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Title
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Jurisdiction |
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Date
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Reported
Section 12(1) of the Constitution — principle of non-refoulement — section 49(1) and 34 of the Immigration Act 13 of 2002 — illegal foreigner’s intention to apply for asylum — lawfulness of detention. |
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Judgment |
12 June 2023 |
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Pending judicial review, asylum seeker visas must be extended if applicants serve their review on the State Attorney.
Refugees Act – asylum seeker visas – extension pending judicial review; non‑refoulement; automatic extension duty of Refugee Reception Officer (Saidi); service on State Attorney to obtain extensions; PAIA relief inappropriate while review pending (Rule 53).
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Gauteng
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Judgment |
11 May 2023 |
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State failed to show good cause or a bona fide defence for rescission of default judgment confirming minors' citizenship.
Rescission of default judgment — good cause requirement — reasonable explanation for default, bona fides, and bona fide defence with prospects of success; procedural fairness in refugee/citizenship decisions; prejudice assessment.
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Gauteng
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Judgment |
11 April 2023 |
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Reported
An illegal foreigner’s expression of intent to seek asylum triggers the Refugees Act and ends lawful section 34 detention.
Immigration law; Refugees Act and non‑refoulement; trigger for application — expression of intention; lawfulness of section 34 detention extinguished on intention to apply; Regulation 8(3) read as part of asylum inquiry; Regulation 8(4) ultra vires and pro non scripto; interplay of Ruta and Abore.
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Gauteng
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Judgment |
14 March 2023 |
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Reported
DG’s refusal to uplift prohibition was irrational for failing to consider victim‑of‑fraud evidence and the children’s best interests.
Immigration — s29(1) strict liability versus s29(2) discretion to uplift prohibition; administrative law — irrationality and failure to consider relevant factors; children’s rights — paramountcy of best interests in immigration decisions; substitution of administrative decision where remittal inappropriate.
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Western Cape
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Judgment |
10 March 2023 |
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Reported
A dependent’s entitlement to asylum is derivative and requires the principal applicant to have secured refugee status under Chapter 3.
Refugees Act — Interpretation of section 3(c) — Dependent status is derivative and contingent on principal asylum application under Chapter 3; dependents must be disclosed under sections 21 and 21B. Refugee status — applicant must establish grounds in section 3(a) or (b); mere destitution or familial dependence is not standalone ground. Procedural — absence of evidence that purported refugee was granted status defeats derivative claim.
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KwaZulu-Natal
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Judgment |
15 February 2023 |
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Reported
Court invalidates abandonment regime that strips asylum seekers (and children) of non‑refoulement protection for late visa renewal.
Refugee law — Abandonment of asylum applications — Sections 22(12)–(13) of Refugees Act, Regulation 9 and Form 3 — Conflict with non‑refoulement and children's rights — Overbroad and disproportionate limitation under section 36 — Invalidity and referral to Constitutional Court.
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Western Cape
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Judgment |
13 February 2023 |
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Review of SCRA withdrawal of refugee status dismissed due to misleading submissions and failure to justify procedural delay.
Refugee law – withdrawal of refugee status under s36 read with s5(1)(e) – review confined to administrative record – PAJA condonation – misrepresentation/irrelevant country evidence – procedural fairness.
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Gauteng
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Judgment |
14 February 2022 |
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Reported
An aspirant asylum seeker who expresses intent must be afforded an opportunity to apply; non‑refoulement prevails despite amendments.
Refugee law — applicability of Refugees Amendment Act (2017) and new Regulations — interaction with section 2 non‑refoulement; whether an illegal foreigner who expresses an intention to apply for asylum must be afforded the opportunity to apply; effect of delay in evincing intention; requirement for immigration officer interview and showing good cause for lack of asylum transit visa; lawfulness of detention.
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Judgment |
30 December 2021 |
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Reported
Decision‑makers must assist asylum seekers, consider s 3(a) and s 3(b), and observe audi and a flexible proof standard.
Refugee law — Refugee status determinations — Duty on RRO/RSDO/Appeals Authority to assist applicants and to gather and test relevant evidence; consider both s 3(a) and s 3(b) of the Refugees Act; credibility is one factor within a flexible, inquisitorial assessment; procedural fairness (audi) requires disclosure of adverse country‑of‑origin information and opportunity to respond.
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Judgment |
23 September 2021 |
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Asylum seekers detained pending deportation must be released unless the State proves lawful detention under the Refugees Act.
