Constitutional Court Declares Refugees Act Provisions Unconstitutional

On July 7, 2026, the Constitutional Court of South Africa delivered a landmark judgment in the case of Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others. The Court confirmed the unconstitutionality of specific provisions within the Refugees Act 130 of 1998, particularly sections 4(1)(f), 4(1)(h), 4(1)(i), and 21(iB). These sections had previously allowed for the exclusion of asylum seekers from the asylum process due to procedural non-compliance, such as irregular entry into the country or failure to report to a Refugee Reception Office within a prescribed period.

The Court's decision underscores the principle that asylum seekers cannot be denied the opportunity to have their claims assessed on their merits solely because of procedural missteps. This ruling aligns with South Africa's commitment to the international principle of non-refoulement, which prohibits the return of individuals to countries where they may face persecution. Additionally, the judgment highlights the importance of upholding children's rights within the asylum process.

This ruling is expected to have significant implications for the Department of Home Affairs, necessitating revisions to current practices and policies to ensure compliance with constitutional standards. It also reinforces South Africa's dedication to protecting the rights of vulnerable individuals seeking refuge within its borders.