Case CCT 214/24
[2026] ZACC 18
Hearing Date: 10 November 2025
Judgement Date: 12 May 2026
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 12 May 2026, the Constitutional Court handed down judgment in an application for leave to appeal against an order and judgment of the Supreme Court of Appeal.
The applicants are the Director-General of Home Affairs; Chief Director of Asylum Seeker Management in the Department of Home Affairs (Department); the Cape Town Refugee Reception Office Manager; the Minister of Home Affairs (Minister); and the Chairperson of the Standing Committee for Refugee Affairs (Standing Committee).
The respondents, Amina Irankunda and Arava Niyonkuru, are Burundian nationals. The respondents fled from Burundi to South Africa between 2008 and 2012 and sought asylum in South Africa in terms of the Refugees Act 130 of 1998 (Refugee Act). Their asylum applications were refused by the Refugee Status Determination Officer (RSDO) on the basis that they were manifestly unfounded, which was confirmed by the Standing Committee in February and December 2014, respectively and which decisions were not challenged. The respondents lodged new asylum applications with the Department on 3 August 2018 on the basis that they had become sur place refugees because of the widespread political violence that had erupted in Burundi in 2015.
On 29 November 2018, the respondents approached the High Court on an urgent basis to compel the Department to grant them asylum seeker visas in terms of section 22 of the Refugees Act, pending the final relief in the main application which sought to compel the Minister to accept and consider the asylum seekers’ applications as sur place refugees. The High Court held that the respondents had a clear right to have their applications for asylum considered and were thus entitled to the section 22 visas they sought. However, the main application was dismissed on the basis that the respondents ought to have challenged the Department’s decision to reject their first asylum applications through judicial review instead of lodging an application to compel the consideration of their subsequent applications.
On appeal, the Supreme Court of Appeal granted an order in favour of the respondents, holding that once a refugee sur place claim has been made, there is no basis to demand that an asylum seeker return to their country of origin pending the determination of their application, nor to reject the application on the basis that the initial one had been finally determined. The appeal was consequently upheld and the Department was directed to accept the respondents’ sur place refugee applications.
The applicants submit that this matter engages this Court’s constitutional and general jurisdiction as it concerns the interpretation of the Constitution and national legislation passed to give effect to South Africa’s international law and constitutional obligations owed to asylum seekers. The issues, it submits, involve the interpretation of whether the Refugees Act recognises or permits asylum seekers to lodge second or further applications for asylum once their initial asylum seeker application has been declined. The applicants submit further that the Refugees Act makes no provision for a second or repeat application for asylum – either based on “new facts” or on any other basis – and no right to reapply exists in any of the international law instruments recognised in section 1A of the Refugees Act.
The respondents submit that leave to appeal should be refused as the applicants lack prospects of success in this appeal. The respondents submit that the applicants’ approach misunderstands the nature of the right of non-refoulement and the protections flowing from that right. They posit that non-refoulement is not a right to a procedure but a substantive human right to protect persons from being returned to countries where they reasonably fear persecution or irreparable harm. A final rejection of their initial application, it is submitted, does not extinguish their entitlement to the right of non-refoulement. They submit that the Refugees Act makes provision for subsequent sur place applications and this recognition is in line with South Africa’s obligations under international law.
Scalabrini Centre of Cape Town and Trustees of the Scalabrini Centre of Cape Town have been admitted as amici curiae in this matter and submit that the Refugees Act, in light of constitutional and international law obligations, both permits and requires the consideration of sur place and subsequent applications.
The first judgment distilled two primary issues for determination. First, whether the Court had jurisdiction to hear the matter and, if so, whether leave to appeal should be granted. Second, whether failed asylum seekers have a right under the Act to make subsequent applications for asylum. This turns on the proper interpretation of the Act, specifically whether it provides a clear right to submit subsequent asylum applications.