Refugees Act s21(4) and non-refoulement; Immigration Act s34(1) and judicial oversight post Lawyers for Human Rights; burden on State to plead and prove lawfulness of detention; limits on courts to judicially supervise statutory/bureaucratic asylum processes (not decide merits); application and limits of regulation 8(3)-(4) and port-of-entry provisions; administrative process for withdrawal of asylum status and detention under Refugees Act; detention at Lindela pending deportation.
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Gauteng
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Judgment |
18 February 2021 |
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Reported
Admission of children to public schools may not be conditioned on possession of identity documents; clauses requiring such documentation are unconstitutional.
Education law; right to basic education – unconditional right of "everyone" under section 29(1)(a); Admission Policy clauses requiring birth certificates or proof of legalisation unconstitutional; administrative action and PAJA condonation; Circular 06 of 2016 set aside; Immigration Act (ss.39, 42) to be interpreted compatibly with Bill of Rights so as not to bar basic education to undocumented children; best interests of the child and equality and dignity obligations; remedies and mandamus to admit children pending documentation.
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Eastern Cape
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Judgment |
12 December 2019 |
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Applicants whose new asylum applications were refused are entitled to section 22 permits pending determination of their claims.
Refugee law – section 22 asylum seeker permits – entitlement where State refuses to accept/consider new (sur place) asylum applications; administrative law – failure to take a decision reviewable under PAJA; relationship between Refugees Act and Immigration Act – Refugees Act not displaced; interim relief/urgency.
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Western Cape
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Judgment |
2 September 2019 |
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Reported
Delay does not bar asylum applications; Refugees Act (non‑refoulement) prevails and RSDO alone decides refugee status.
Refugee law — non‑refoulement and section 2 of the Refugees Act — primacy over conflicting statutes; access to asylum process — delay and false documents relevant to credibility but not absolute bars; Refugee Status Determination Officer sole authority to determine refugee status; exclusionary clause s4(1)(b) applies to crimes committed outside the refuge country; Immigration Act must be read harmoniously with the Refugees Act.
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Judgment |
20 December 2018 |
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Reported
A departmental directive banning asylum seekers' visa and in‑country permanent‑residence applications is ultra vires and invalid.
Immigration law — Immigration Directive 21 of 2015 — ultra vires to the extent it imposes a blanket ban on asylum seekers applying for visas; Refugee law — interplay between Refugees Act and Immigration Act — asylum seekers' eligibility to apply for permits and ability to seek exemptions under s31(2)(c); Administrative law — directives and reviewability; Regulation 23 — in‑country applications for permanent residence.
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Judgment |
9 October 2018 |
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Reported
The court held section 4(1)(b) of the Refugees Act constitutional, but found procedural unfairness in excluding the applicant.
Refugees Act – Section 4(1)(b) exclusion – Constitutionality – Procedural fairness in asylum decisions – Internal remedies and appeals.
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Judgment |
28 September 2018 |
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Reported
An RRO may extend an asylum permit pending PAJA review; majority held renewal is obligatory until review finalises.
Refugee law – interpretation of section 22(1) and (3) of the Refugees Act – whether ‘outcome’ includes PAJA judicial review – non‑refoulement and purposive/constitutional statutory interpretation – obligation v discretion of Refugee Reception Officer to extend temporary permits pending review – protection of access to court, life, dignity and freedom and security of the person.
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Judgment |
24 April 2018 |
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Reported
Biowatch protection against adverse costs applies, but belated urgent proceedings imposing undue hardship can justify a costs order.
Constitutional litigation — costs — application of Biowatch principle to procedural/ancillary matters — abuse of process, vexatious or manifestly inappropriate proceedings — judicial discretion in awarding costs.
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Judgment |
1 December 2016 |
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Reported
Detention at places not determined by the Director‑General breaches s34(1) and attracts delictual damages.
Immigration Act s34(1) — Director‑General required to determine places for detention of illegal foreigners; Detention in places not so determined unlawful; Place of detention and lawfulness of detention are inseparable; Unlawful detention gives rise to delictual damages; Appellate court will not disturb damages absent misdirection or striking disparity.
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Judgment |
18 February 2016 |
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Reported
Detention pending deportation is unlawful without a Director‑General determination of the manner and place of detention.
Immigration Act s 34(1) – detention pending deportation must be "in a manner and at a place determined by the Director‑General"; absence of such determination renders detention unlawful; principle of legality and international standards require separation of migrants from criminal detainees; damages for unlawful detention and costs awarded.
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Judgment |
29 May 2015 |
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Reported
Director‑General’s closure of a refugee reception office was unlawful, irrational and required restoration plus supervisory reporting.
