Parts of the Refugees Act and its regulations that allowed for Home Affairs to "filter" asylum seekers who do not have valid transit visas, have been declared unconstitutional.
• The Western Cape High Court agreed with the Scalabrini Centre that this put asylum seekers at risk of being sent back to their home countries, where they could face persecution.
• The matter will now go to the Constitutional Court for confirmation.

The Western Cape High Court has struck down sections of the Refugees Act which allowed for the deportation of asylum seekers even before they could access the asylum system.
But the court declined to issue a temporary interdict preventing the deportation of affected people, saying that until the Constitutional Court considers the matter, asylum seekers will have to individually approach courts if they believe they have been unlawfully shut out of the system.

The matter was taken to court by the Scalabrini Centre in Cape Town. It argued that amendments to the act and regulations, which took effect from January 2020, put refugees at risk of persecution because they could be returned to their countries of origin without having their asylum applications even considered.
The amendments allowed for asylum seekers who have entered the country unlawfully and do not have a valid asylum transit visa, to be denied full access to the asylum system after an initial "filtering" interview with an immigration officer. Scalabrini wanted the court to declare this unconstitutional.

These officers had the "sole discretion" to determine this unless they were presented with "compelling reasons" to decide otherwise, Scalaibrini argued.
This was the second part of Scalabrini's court case. In the first part, in August 2024, Scalabrini secured an interim interdict stopping the deportation of asylum seekers. The second part, its main application to have the sections of the act declared unconstitutional, was heard in February in the Western Cape High
Court before Judges Judith Cloete, Lister Nuku and Acting Judge Shami Kholong.

During that hearing it emerged that since the granting of the interdict, the Department of Home Affairs had effectively shut off access to the asylum system for new applicants. But arrests of people who wanted to seek asylum but who did not have valid visas continued, filling up prisons with asylum seekers.
Writing for the court, Judge Judith Cloete said while in the initial interdict application, the applicant had relied on specific instances of how certain refugees had been treated, it was now relying on "an abstract constitutional challenge".
"As we understand it, the crux of the applicant's complaint is that if a foreign national is not in possession of a valid five-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 this, then he or she will not get to the next stage at all.

"In other words, so the applicants say, given the overarching 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," Judge Cloete said.
Non-refoulement is a principle in international law that prohibits governments from sending or "refouling" people back to countries where they face persecution or danger.

The government respondents, including the Minister and Director-General of Home Affairs, argued against Scalabrini's interpretation. They claimed that rather than depriving foreigners unlawfully in the country of their rights, the provisions created a "safety valve" so that such people are not shut out as long as they can show valid and compelling reasons.

But Scalabrini argued that it was the process that was the problem and that requiring people to undergo the so-called "safety valve" exercise before they are able to formally access the asylum system, after which they could be arrested and deported, violated the principle of non-refoulement.
It was not a safety valve, but a "threshold", Scalabrini argued.

Judge Cloete said that according to the plain wording of the law, immigration officers are required to "ascertain whether valid reasons exist" as to why an applicant is not in possession of the transit visa.

Cloete said it is undeniable "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 the Act. It also falls foul of international law. "
She said the regulation's guidance on "compelling reasons" for not having a valid visa included hospitalisation, institutionalisation or any other compelling reasons but did not include that the person concerned may be persecuted if sent back to their home country.

This was contrary to the multiple international treaties that South Africa had ratified since democracy.
The Helen Suzman Foundation (HSF), which had been admitted along with other human rights organisations as friends of the court, had correctly argued that the effect of the provisions was aggravated by the harm on children who would be deported with their parents, Cloete said.

"The first underlying principle is that children are individual right bearers and not mere appendages of their parents. The second 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," Judge Cloete said.

Turning to the relief, Judge Cloete said in terms of the Constitution, a court which makes an order of constitutional invalidity may grant a temporary interdict or other temporary relief, pending confirmation or otherwise by the Constitutional Court.
Scalabrini had asked for a temporary interdict.
But, Judge Cloete said, this would be 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."
She noted that since the initial interdict was granted the "unintended consequence" was that the asylum system had been shut down.
"We have also taken into account that the constitutional challenge is an abstract one. There is nothing preventing any affected individual from approaching the court in his or her own right given our findings and the pending confirmation, or otherwise, of the Constitutional Court."

She said the respondents had highlighted a number of possible practical difficulties if another temporary interdict were granted.
"We deliberately adopted a cautious approach 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 pending the outcome of the Constitutional Court proceedings".
The court struck down the relevant provisions as being unconstitutional, discharged the interim interdict granted in August 2024 and ordered the government respondents to pay 80% of Scalabrini's costs.

