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Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others CCT126/25

Case  CCT 126/25/24
[2026] ZACC 30

Hearing Date: 12 February 2026

Judgement Date: 07 July 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, 7 July 2026, the Constitutional Court handed down judgment in an application for confirmation of an order of the High Court of South Africa, Western Cape Division, Cape Town, declaring certain provisions of the Refugees Act 130 of 1998 unconstitutional and invalid.

The applicants are the Scalabrini Centre of Cape Town and its trustees. The respondents are the Minister of Home Affairs, the Director-General of Home Affairs, the Chief Director of Asylum Seeker Management in the Department of Home Affairs, the Refugee Appeals Authority of South Africa and the Standing Committee for Refugee Affairs. The Helen Suzman Foundation, Amnesty International, the Global Strategic Litigation Council for Refugee Rights, the International Detention Coalition and the United Nations High Commissioner for Refugees were admitted as amici curiae.

This matter concerns access to the asylum system. It raised the question whether asylum seekers may be prevented from having their claims determined on the merits because of procedural non-compliance relating to their immigration status, manner of entry into South Africa or failure to report to a Refugee Reception Office within the prescribed period.

The challenged statutory provisions are sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act. Broadly speaking, these provisions permit asylum seekers to be excluded from refugee status, or prevented from entering the asylum process, where they have allegedly committed certain immigration-related offences, entered South Africa other than through a designated port of entry, failed to report to a Refugee Reception Office within five days, or are not in possession of an asylum transit visa.

The High Court also declared regulations 8(1)(c)(i), 8(2), 8(3) and 8(4) of the Refugee Regulations unconstitutional and invalid. Those regulations concern the documents and explanations required from persons who seek to apply for asylum.

In the High Court, Scalabrini contended that the challenged provisions create a disbarment regime. Its case was that asylum seekers may be excluded from the asylum system solely because of procedural non-compliance, without any assessment of the merits of their claims. Scalabrini submitted that this violates the principle of non-refoulement, the Bill of Rights and international law.

The High Court upheld the challenge. It held that the challenged provisions prevent asylum seekers from accessing a merits-based determination of their claims, and that the provisions are particularly harmful to children. It therefore declared the challenged provisions and regulations unconstitutional and invalid. The matter came before this Court for confirmation of the High Court’s order of constitutional invalidity in respect of the provisions of the Refugees Act.

In a unanimous judgment penned by Majiedt J, this Court confirmed the declaration of constitutional invalidity.

This Court first considered whether it had jurisdiction. It found that the matter plainly engaged this Court’s constitutional jurisdiction because it concerned the confirmation of a declaration of constitutional invalidity of provisions of an Act of Parliament.

The Court then addressed the respondents’ purported attempt to appeal against the High Court’s declaration that the regulations are invalid. The Court held that declarations of invalidity concerning regulations do not require confirmation by this Court. Regulations are subordinate legislation. A party wishing to challenge a declaration of invalidity concerning regulations must bring a proper application for leave to appeal under rule 19 of this Court’s Rules.

The respondents did not do so. Instead, they purported to rely on rule 16 and section 172(2)(d) of the Constitution, which concern confirmation proceedings relating to Acts of Parliament, provincial Acts and conduct of the President. This was the incorrect procedure. The purported application was also substantially out of time, and no application for condonation was filed. The respondents therefore did not properly place the validity of the regulations before this Court.

The consequence was that this Court was concerned only with the constitutionality of sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act. The regulations, having been declared invalid by the High Court and not properly appealed, were treated as having no legal force. However, the Court considered them in a limited way to understand how the statutory scheme was intended to operate in practice.

The respondents argued that Scalabrini’s challenge was abstract and should not be entertained. This Court rejected that argument. It held that Scalabrini had placed extensive evidence before the High Court from affected persons, experts and community stakeholders. That evidence provided a sufficient factual foundation for the constitutional challenge. The Court held that, in any event, even where a challenge is abstract, courts may in appropriate circumstances consider facial constitutional challenges to legislation, particularly where rights are threatened.

Turning to the merits, this Court first considered sections 4(1)(f), 4(1)(h) and 4(1)(i). These provisions operate as procedural filters. They allow asylum seekers to be disqualified from refugee status because of immigration-related procedural non-compliance before their claims are assessed on the merits.

