 to May 2022). And Cape Town and Gqeberha RROs were unlawfully closed from 2012 to 2023, and 2011 to 2018 respectively, despite court rulings to the contrary. Indeed, the DHA has a culture of ignoring court rulings, which have gone as far as scathing judgments and ordering the former minister to pay costs; and
On top of this, the DHA often boasts of its 95%-to-100% rejection rate for asylum claims, which has created a huge backlog of 161,000 asylum appeals. While some clearly enter the asylum system without a sound claim, the figure is certainly not close to 100%.
In other words, people with a valid claim to asylum in South Africa have simply not been allowed to apply for extended periods, and, if they do get the chance, there is a very strong likelihood that their application will be rejected.
Another important discussion is around safety and security:
There have been threats to DHA staff and asylum seekers. According to reports and sources, there was intimidation by March and March and other groups at the RROs in Durban and Pretoria. While the police had presence at all RROs, similar incidents do not seem to have taken place at Musina, Cape Town or Gqeberha. Yet the decision was made to withdraw the directive in its entirety;
It appears that in their decision to release the 28 September directive, the DHA did not coordinate or seek input from other bodies, including the Inter-Ministerial Committee on Migration, or refugee groups;
Given the current anti-immigrant sentiment and lead-up to the elections, some experts I contacted suggested that the DHA should have considered an online-only system until it “cools down”. This has been implemented before, around Covid; and
There have also been threats to some journalists and NGO staff this week. March and March are using approaches such as doxxing – publicly revealing private information such as phone numbers and addresses – leading to harassment.
It really is hard to contemplate how a relatively simple procedural matter around asylum applications led to all this. The attacks on the Constitutional Court here reflect a broader pattern of the South African constitutional project under attack. And, apart from the violence, confusion and disinformation by March and March, this really is a mess of Home Affairs’ own making. DM
Comments
Scroll down to load comments...