Section 22(12) and (13) of the Refugees Act 130 of 1998 were presented by the Refugees Amendment Act 11 of 2017, which came into force on 1 January 2020 (J Cassette, E Roos and AB Karjieker ‘Automatic abandonment of asylum application: An analysis of the Scalabrini Centre of Cape Town v Minister of Home Affairs judgment’ (www.cliffedekkerhofmeyr.com, accessed 5-5-2024)).
Section 22(12) and (13), Regulation 9 and Form 3 of the Refugees Regulations provide that asylum seekers who fail to (personally) renew their asylum visa within the period of 30 days on expiry of their asylum are considered to have abandoned their asylum application (Cassette et al (op cit)).
This creates a presumption of automatic abandonment of the application, in an instance where an asylum seeker has failed to renew their asylum within 30 days (Cassette et al (op cit)). Moreover, the provisions place asylum seekers who hold genuine claims at a disadvantage because their genuine claims may lead to further persecution as a result of being deported to where they are from (Cassette et al (op cit)). This perception gives rise to an analysis of the principle of non-refoulement, which provides against one being returned to a place where there is a possibility of facing persecution (Cassette et al (op cit)).
In Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others (Consortium for Refugees and Migrants in South Africa as Amicus Curiae) 2024 (4) BCLR 592 (CC), the Western Cape High Court found that the relevant provisions of the Act are inconsistent with the Constitution and further sought the Constitutional Court (CC) to confirm the order of invalidity (at para 1). In the judgment (where it confirms the invalidity declared by the High Court), the CC noted that, when read, the concerned sections of the Act mean that asylum seekers who fail to apply for the renewal of their asylum seeker visas are considered illegal foreigners for purposes of s 32 of the Immigration Act 13 of 2002 and they may not re-apply for asylum. In the light of the submissions made above, this research piece seeks to assess the principle of non-refoulement in terms of s 22(12) and 22(13) of the Refugees Act as read with Scalabrini Centre of Cape Town.
An analysis of the principle of non-refoulment
Section 2 of the Act gives birth to the principle of non-refoulment by asserting that no person may be refused entry into the South African Republic, extradited, expelled, or returned to another country if such return or refusal will subject such person to persecution or threaten his or her safety and security. This section basically affords non-South Africans a claim against the state.
The Convention Relating to the Status of Refugees (1951) defines a refugee as any person who, as a result of a well-founded fear of persecution, is outside his or her country of origin and fears the return to such country because of issues of race, religion, political opinion etcetera (R Kapindu ‘No Return to Persecution or Danger: Judicial Application of the Principle of Non-Refoulement in Refugee Law in South Africa and Malawi’ (2020) CCR 107). In this instance, refugee means protection (from harm), so a refugee is a person who desperately seeks protection from another state against his or her country of origin.
Kapindu submits that the idea of refugeehood is premised on the principle of surrogate protection, in instances where a country fails to promote and protect human rights and its citizens (Kapindu (op cit)). The author adds that the four major challenges that refugees encounter include -
• gaining access into a state (in order to evade the difficulties of the country of origin);
• safeguarding the right not to be returned to the harmful jurisdiction (non-refoulement);
• arguing the entitlement to the refugee status in terms of the laws of the host state; and
• the challenge of enjoying the basic human rights (that include the right to dignity, equality and life) of such host state (Kapindu (op cit) at 108).
Ultimately, it can be noted that refugees are vulnerable people.
The United Nations High Commissioner for Refugees went as far as submitting that the risk of non-refoulement can be curbed by efforts aimed at ensuring that the host country understands the fact that it has a legal obligation to protect refugees (Kapindu (op cit) at 109). The fact that refugees are people who flee dangers to seek protection from other countries creates an ethical obligation for the receiving countries to protect such refugee seekers.
Kapindu concedes that the non-refoulement principle applies erga omnes, hence the need to ensure that it is duly protected and enhanced by the international community (Kapindu (op cit) at 113). Additionally, the author submits that the principle is not only limited to refugees but every person who is likely to be exposed to danger when returned to his or her country of origin (Kapindu (op cit) at 113).
In Mohamed and Another v President of the Republic of South Africa and Others (Society for the Abolition of the Death Penalty in South Africa and Another Intervening) 2001 (3) SA 893 (CC), it was submitted that the non-refoulement principle ‘makes no distinction between expulsion, return or extradition of a person to another state to face an unacceptable form of punishment. All are prohibited, and the right of a state to deport an illegal alien is subject to that prohibition’ (Kapindu (op cit) at 115).
In Abdi and Another v Minister of Home Affairs and Others 2011 (3) SA 37 (SCA), it was held inter alia, that deporting a person to another country would amount to the subjection of such person to degrading and cruel punishment, which goes against the precepts of the Constitution.
Jurisprudence teaches us that a person who flees their country of origin because of fear of being persecuted, killed, or placed in inhumane situations, may raise the principle of non-refoulement as a defence against being returned to where they are from.
A legal analysis of Scalabrini Centre of Cape Town
During March 2020, the Scalabrini Centre of Cape Town and the Trustees of the Scalabrini Centre of Cape Town (the applicants) launched a two-part application at the Western Cape High Court (at para 5). In Part B, the applicants sought a declaratory order that the relevant provisions of the Act are inconsistent with the Constitution and, therefore, invalid (at para 5). In arguing for the order sought, the applicants submitted that the respondents had created a system wherein asylum seekers who have failed to renew their visas are deemed to have abandoned their asylum applications (at para 6). Additionally, the applicants contended that the sections violate the principle of non-refoulement in that they allow the returning of asylum seekers to places that are considered to pose threat to their lives, physical safety, freedom, and places that are likely to subject the asylum seekers to persecution (at para 7). In the court a quo, the respondents opposed the relief sought by arguing that the relevant sections did not violate the non-refoulment principle because they were justifiable under s 36 of the Constitution (at para 9). The respondents argued that the limitation relates to the backlog that is created by the large number of inactive applications that were made under s 22 of the Refugees Act. As a result of the backlog created, it was submitted that the Department of Home Affairs had some 737 315 inactive applications (at para 9). According to the Auditor General, the backlog referred to would take at least 68 years to deal with (at para 10).
The court held also that the impugned sections were introduced as a way to try and curb the backlog of inactive cases and also, to try and ensure that asylum seekers ‘pursue their applications’ to their end (at para 11). Moreover, reference was made to Abore v Minister of Home Affairs and Another 2022 (4) BCLR 387 (CC), where it was held that the principle of non-refoulement applies for as long as a claim for refugee status has not been rejected on a final basis, after following proper procedures. The court expressed that this means that an application for asylum cannot be deemed to have been abandoned for the failure to renew a visa (at para 12).
As stated previously, the court a quo found that the relevant provisions of the Act violate the non-refoulement principle because they allow the return of refugees to the place from where they fled - a place wherein they may face persecution, torture or death (at para 34).
The CC also noted that the presumption of abandonment of the asylum application violates the right to just administrative action because once the impugned sections are invoked, the application is ‘not considered, let alone determined’ (at para 40).
The mere fact that a visa has not been renewed results in the violation of a number of rights that define humanity. When an application has been abandoned for purposes of the Act, it means that the asylum seekers are treated like illegal foreigners, which results in detention, arrest, and deportation (the rights to personal liberty and life are consequently threatened) (at para 40). Refugeehood is, therefore, presented as a question of international human rights.
At para 47, the court determined that the impugned sections do not serve a legitimate government purpose because they are arbitrary and irrational and, therefore, ought to be ‘struck down as constitutionally bad’.
Conclusion
The High Court was correct in its finding that s 22(12) and (13) of the Act are inconsistent with the Constitution and, therefore, invalid. However, the court a quo went too far by ordering Parliament to amend part of the order in terms of
s 237 of the Constitution. This is because of the limitation created by the separation of powers (trias politica). The principle of non-refoulement serves as an international obligation, not only an obligation for the Republic of South Africa. Jurisprudence teaches us that refugee protection is of paramount importance because international law includes the regulation of human rights on an international scale. Failure by an asylum seeker to renew a visa or an application for asylum does not amount to an abandonment of same.