Administrative law – Refugees Act – closure of Refugee Reception Office – duty to consult interested parties before deciding to close – requirement of rationality and decision‑making free of material mistake of fact; contempt/non‑compliance with court orders – appropriateness of supervisory/structural relief and reporting obligations; access to asylum procedures and protection of vulnerable asylum seekers.
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Judgment |
25 March 2015 |
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Reported
Asylum seekers and refugees lawfully present may apply for trading licences; closures under valid permits are unlawful.
Refugee and asylum-seeker rights – right to seek employment and self-employment – interaction of s22 Constitution and s27(f) Refugees Act – Lebowa Business Act, Businesses Act and municipal land-use scheme do not bar non-citizens from applying for trading licences – closures and confiscations under policing operations unlawful – dignity and international obligations considered.
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Judgment |
26 September 2014 |
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Reported
Blanket confidentiality of asylum applications is overbroad; Appeal Board must have discretion to allow media/public access.
Refugee law — confidentiality of asylum applications; Constitutional law — limitation of freedom of expression under section 36; Proportionality — overbreadth of blanket confidentiality; Remedy — declaration of invalidity suspended; interim reading‑in conferring discretion on Refugee Appeal Board.
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Judgment |
27 September 2013 |
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Reported
Closure of a refugee reception office was unlawful for irrational decision-making and failure to consult affected stakeholders.
Refugees Act – establishment and closure of Refugee Reception Offices – s 8(1) consultation requirement with Standing Committee. Administrative law – whether policy-laden executive decisions constitute ‘administrative action’ under PAJA – separation of powers considerations. Doctrine of legality – rationality review requires decision-making processes to be rationally connected to statutory purpose. Procedural fairness – circumstances may require consultation with organisations with special knowledge; failure to consult can vitiate the decision. Remedy – setting aside of unlawful decision and remittal for reconsideration rather than direct judicial imposition of policy outcome.
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Judgment |
27 September 2013 |
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Reported
Respondents must declare and fill both educator and non-educator school post establishments to protect learners’ right to basic education.
Education law – s100(1)(b) intervention – national executive assumes provincial powers and obligations; Public Service Act and Employment of Educators Act – determination of educator and non-educator post establishments; Schools Act s20 – governing bodies’ role; Norms and Standards – requirement for adequate non-teaching personnel; State duty to respect, protect and fulfil right to basic education; obligation to declare and fill budgeted posts.
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Eastern Cape
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Judgment |
3 July 2012 |
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Reported
An illegal foreigner who indicates an intention to seek asylum is entitled to a 14‑day transit permit and protection from deportation.
Immigration law – interaction with refugee law – regulation 2(2) of Refugee Regulations – entitlement to 14‑day asylum transit permit where an illegal foreigner indicates intention to apply for asylum. Refugee law – application after arrest – once intention to apply is evinced, protection of Refugees Act (including s 21(4) and s 22) applies and bars deportation while application is pending. Administrative law – delay in applying for asylum – mere delay is not a statutory ground to refuse an otherwise meritorious asylum claim. Procedural – declaratory relief as to lawfulness of initial arrest declined where not sought and similar issues decided in prior cases.
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Judgment |
28 March 2012 |
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Reported
The applicant cannot be extradited or deported to face a real risk of the death penalty absent a written assurance against execution.
Constitutional law – extradition/deportation – right to life and prohibition of cruel, inhuman or degrading treatment – S v Makwanyane and Mohamed require written assurance that death penalty will not be imposed or carried out before removal; deportation cannot circumvent this obligation; international law cannot justify conduct inconsistent with the Constitution.
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Gauteng
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Judgment |
22 September 2011 |
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Reported
Applicants detained in an airport inadmissible facility are within South African jurisdiction and entitled to protection and re‑admission pending asylum determination.
Refugee law; ports of entry; inadmissible facility; non‑refoulement; jurisdiction of South African courts over detainees at international airports; duty to re‑admit and process refugees and asylum seekers; waiver of refugee status not presumed; interplay with international aviation instruments.
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Judgment |
15 February 2011 |
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Reported
Arrest under s34 is permissible without prior s8 review, but detention and deportation were unlawful for failure to comply with mandatory warrants and procedures.
Immigration law – section 8 v section 34 – review/appeal procedure not a precondition to arrest under s34; Detention/deportation – compliance with Regulation 28 and Forms (warrants for detention and removal) and prompt written notification required; Disguised extradition/non-refoulement – high evidentiary threshold; Enforced disappearance (Rome Statute) – not established; Contempt – effect of court order and amended order; Onus on state to prove lawfulness of detention/deportation.
