South Africa (SA) attracts many immigrants and asylum seekers due to its economic prospects and stability. However, balancing national security and human rights obligations remains a significant challenge.
The Immigration Act 13 of 2002 and the Refugees Act 130 of 1998 govern how the country manages immigration and asylum, addressing definitions, rights, responsibilities, and penalties. Recent rulings by South African courts have added clarity to how these laws should be applied, especially regarding detention, deportation, and asylum processes.
Under South African law, a foreigner is any person who is not a South African citizen, including those who may be illegally present. Illegal foreigners are individuals in the country without authorisation under the Immigration Act, such as those who overstayed their visa or entered without permission. In contrast, a refugee is someone granted asylum or awaiting confirmation as a refugee under the Refugees Act due to a well-founded fear of persecution or threats to their life in their home country.
The Immigration Act provides a framework for handling legal and illegal migration:
Section 32 mandates that any illegal foreigner must depart the country unless authorised by the Director-General to remain. Under s 34, immigration officers may detain and deport illegal foreigners without a warrant. Detention can last up to 30 days and may be extended for a maximum of 90 days if warranted. However, recent case law mandates that all detentions are subject to judicial oversight.
Section 41 authorises officers to request identification to verify residency status. Offenses under s 49 include unauthorised entry, overstaying, and failing to comply with deportation orders, with penalties ranging from fines to prison terms of up to four years.
The Refugees Act is designed to protect those fleeing persecution.
Section 3 of the Act outlines eligibility for refugee status, protecting individuals at risk of persecution due to race, religion, or political views. Applications must be submitted in person to a Refugee Reception Office, and applicants receive a temporary asylum seeker permit while their case is reviewed (s 22).
Section 27 guarantees refugees basic rights, including access to health care, education, and the ability to work. Additionally, the Act includes provisions for the principle of non-refoulement, which prohibits returning refugees to countries where they face harm.
The relationship between the Immigration and Refugees Acts has led to complex legal questions, with recent court cases providing essential guidance.
Ruta v Minister of Home Affairs 2019 (2) SA 329 (CC): This case established that the Refugees Act supersedes the Immigration Act when an individual expresses an intent to seek asylum. The court ruled that detention or deportation under the Immigration Act cannot proceed until the asylum process under the Refugees Act is completed.
Ashebo v Minister of Home Affairs and Others 2023 (5) SA 382 (CC): The Constitutional Court emphasised that expressing an intent to apply for asylum does not automatically entitle an illegal foreigner to be released from detention. Under new regulations, asylum applicants must justify their entry or delayed application (known as ‘good cause’) before they can be released and proceed with the asylum process.
The recent amendments to the Refugees Act and Immigration Act have reinforced the need for ‘good cause’ when an asylum seeker has entered illegally or delayed their application. In Lembore and Others v Minister of Home Affairs and Others [2024] 2 All SA 113 (GJ), the court clarified that detention under the Immigration Act remains lawful until an applicant demonstrates valid reasons for their illegal entry or delayed asylum claim. If an applicant fails to show good cause, they may still be detained and potentially deported, though the decision can be appealed.
Implementing these Acts has posed practical issues, including inconsistent access to interpreters, delays in processing asylum claims, and inadequate detention facilities. Additionally, recent rulings have highlighted the responsibilities of officials to ensure that detention conditions meet human rights standards and that all detainees are afforded the chance to present their claims for asylum if they indicate such an intention.
South Africa’s immigration and refugee policies reflect an ongoing effort to balance its sovereignty with international human rights obligations. While the Immigration Act addresses border security and deportation, the Refugees Act provides vital protections for those seeking safety.
Recent legal decisions continue to shape the application of these laws, underscoring the importance of judicial oversight, fair treatment, and clarity in handling immigration and asylum cases. As these laws evolve, SA faces the challenge of aligning its national interests with its commitment to protecting vulnerable populations.
The Africa Chapter of the International Association of Refugee and Migration Judges (IARMJ) headed by President of the African Chapter Judge Dunstan Mlambo (Judge President of the Gauteng Division of the High Court) held their regional conference in Sharm El Sheikh, Egypt from the 17 – 21 November 2024.
The title of the conference was: ‘Upholding International Protection Regimes within Mixed Movements’.
President of the Africa Chapter of the IARMJ, Mr Justice Mlambo, thanked the Egyptian Government for hosting the conference and also congratulated Egypt on adopting an asylum law. He reiterated the relevance of the conference saying, ‘The conference is timely, especially given the issue of responsibility sharing, a critical topic for states hosting large numbers of refugees, such as Egypt, which hosts one of the largest refugee populations on the continent.’
The timing of the IARMJ conference in Sharm El Sheikh is particularly significant as it coincides with the ongoing conflict in Sudan, which has led to the displacement of more than 11 million people affecting Sudan and its neighboring countries. The ongoing conflict underscores the urgent need for robust regional dialogue and cooperation in addressing refugee protection challenges. The conflict has resulted in a surge of individuals seeking asylum in neighboring countries, highlighting the importance of the conference’s focus on enhancing the application of international and regional legal frameworks.
The conference was intended to bring together judges and magistrates from Africa and mainly from North Africa, as well as judges from the Americas, European and Asia-Pacific Chapters of the IARMJ, academics and advocates from diverse disciplinary and regional backgrounds, to share and consider emerging refugee and migration law trends, jurisprudence, and discuss the dynamics and challenges confronting magistrates and judges in general and refugees and migrants in the context of the prevailing global refugee crisis, as well as the application of national legislation, international policies, good practices and international and regional conventions.
Mohammed Moolla BProc (UKZN) LLM (UWC) is an Acting Regional Court Magistrate in Cape Town.
This article was first published in De Rebus in 2025 (Jan/Feb) DR 31.