In a majority judgment written by Kollapen J (with Mlambo DCJ, Mathopo J, Mhlantla J, Musi AJ, Savage J and Tshiqi J concurring) it was held that the matter engaged both the Court’s constitutional and general jurisdiction in that it concerns the interpretation of national legislation passed to give effect to South Africa’s international law and constitutional obligations owed to asylum seekers, and regards an arguable point of law whether a person has a right to make subsequent applications for asylum. It also found that the issues implicated in this matter are significant and extend beyond the interests of the litigating parties, and as such, leave to appeal must be granted. So too was condonation for the applicants’ 14-day delay in filing their application granted.
Turning to the substantive issues, the first judgment identified the need to have a clear understanding of the concept of sur place refugees and the related but different concept of subsequent applicants for asylum on the part of a failed asylum seeker. “Sur place” describes the situation of a person who was not a refugee when leaving their country of origin but who thereafter becomes a refugee as a result of changed circumstances. The Court in Ruta v Minister of Home Affairs [2018] ZACC 52 described sur place refugees as international category of refugees that enter a country on one basis, and are involuntarily rendered refugees due to supervening events in their countries of origin. It is incorrect to use the term sur place to describe the situation when a failed asylum seeker makes a subsequent application for asylum “sur place” based on changed circumstances.
The first judgment found that a first-time sur place application is in truth no different from an ordinary claim to asylum and must be processed in the same way. However, subsequent sur place claims rest on a different footing and there are valid reasons for treating them differently. Such claims would follow a failed asylum application and would generally warrant considerations that were not applicable in a first-time application – most importantly, evidence of a change in circumstances which may lead a decision maker to grant instead of refuse asylum. In this regard, the first judgment considered the foreign jurisdictions of New Zealand, the United Kingdom and the European Union all of which govern subsequent requests for asylum differently to first-time applications.
In reaching a decision in this matter, the first judgment then addressed the interpretation of the Act, relying on the trite principles of legislative interpretation, considering the language used in the Act, understood in its context and with regard to the purpose of the legislation. In doing so, it reiterated the true issue at the heart of the matter: being whether the Act, properly interpreted, creates the right for a failed asylum seeker to make subsequent applications. It is not about whether, as a matter of policy, such a right should exist in the scheme of the refugee protection framework in South Africa. The first judgment does not address that issue as it was not pleaded or before the Court for determination.
The first judgment found that beyond defining what is abusive, there is nothing else in the section 1 definition, or the Act as a whole, which provides for the right to make a subsequent application. If the Act evidences a right to make subsequent applications, then it should at the very least describe the right and what it entails, as well as how it is to be exercised. This is how other jurisdictions deal with recognising the difference between a first and a subsequent application. It would require a giant leap in reasoning to suggest that the mere inclusion of a reference to prior applications in the definition section coupled with the absence of provisions excluding such applications is dispositive in answering the question as to the existence of a right.
The Act, if interpreted as the respondents argued and in the absence of a framework for subsequent applications, will result in every subsequent application, irrespective of its merit, being treated in the same way as a first application. Such a subsequent applicant would follow the ordinary course of having an interview and a full determination of the application and would also be entitled to the review and appeal rights that attach to a first application. In those circumstances, which the Supreme Court of Appeal described as a never-ending cycle, an unsuccessful applicant for asylum will never be capable of being returned to their country of origin. This is not the practical system that Ruta described.
In upholding the appeal, the first judgment concluded that the Act cannot bear the weight of subsequent asylum applications, as it stands, and to conclude differently would place those applications in a framework which was not designed to accommodate them. So too will it invite the inevitable chaos which accompanies what at best may be described as vagueness.
In the circumstances, the first judgment, which commanded the majority, granted leave to appeal, upheld the appeal, set aside the order of the Supreme Court of Appeal, and in its place made an order dismissing the appeal from the High Court to the SCA.
In a joint dissent, Rogers J and Nicholls AJ took the view that the Act is reasonably capable of an interpretation that allows a further application for asylum after the rejection of a first one.