The short answer
You should qualify for a spousal visa, but you will probably need legal help

The whole question
I have lived in South Africa since 2006, albeit illegally. Since 2012, me and my South African girlfriend have cohabited and we have a five-year-old son. I did a DNA test for Home Affairs to give him my surname. Is there anything i can do to fix my status?

The long answer
Thank you for your letter asking what you can do to fix your status in South Africa.

If you applied for a spousal visa, you would need to show Home Affairs the following:
Proof of your partner’s South African citizenship.
For a permanent spousal visa you need to prove that you have been married or living together for at least five years and are dependent on each other financially, emotionally and physically. For a temporary spousal visa there isn’t a minimum period you need to have been married or co-habiting.

A letter of support from your South African partner.
Proof of your good mental and physical health ie a medical report.

A completed temporary residence application form.
Since you have lived with your South African partner since 2012 and have a five year-old son together, one would think that you should qualify for a spousal visa, and permanent residence but the problem you will likely encounter with Home Affairs is that you have been here illegally.
For this reason I think you need to get some legal advice on how best to proceed. You could contact us

How can we help you , please email us to info@samigration.com or whatsapp message me on: +27 82 373 8415, where are you now? check our website : www.samigration.com

The Hawks are investigating allegations that officials at the Gauteng Division of the High Court in Pretoria are issuing fraudulent notices to help illegal foreigners evade deportation. Three officials have been arrested following a Hawks raid on Tuesday, 13 May 2025.
The three court officials have been accused of issuing fraudulent notices of motion to help foreigners evade deportation proceedings.
Three officials at the Gauteng Division of the High Court in Pretoria have been placed on precautionary suspension days after the Hawks raided the court during an investigation into the issuance of fraudulent notices of motion.

On Friday, 16 May, the Office of the Chief Justice (OCJ) said the three officials, whose identities have not yet been released, are suspects in an “ongoing investigation by the South African Police Service’s Directorate for Priority Crime Investigation [the Hawks] looking into fraudulent and corrupt activities in the court”.
“The OCJ takes a zero-tolerance approach to fraud and corruption and the officials were therefore placed on precautionary suspension to allow investigations to proceed without being compromised.”

On Tuesday, the Hawks conducted a search and seizure operation at the court, where officials are alleged to have been issuing fraudulent notices of motion to help foreigners avoid deportation. A notice of motion verifies that a party is going to court over a specific matter.
The Hawks’ investigation had focused on one employee.
“It is alleged the employee has been issuing fraudulent notices to undocumented foreign nationals to prevent their deportation. This matter was formally reported to the Directorate for Priority Crime Investigation in March,” the Hawks said.
Speaking to Newzroom Afrika on Thursday, Hawks head Lieutenant General Godfrey Lebeya said the unit had received information about the scheme involving the deportations of illegal foreign nationals.

“Based on that, and with the affidavit that we had, we had to go and conduct a search so that we could gather evidence so that we can deal with this individual. He is a Level 5 individual in terms of ranking,” Lebeya said.
Lebeya said Level 5 referred to a junior rank. He said the Hawks believed that the individual was working alone at the court, but said they would cast their net wide.

“Because there were others who went to fetch some of these documents, some of whom work in certain [law] firms,” Lebeya said.
“We believe that he is part of a syndicate; he can’t be operating alone. You cannot and go and serve them in some other environment where they need to be produced. There were others who were fetching these documents,” he said.
“We don’t know whether they are working with the firms […] or individuals associated with this specific person. But evidence will assist us in that regard,” he said

“We appreciate the information that came forward so that we can be able to stop this cancer,” Lebeya said.

Mthatha allegations
The suspension of the three Pretoria officials follows a number of recent allegations against court officials.
Chief Justice Mandisa Maya visited the Mthatha High Court this week following claims of systemic corruption, with court officials allegedly soliciting bribes to do tasks that should be normal parts of their jobs.

Following her visit to the Mthatha court, Justice Maya said she “was assured a case had been opened with SAPS, and that the Directorate for Priority Crime Investigation had launched an enquiry into the matter. This process is running concurrently with internal investigations by the department.”
Maya requested that the implementation of the court online system be expedited, which is aimed at “protecting the integrity of court operations, enhancing access to justice, minimising manual processes and curbing the allegations of improprieties”.

Deputy minister urges parents to register their children within 10 days after they are born to reduce the need for late registrations.

Deputy Minister of Home Affairs Njabulo Nzuza on Friday handed over 100 birth certificates and identity documents to successful late birth registration applicants in Mabopane, north of Tshwane.

Speaking to The Citizen, Nzuza clarified the department’s stance on documentation for foreign nationals.

“Birth certificates are only issued to South Africans. For foreign nationals, we issue them with a notice of birth,” he said.