Veteran politician Patricia de Lille was officially sworn into office as tourism minister on Wednesday. As the former lone opposition government member in the sixth administration, she now enters a Government of National Unity.
Good party leader Patricia de Lille says that after working with the African National Congress (ANC) and the Democratic Alliance (DA) for almost 15 years, she knows that “the best of all of us, whether you are ANC, DA or Good … put our people first”.
De Lille was speaking shortly before being sworn in as tourism minister on Wednesday at the Cape Town International Convention Centre.
De Lille’s Good party is one of 11 parties in the Government of National Unity (GNU). During the previous administration, De Lille was the only opposition member in the executive.
The Good party has only one seat in the National Assembly after receiving 65,814 (0.18%) of the valid votes cast in the 29 May general election.
When asked about the GNU, De Lille said “We’ve got the experience of coalitions in some municipalities. Some of them with the DA, some of them with the ANC … I’ve worked with the DA for over eight years and the ANC for five years.”
The party has worked with the DA and the ANC at the local level since the 2021 local government elections, either to pass budgets, solve council impasses or in a coalition partnership such as Theewaterskloof in the Western Cape.
De Lille split from the Democratic Alliance in 2018 after a protracted public spat. The current DA leader, John Steenhuisen, was, at the time, tasked with producing a committee report into allegations about the DA caucus, which De Lille led.
De Lille formed the Good party early in 2019, just in time to contest that year’s general election. Her party gained two seats in Parliament and she was appointed as public works and infrastructure minister.
In 2023, De Lille said her party would not join the DA-led Multi-Party Charter, or “Moonshot Pact”, saying, “The forces of the right are consolidating, including the makers and beneficiaries of apartheid, under the auspices of a Moonshot Charter. We cannot let the enemies of progress retake the reins of power.”
Three of the now-defunct charter’s members - the DA, Freedom Front Plus and Inkatha Freedom Party - are part of this GNU.
Back at tourism ministry
De Lille’s reappointment as tourism minister was welcomed by the CEO of the Southern Africa Tourism Services Association, David Frost.
“Minister De Lille’s reappointment is excellent news for the tourism sector,” said Frost.
“Her leadership has been instrumental in navigating our industry through challenging times and we’re excited about the prospects of building on this solid foundation.”
De Lille said she had “worked very hard to make sure that the public sector and the private sector work together”.
She said her next steps would be working with Home Affairs Minister Leon Schreiber to tackle the visa backlog issue, particularly in markets such as Nigeria, China and India.