This Court held that this is inconsistent with the principle of non-refoulement. That principle protects asylum seekers against being returned to a country where they may face persecution or serious harm, unless and until their claims have been finally rejected after a proper merits-based process. The protection applies before formal recognition as a refugee, because a person may in substance be a refugee even before that status has been formally determined.

The Court held that procedural non-compliance, even where serious, cannot justify disbarment from the asylum system without a merits-based assessment. The impugned provisions bear no resemblance to the limited exceptions to non-refoulement recognised in international refugee law, such as where a refugee poses a danger to the security of the host state or to the community.

The respondents relied on Ruta, Abore and Ashebo. The Court held that reliance to be misplaced. Ruta and Abore confirmed the importance of non-refoulement and the need for merits-based assessment. Ashebo is distinguishable, because it concerned detention at an earlier stage of the asylum process and deliberately left open the question whether the impugned provisions are unconstitutional. That disposed of sections 4(1)(f), 4(1)(h) and 4(1)(i).

The Court then considered section 21(1B). It did so in two ways.

The first approach considered section 21(1B) together with the now-invalid regulations. On this approach, section 21(1B), read with regulation 8(3), creates a threshold process that may prevent an asylum seeker from entering the asylum system before the merits of the claim are considered.

The Court made plain that this first approach is not a departure from the well-settled principle, which this Court has previously confirmed in Marshall, that regulations may not be relied upon as an aid to the construction of the meaning of a statute. The Court found that considering regulation 8(3) in assessing the constitutionality of section 21(1B) was permissible in this case. This is because the regulation was not used to override, restrict or alter the meaning of the section. Rather, it was considered as part of the broader legislative context in which section 21(1B) operates. The regulation therefore did not dictate the meaning of the Act, but merely assisted the Court in understanding how the statutory scheme was designed to operate.

Moreover, the Court held that this scheme creates multiple and confusing standards. An asylum seeker may, in terms of different provisions in the Refugees Act, be required to show “valid reasons”, “good cause” or “compelling reasons” at different stages, to different officials, in relation to substantially the same procedural non-compliance. None of these standards is adequately defined. The scheme provides no meaningful criteria to guide decision-makers and creates a real risk of arbitrary and inconsistent decision-making.

The second approach considered section 21(1B) in isolation, without regard to the regulations. On this approach, the provision is vague and functionally ineffective. It requires an immigration officer to interview an applicant to determine whether “valid reasons” exist for the absence of an asylum transit visa, but it does not explain what counts as a valid reason, how the enquiry must be conducted, or what legal consequence follows from the outcome of the interview.

This Court held that, considered on its own, section 21(1B) permits an arbitrary exercise of public power. It subjects vulnerable asylum seekers to an additional bureaucratic process without clear standards, guidance or consequences. It therefore fails on rationality and is unconstitutional.

The Court also accepted that the challenged provisions have serious consequences for children. Where a child’s asylum claim is tied to that of a parent, the child may be excluded from the asylum system because of the parent’s procedural non-compliance. This occurs without an individual assessment of the child’s circumstances and without proper regard to the child’s best interests, contrary to the dictates of section 28 of the Constitution.

For these reasons, the Court held that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act are inconsistent with the Constitution and invalid. The High Court’s order of constitutional invalidity was therefore confirmed. As to remedy, the respondents did not seek a suspension of the declaration of invalidity or any reading-in order. The Court therefore confirmed the declaration of invalidity.

Turning to costs, the Court held that the respondents must pay the applicants’ costs. The Court observed that the respondents litigated poorly in relation to their purported challenge to the High Court’s order declaring the regulations invalid. Their failure to follow the proper procedure, their delay, and their failure to seek condonation were matters of serious concern.

The Court further expressed concern about sweeping and unsupported assertions made during argument regarding Afghani and Bangladeshi nationals’ involvement in human trafficking in South Africa. The Court held that such assertions, made without an evidentiary foundation, undermined the integrity of the State’s case and risked promoting prejudicial narratives about refugees and asylum seekers. This conduct was deserving of strong deprecation.

The Court made the following order:

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The Full judgment  here