The dissenting judges rejected the first judgment’s absolute prohibition of the right to bring a further application. They used the example of X to demonstrate that while her first application may be rightly refused, when the conditions in her country of origin deteriorate, the guarantee of non-refoulment is removed, if no further application is permitted. Yet, when contrasted with Y, who is in the same position, but chose not to bring an earlier application, Y may apply for and receive asylum, whereas X must be deported to face persecution only because she made an earlier application. To them, this distinction is irrational and inimical to the rule of law.
Nicholls AJ and Rogers J proceeded to engage section 39(2) of the Constitution to emphasise that legislation must be interpreted to favour a reasonable interpretation that avoids constitutional invalidity. They noted that non-refoulment protects a cluster of constitutional rights and applies to all foreigners, including unlawful entrants. Thus, an approach that forces deportation in the face of a material deterioration of circumstances would violate non-refoulment and frustrate the Act’s rights-conforming approach. That approach would also fall foul of the constitutional injunction to protect the bests interests of the child, as children’s asylum status depends on the caregiver’s application. Yet, the Act can be interpreted harmoniously to safeguard non-refoulment.
They turned to section 233 of the Constitution, which requires a court to prefer an interpretation consistent with international law. Non-refoulment is a non-derogable and fundamental norm in international law. The UNHCR Guidance in particular assumes that asylum systems will have a way to consider subsequent applications or re-open cases in the event of new facts or a material change in circumstances. Given that children’s rights are also implicated, the dissent highlights the relevance of the binding injunction of international children-rights conventions to treat the best interests of refugeeseeking children as a primary consideration.
As a fundamental norm, section 2 gives non-refoulment extraordinary status and overriding force. The dissent held that this must weigh heavily towards an interpretation that does not sanction removal into persecution unless expressly stated otherwise. Even if there were an express prohibition, section 2 might prevail. However, since there is no express prohibition, the Act can be interpreted harmoniously to allow a further application if there is a material change in circumstances.
The dissent found support for this interpretation in the language of the Act. Sections 3 to 5 govern qualification, exclusion and cessation but do not treat a prior rejection as a ground of cessation or exclusion. Similarly, section 21, which governs the right to apply for asylum, does not confine a person to one application. To do otherwise is to imply a restriction, even though effect can be given to the Act without reading in a limitation. Thus, the dissent held that a person who later qualifies for refugee status under section 3 should not be barred from making a second application under section 21 because of a non-listed exclusionary ground of prior refusal.
Adopting a holistic interpretation of the Act, the dissent regarded the definition of “abusive application for asylum”, which includes the rejection of one or more prior applications without any “substantial changes in circumstances”, as a contextual indicator of the legislature’s intention. It held that it is impossible to reconcile this definition with an absolute ban, as the legislature contemplated later applications and chose to treat them as abusive only if there is no substantial change. The dissent held that this supports reading section 21 to permit a further application in appropriate cases.
The dissenting judges rejected the claim that the Act lacks a mechanism and procedure for later applications. They noted that an application made without a substantial change can be rejected as abusive and the Minister has regulation-making powers to address practical concerns (disclosure of prior refusals, identity checks, summary rejections and screening repetitive claims). Thus, the dissent held that lack of a specially tailored mechanism is no justification for reading a limitation in section 21.
The dissent held that a person whose application has been finalised falls to be dealt with as any other illegal foreigner. However, an unlawful entrant who becomes a sur place refugee by virtue of changed circumstances cannot be denied the guarantee of non-refoulment because of an earlier application. Regarding the fear of repeat applications, Nicholls AJ and Rogers J stress that deterrence should not come at the cost of deserving repeat applicants. The dissent found that the substantial change threshold and regulation-making powers provide a practical sifting mechanism and aligns with comparative practice.
Accordingly, the dissenting judgment would have granted leave to appeal but dismissed the appeal.
The Full judgment here