Documenting South Africans, not foreigners

Nzuza said that no birth certificates were given to foreign-born individuals, amid rising concern about documentation fraud and misperceptions about illegal immigration.

“We have to safeguard the integrity of the population register against fraudulent registration,” Nzuza said.

“There are attempts where people try to register foreign nationals as South Africans. That’s why we conduct a lengthy process, including interviews and verification.”

He said the department’s responsibility is to ensure that only eligible citizens are officially recorded.

“In South Africa, to be a citizen by birth, you must be born to South African parents, or at least one parent must be South African. If we can’t trace a parent, we cannot assume citizenship,” he said.

Challenges with undocumented children

Nzuza said social development often intervenes in cases where children are abandoned or orphaned, complicating the registration process.

“These children are sometimes left with people who are not their biological parents. If we can’t verify that they are South African, it becomes an issue. But every South African child deserves to be documented, regardless of the circumstances of their birth,” he said.

The deputy minister urged parents to register their children within 10 days after they are born to reduce the need for late registrations.

“We are developing systems where a parent can register a child using fingerprints and instant online verification,” said Nzuza.

“In hospitals with more than 5 000 births annually, we’ve stationed home affairs units so that no child leaves without being registered.”

Restoring dignity

According to the department, the event formed part of an ongoing drive by the department to register South Africans who were never added to the national population register.

Many recipients had lived without documentation their entire lives. One beneficiary was born in 1973 and received an identity document for the first time.

“We are officially entering them into the population register. They can now access services such as social grants, healthcare and employment,” said Nzuza.

The event was also supported by the Gauteng department of social development, with MEC Faith Mazibuko present to oversee the provision of related services.

The South African social security agency and department of employment and labour were also part of the outreach.

The organisation argued that deporting individuals without properly considering their asylum applications violated constitutional principles.

The Western Cape High Court has ruled that several provisions of the Refugees Act are unconstitutional and invalid, marking a significant victory for asylum seekers in South Africa.

This decision concludes a legal battle that lasted more than two years and offers relief to foreign nationals seeking refuge in the country.

Western Cape High Court ruling favours asylum seekers

In 2023, the non-profit organisation, Scalabrini Centre, successfully received an interdict stopping the Department of Home Affairs from deporting foreign nationals who had indicated their intention to apply for asylum under the Refugees Act 130 of 1998.

The organisation argued that deporting individuals without properly considering their asylum applications violated constitutional principles.

The High Court’s recent 42-page judgment specifically addressed multiple contested sections of the Refugees Act.

These provisions had prevented asylum seekers from qualifying for refugee status if they had entered South Africa unlawfully, had fraudulent South African identification documents, or failed to report to a refugee reception office within five days of entering the country without compelling reasons.

The court found that “simply refusing to entertain an application due to the fact that persons had entered the country unlawfully was contrary to the principle of non-refoulement”.

This principle prohibits countries from deporting people who might face persecution or irreparable harm in their countries of origin.

Constitutional court confirmation pending

The declaration of constitutional invalidity has been referred to the Constitutional Court for possible confirmation, as the statute’s invalidity cannot take effect without approval from South Africa’s apex court.

The High Court declared several specific sections of the Refugees Act unconstitutional, including sections 4(1)(f), 4(1)(h), 4(1)(i), and 21(1B).

Additionally, regulations 8(1)(c)(i), 8(2), 8(3), and 8(4) of the Refugee Regulations were also deemed inconsistent with South Africa’s constitution.

Impact on detention practices

Several international organisations with expertise in refugee and migrant rights participated in the case.

They expressed two primary interests: the application of the principle of non-refoulement and the impact the disputed provisions would have on migrant detention.

The court noted that these organisations had demonstrated that implementation of the questioned provisions had “radically increased the detention of migrants in South Africa.”

The organisations argued that detention patterns would likely be reduced if the provisions were declared unconstitutional.

Background on refugee protections

In reaching its decision, the High Court referred to established principles from previous constitutional court cases, including Ashebo, Ruta, and Abore.

These cases established that “until an applicant’s refugee status has been finally determined, the principle of non-refoulement protects the applicant from deportation.”

The Constitutional Court had previously found that “once an illegal foreigner has expressed their intention to apply for asylum, they must be afforded an opportunity to do so”.

Furthermore, “a delay in expressing that intention is no bar to applying for refugee status.”

Legal framework

Section 2 of the Refugees Act orders the principle of non-refoulement, stating that “no person may be refused entry into the Republic, expelled, extradited or returned to any other country” if such actions would compel them to return to or remain in a country where they might face persecution or threats to their life, physical safety, or freedom.

The court ordered the respondents to pay 80% of the applicants’ costs, including those incurred during the initial part of the application.