Category: XenoBarometer

Compared with their campaigns for the 2021 local government elections (LGE), political parties across the spectrum have shifted to the right in their rhetoric and promises on immigration enforcement. Several parties have also made the policing of foreign nationals central to their election messages. 

Yet many of these promises may be impossible to fulfil, as they fall outside the legal powers and jurisdiction of local government. Fact-checking company Ukweli, at Viewfinder’s prompting, reviewed twelve parties’ election manifestos for promises relating to immigration.

Ukweli identified sixteen election promises, across seven of the party manifestos reviewed, which related directly to immigration. Those parties were ACDP, ActionSA, ANC, BOSA, AMM, EFF and IFP. Immigration was mentioned in a further 11 passages across the manifestos, but without any specific promises being made. 

Ukweli’s analysis determined that none of the parties’ promises on immigration could be delivered by a municipal council using only its own powers. Municipal council powers are limited to municipal-level services and local bylaws, whereas immigration control, visas, asylum, and deportation are the exclusive mandate of the national government.

Half of the promises identified were deemed to lie entirely outside council powers, and within the domain of other branches of government. For instance, the ACDP promised to “ensure” that government enforced immigration laws and executed deportations. BOSA promised to “facilitate” a “documentation registration window” to help undocumented immigrants to regularise.

Several of the other promises identified would require substantial support from other spheres of government to implement. ActionSA pledged to use routine municipal operations to identify and refer suspected immigration violations to the relevant authorities, and to ensure that cases are “followed through”. The AMM promised to “establish specialised municipal police units to fight drugs, illegal immigration and building hijackings”.

An immigration attorney who assessed the analysis and its findings concluded that they were “broadly correct”.  He emphasized that collaboration between municipal councils and other government spheres is often highly complex.

“Delivering on promises that require a mix of powers is largely unattainable for councils that do not have party influence in the national and provincial portfolios that they would need to collaborate with to get the job done,” he said. 

He however requested anonymity due to prior threats from the anti-immigration movement.

A rightward shift in parties’ stance on foreign nationals

Five years ago, in the run up to the 2021 LGE, parties made very few promises about immigration enforcement. For instance, in 2021 the manifestos of the ACDP, ANC and ActionSA make no mention of immigration at all. In their 2026 manifestos, these three parties collectively made nine immigration enforcement related promises. 

The ACDP said it would deliver, “developmental plans to deal effectively with migratory realities and challenges”. The ANC promised to tighten immigration-law enforcement by working with the departments of Home Affairs, Employment and Labour, and law enforcement agencies to protect communities, workers and legitimate businesses, promising to “strengthen compliance”.

Of all the manifestos, only the EFF’s adopts a supportive stance, promising “targeted support for vulnerable groups, including persons with disabilities, LGBTQIA+ persons, migrants, people living in poverty, and survivors of gender-based violence.”

Comparison: 2021 vs 2026

In 2021, the Covid-19 pandemic was an abiding concern for South Africans. In 2026, the political discourse in the country has been largely subsumed by the demands of anti-immigration movements such as March and March.

Mirroring this, the language that political parties use to describe foreign nationals has markedly changed between election manifestos of 2021 and 2026 – often shifting from positive characterisations of migrants in 2021, to hard-line positions in 2026.

For instance, in 2021 ActionSA promised “to ensure that it is easier for foreign nationals to enter our country legally or to get protected legal status”. In 2026, it promises “to use every lawful municipal power available to help tackle crime and illegal immigration”.

In 2021, the IFP promised “to prioritize South Africans for job and trade opportunities”. In 2026, it insists on a more hardline framing: “the spaza-shop industry must be reserved for South Africans in every municipality – large or small.” It has promised to “crackdown on property owners, landlords or South Africans who commit offences by fronting for, or registering businesses on behalf of, undocumented foreign nationals.”