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Judgment |
31 March 2009 |
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Reported
A chaotic, over-inclusive appeal record justified striking the matter from the roll and ordering the attorney to pay wasted costs de bonis propriis.
Court procedure – appeal record – inclusion of irrelevant documents and failure to prepare core bundle; Practice note certifying entire record – breach of rules; Attorney’s conduct – personal liability for wasted costs de bonis propriis; Public interest considerations – balancing defective record against importance of issues (dissent).
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Judgment |
27 November 2008 |
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A foreign national without a valid work permit can be an "employee" under the LRA, so the CCMA may have jurisdiction.
Labour law – definition of "employee" (s 213 LRA) – whether dependent on valid common law contract. Immigration law – s 38(1) and s 49 – criminal sanction for employing foreign nationals without permit but no express contractual nullity. Constitutional law – s 23 right to fair labour practices and interpretive obligations (s 39(2), s 233) – purposive interpretation favouring protection of workers. International law – ILO conventions and migrant worker instruments relevant to interpreting labour protections for irregular/unauthorised workers. Administrative law – review standard: whether Commissioner's decision was one a reasonable decision-maker could reach.
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Gauteng
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Judgment |
28 March 2008 |
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Reported
Whether refugees may be excluded from private security registration and how s23(6) exemptions must be applied.
Constitutional law – Equality (s9) – Whether excluding non-citizen refugees from registration as private security service providers constitutes unfair discrimination; Administrative law – PAJA – refusal to register/withdrawal of registration as administrative action; Statutory interpretation – s23(6) discretion on ‘good cause shown’ and its role in tempering s23(1)(a); Refugee law – obligations under 1951 Convention and Refugees Act regarding right to seek employment; Remedies – duty to inform applicants and to consider exemptions.
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Judgment |
12 December 2006 |
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Applicant failed to prove well‑founded fear for political opinion or membership of a protected group as parent of multiple children.
Refugee law — well‑founded fear: burden of proof, credibility and objective corroboration; Particular social group — parents of more than one child under China's one‑child policy not a protected group where policy is of general application; Refugee Act s3 and international guidance considered.
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Judgment |
15 November 2006 |
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Reported
Port-of-entry detainees have constitutional protection; s34(8) requires reasonable suspicion and 30-day judicial oversight.
Constitutional law — standing — public-interest standing for NGOs; Immigration law — ports of entry and detention — s34(8) requires reasonable suspicion before detention; Rights — sections 12 and 35(2) apply to all persons physically inside the Republic; Limitation and remedy — read-in 30-day judicial oversight for ship detentions (extension up to 90 days).
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Judgment |
9 March 2004 |
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Reported
A blanket prohibition on asylum-seekers' work and study is unlawful; the Standing Committee must assess individual cases.
Refugees Act — power to determine conditions of asylum-seeker permits (s 11(h)) — Minister's regulations beyond power — blanket prohibition on employment and study unlawful as unjustified limitation of dignity (s 10) and education (s 29) — remedy: remit to Standing Committee to decide individual cases.
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Judgment |
28 November 2003 |
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Reported
The applicant's confirmation failed: regulations are not Acts of Parliament and the High Court order was too vague to confirm.
Constitutional procedure – section 172(2) confirmation – declarations of invalidity must target an Act of Parliament, provincial Act or conduct of the President; regulations are subordinate instruments and not "Acts of Parliament" for confirmation purposes; judicial orders declaring invalidity must specify the statutory provisions or executive conduct impugned; overly vague or mandamus-style orders cannot be confirmed.
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Judgment |
8 October 2001 |
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Reported
Section 25(9)(b) read with ss26(3) and (6) unjustifiably permits refusals that infringe spouses’ constitutional dignity and right to cohabit; declaration suspended with interim relief.
Immigration law — Interpretation of s25(9)(b) — Temporary residence permits must be valid at time of grant — Administrative discretion under ss26(3),(6) — Legislative omission as to factors for refusal — arbitrary limitation of constitutional right to dignity/cohabitation — declaration of invalidity suspended with interim mandamus directing officials not to refuse/extend permits absent good cause.
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Judgment |
7 June 2000 |
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Reported
A regulation excluding non‑citizens from permanent teaching posts unfairly discriminates against permanent residents and is unconstitutional.
Equality — Discrimination — Citizenship as an unspecified ground — Differentiation on citizenship can impair dignity and be unfair; protection of citizens' employment does not justify excluding permanent residents; subordinate regulations cannot be read to neutralise unconstitutional discrimination.
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Judgment |
26 November 1997 |