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Thousands of people coming into South Africa from war-torn countries or countries rife with political unrest say they live in constant fear of being arrested.This is despite their numerous attempts, some since 2020, to apply for asylum at the Department of Home Affairs. Leaders of immigrant communities in Diepsloot, Gauteng, say they are aware of at least 15 people currently being held at the Lindela Repatriation Centre due to their inability to apply for asylum documents. An Ethiopian man who has been living and working in Diepsloot, Gauteng, for nearly four years says he fears being arrested each time he walks out of his home because he has been struggling for years to get legal asylum documents, GroundUp reports.

Ahmed*, 24, says he arrived in South Africa during the lockdown in 2020 after running away from political unrest in his hometown of Tigray in Ethiopia, in which thousands of people, particularly young men, were killed.

Refugee reception offices were still closed when he arrived, so Ahmed could not immediately apply for asylum. In 2021, he submitted an application online but did not get a response.

He said he has been arrested by police on more than one occasion for not having the proper paperwork but is always released when he shows them proof that he is awaiting feedback on the application he submitted.

In 2023, Ahmed was arrested again and detained at the Desmond Tutu Refugee Centre in Pretoria. 

He travelled there to get answers about his pending application but was arrested instead. He was later released after being booked for another interview. He has returned to the centre several times since then and is yet to get an asylum permit. 

He said: `I don`t know what to do. I`m afraid of being deported because back home in Ethiopia it is not safe.`

Another Ethiopian national from Diepsloot, Salmar*, arrived in South Africa in May 2024. 

Police detained him a few days after his arrival. He was released on bail after explaining his intention to apply for asylum.

He has also been to the refugee centre several times and was turned away each time without getting any help.

Ahmed and Salmar are among more than 10 000 asylum seekers and refugees who have sought help from Lawyers for Human Rights since 2020.

According to Daniel Sherrif, leader of the Ethiopian Community in Diepsloot, five new asylum seekers have been detained by police, while five others are being held at the Lindela Repatriation Centre due to their inability to apply for asylum documents.

This is in addition to five other Congolese nationals also being held at Lindela because they have not been able to get help to apply for documents.

Home Affairs Minister Leon Schreiber undertook an

Home Affairs Minister Leon Schreiber undertook an oversight visit to the Cape Town Department of Home Affairs and Refugee Reception Office in Epping where he received an update on the functionality of the home affairs services for citizens and for refugees and asylum seekers and also conducted a site inspection of the centre. (ER Lombard/Gallo Images)

Gallo Images

In May, the Scalabrini Centre in Cape Town, represented by Lawyers for Human Rights, approached the courts for an interdict to prevent authorities from arresting and detaining new asylum seekers, the lawyers said in a statement. 

This matter will be argued in the High Court in Cape Town on 27 August.

Court battle looms

Meanwhile, Lawyers for Human Rights has raised concerns with the frequency of cases in which asylum applicants being arrested while at or on their way to refugee reception centres. 

