The five refugee reception offices in Gqeberha, eThekwini, Epping, Tshwane and Musina have been overwhelmed by queues of foreign nationals seeking access to the asylum determination process, and the government has acknowledged that its own implementation directive, issued after a Constitutional Court judgment, is a central cause of the disruption.
The Inter-Ministerial Committee on Migration, the monthly coordinating body for government migration policy, said on Wednesday that the offices had been swamped following a directive issued by the Department of Home Affairs in response to the court’s ruling. Minister in the Presidency Khumbudzo Ntshavheni conceded that implementation of the directive had contributed to confusion and overcrowding on the ground. The IMC is now reviewing the Home Affairs directives to prevent further disruption.
The judgment at the centre of the operational strain was handed down on 7 July. It declared certain provisions of the Refugees Act 130 of 1998 unconstitutional and invalid, confirming that asylum seekers who had entered the country unlawfully could not be required to justify their failure to comply with certain procedural requirements before being allowed to apply for asylum. The court grounded its reasoning in the international principle of non-refoulement, which prohibits returning a person to a country where they face persecution or serious harm.
IMC chairperson and Minister of Justice and Constitutional Development Mmamoloko Kubayi said the committee respects the ruling but is worried about what it calls “unintended consequences”. The IMC has written to the Gauteng Judge President to seek a resolution, and a panel to review the judgment will sit on 29 October.
Kubayi moved to clarify what the judgment actually changes in practice. “The judgment does not grant refugee status or permanent residency automatically to anyone who enters South Africa. It simply requires that individuals claiming asylum be allowed access to the asylum determination process so that their claims can be properly assessed in terms of the law,” she said. Applications can still be rejected if they are fraudulent, abusive, unfounded or fail to meet the requirements of the Refugees Act. In her view, the ruling remedies only a procedural defect in how applications were initially processed, ensuring that people are not summarily deported or barred on administrative technicalities such as lacking a transit visa or missing a tight reporting deadline without an interview. Claimants must still pass through the formal refugee status determination process, and those found to be abusing it or failing to meet the legal definition of a refugee will face lawful deportation once due process is completed.
On service delivery for citizens, Kubayi rejected claims that the influx would shut South Africans out of Home Affairs services. Asylum processing happens only at the five reception centres, she said, while all other Home Affairs offices continue attending to other needs, and no South African citizen will be barred. She warned that misinformation could discourage people from using essential services, including matric pupils who need identity documents ahead of their examinations. She also dismissed circulating claims that refugees gain voting rights: “Those granted refugee status do not have the right to vote in terms of our laws in the country.”
Home Affairs director general Tommy Makhode confirmed that only the five reception offices are overwhelmed while other offices continue serving South Africans. He noted that the Special Investigating Unit has been investigating the issuing of permits, including permanent and temporary residence permits and naturalisation, since the inception of the 2002 Immigration Act. Legislative work on the Zimbabwe Exemption Permit has completed its public consultation process, and the IMC is reviewing what Makhode described as the “unending blue sky” of appeals that allow rejected asylum seekers to remain in the country while appeals are processed.
Meanwhile, Ntshavheni framed the pressure as a constitutional question rather than a government choice, pointing out that the first piece of misinformation is that the influx reflects a government decision rather than the court’s ruling of 7 July. She affirmed constitutional supremacy but argued it must be balanced against national sovereignty and territorial integrity, suggesting the national dialogues should consider amending the Constitution if it does not work in the country’s interest. The government is also weighing mechanisms to resolve contradictory court judgments, including a panel similar to the powers given to the Gauteng judge president for conflicting High Court rulings. She said no “economic refugee” is provided for in the Constitution, South African law or United Nations conventions, and questioned whether nationals from neighbouring countries with no war or widespread persecution should qualify for asylum.
Enforcement and labour dimensions featured alongside the operational response. Home Affairs, the Border Management Authority and the police are working together to enforce migration laws, and the IMC intends to release crime statistics relating to undocumented foreign nationals to counter misinformation. Minister of Employment and Labour Nomakhosazana Meth rejected selective criticism of foreign nationals from particular countries or racial groups, saying employers found using undocumented workers will be dealt with regardless of nationality, and accused some employers of paying below the minimum wage or withholding compensation. The Employment Services Amendment Bill, which seeks to regulate the employment of foreign nationals and the recruitment of workers with scarce skills, is open for public comment until 6 November, and is intended to prioritise South African workers where the necessary skills are available locally.
With the review panel set to sit on 29 October and the IMC still working through the Home Affairs directives, the immediate question is whether the five reception offices can clear their queues before the next wave of applications arrives.