`New applicants for asylum have been subject to arrest, detention, and deportation without the opportunity to undergo a refugee status determination interview. This process effectively denies individuals access to the asylum system, leaving them vulnerable to deportation to their home countries, where they face persecution, violence, war, detention or even death.`

Sharon Ekambaram, who manages Lawyers for Human Rights, says the organisation`s offices in Johannesburg, Pretoria, Durban and Musina have been inundated with more than 10 000 cases of asylum seekers and refugees facing documentation challenges since 2020.

Ekambaram said most of the asylum seekers they have been assisting are yet to have their applications finalised. This adds to the Department of Home Affairs` existing refugee backlog, said Ekambaram.

`Home Affairs is doing nothing to make the process of applying for asylum and refugee documents accessible, and this must change,` she told GroundUp.

Claudia Marie Bernard Kayitane, director of the immigrant advocacy organisation Pax Afrika Network, said: `Laws that observe the right to protection for refugees continue to fail us. A lack of documentation exposes them to increased insecurity.`

Requests for comment sent to the Department of Home Affairs since 21 June have received no response.

Newly appointed Home Affairs Minister Dr Leon Schreiber has announced that South Africa’s Smart ID cards and passports will be updated with enhanced security features in the coming years.

Schreiber announced the development in the Department of Home Affairs’ 2024/2025 budget vote speech on Monday.

“Both the passport and smart ID card will be refreshed and updated in order to enhance the security features of these documents, with the aim of building trust by more countries and organisations worldwide,” said Schreiber.

While Schreiber did not provide a specific date for the changes, he said the documents would be updated “during the current administration”.

Barring an unprecedented early election, the current administration is set to serve until the next general elections in 2029.

Although it is unclear what security shortcomings the Smart ID card might have, the South African passport’s vulnerability to fraud has been widely reported.

Former Home Affairs Minister Aaron Motsaledi recently lamented the impact of passport fraud on South African travellers.

“Every single South African is a victim because we are now forced to apply for visas when we visit countries such as the United Kingdom (UK),” Motsoaledi said. “This was not the case before syndicates like these denigrated our passports.”

“We will, therefore, have no mercy to anybody whatsoever, Home Affairs official or outsider, who gets involved in these dastardly acts. We are doing so to protect the interests of all South Africans”.

Motsoaledi’s comments came after the sentencing of a Pakistani national for corruption and bribing of twelve Home Affairs officials in Krugersdorp to assist in producing fraudulent passports.

The syndicates typically create fraudulent documents using the identification information of recruited South Africans who are unlikely to travel abroad and willing to sell their identities.

When the applicant’s photo needs to be taken, the corrupt officials help to swap them out with the foreign national.

With the photo featuring the face of the actual criminal using the document, border officials are unlikely to flag them as forgeries.

One controversial attempt to mitigate this practice was a decision by low-cost airline Ryanair in 2022 to screen South Africans with an Afrikaans-only general knowledge questionnaire on the country before they could board its planes.

The issue not only left non-Afrikaans speakers feeling ostracised, but several Afrikaans speakers also found the questionnaire’s questions too difficult.

Before scrapping the measure following severe backlash, Ryanair described it as an “additional safety assessment” to confirm whether they were correctly documented before travel.

“As language proficiency is the least intrusive further safety assessment method, this questionnaire is conducted through Afrikaans, one of South Africa’s most prevalent official languages,” the airline said.

Good news for naturalised citizens

Schreiber also shared good news for naturalised citizens who have not yet been able to apply for Smart ID cards for more than a decade.

The minister said that support for Smart ID cards was gradually being phased in, with 280 cards already issued and another 697 in progress.

“Once the system has been adjusted to verify compliant applications, all naturalised citizens will be able to visit any Home Affairs office equipped with live-capture facilities to apply for their smart ID cards,” said Schreiber.

Schreiber is a member of the Democratic Alliance, which has long pushed Home Affairs to enable Smart ID card support for naturalised citizens.

Smart ID cards have primarily been restricted to locally-born citizens since they were launched in 2013.

As a result, naturalised citizens who have lost, stolen, or damaged green ID books must visit one of only a handful of offices that still support the issuing of the older document.

The DA argued that this infringed their rights as citizens.

The issue could have become more serious if the department proceeded with its plan to declare green ID books invalid.

Home Affairs only announced it started a pilot of Smart ID card issuing to naturalised citizens in December 2023, in a parliamentary response provided to DA MP AC Roos in March 2024.