Individuals on the campaign trail

The absence of immigration enforcement promises from some parties’ manifestos has not stopped individual senior party members from making public statements on immigration on the campaign trail.

While campaigning in KwaZulu-Natal on 25 October the First Deputy President of the MK Party Duduzane Zuma questioned what he viewed as selective, racially-framed outrage over illegal immigration. He argued for a “blanket approach” to immigration enforcement, asking why undocumented European nationals are not subjected to the same scrutiny and protests as black African foreign nationals.

The word immigration doesn’t appear once in the DA’s 2026 manifesto. This did not stop Tshwane mayor Cilliers Brink from leading and publicising a raid on suspected hijacked premises in search of undocumented migrants, accompanied by private security.

Spaza-shops and informal traders in the cross-hairs

Many of the immigration enforcement promises parties made in 2026 address foreign ownership of informal shops and grocery businesses, the first time such promises have been made in LGE manifestos.

The ANC promises, for example, that in order to “protect communities, workers and legitimate businesses” its councils will work with national departments “to ensure compliance with labour and immigration laws…and ensure that opportunities created through municipal programmes, procurement and trading spaces prioritise South African workers, entrepreneurs and businesses”.

BOSA promises voters “strict municipal frameworks that prioritise South African citizens” as well as a “zero-tolerance policy for unlawful economic participation”.

The IFP’s manifesto is particularly focused on the regulation of spaza-shops, promising voters its municipalities will “halt the operations of spaza shops and food-handling facilities that fail to meet health, safety and business-registration requirements…[and] seek the prosecution of property owners, landlords or South Africans who commit offences by fronting for, or registering businesses on behalf of undocumented foreign nationals.”

An immigration lawyer weighs in

Asked if such promises were enforceable, the attorney consulted for this article said: “a municipality creating its own foreign-ownership ban is likely overstepping into national immigration territory”. 

But, there have been examples where national government is trying to facilitate some municipalities’ appetite for regulating businesses to favour South Africans at the expense of foreign owners.

He cited the example of Minister of Cooperative Governance and Traditional Affairs (CoGTA) Velenkosini Hlabisi, a member of the pro-regulation IFP, who in 2024 gazetted standard draft by-laws for township economies, including clauses that explicitly allow municipalities to set quotas on the proportion of businesses owned by foreign nationals. These stipulated that at least 60% of businesses in certain categories must be locally owned, making it that a South African cannot transfer a business to a foreign national without approval from both the municipality and the Department of Home Affairs.

“If a municipality implements a quota system that is explicitly authorized and standardized by a national CoGTA framework, the municipality is acting lawfully within delegated powers,” he said.

The MK Party is also seeking to attack foreign ownership of spaza shops at the national level, with MP Carol Mafagane tabling a Private Member’s Bill in May this year seeking to make it explicitly illegal for non-citizens to own or run spaza shops. 

“The legal concern here shifts from municipal overreach to national constitutional rights, specifically whether such a blanket ban at the national level would violate constitutional protections against unfair discrimination,” said Viewfinder’s source.

*This story also appeared in Daily Maverick

XenoBarometer tracks the anti-immigrant movement and its impact. We aim to surface underreported stories, paying close attention to potential rights abuses, emerging patterns in anti-immigrant mobilisation and failures in the government’s response.  It is produced by the Southern Africa Accountability Journalism Project (SA | AJP), an initiative of the Henry Nxumalo Foundation working with Viewfinder and with the financial assistance of the European Union. It can under no circumstances be regarded as reflecting the position of the EU.

A Ugandan man who was attacked by a mob of March and March supporters in Durban on Wednesday last week has described his brush with death from an Addington Hospital ward where he was recovering from his injuries.

In a video of the attack, shared widely on social media last week, the man is seen running before he is surrounded by protestors wielding an assortment of weapons. As he is attacked he runs towards two yellow bibbed officials, understood to be eThekwini Municipality peace officers. The officers are seen trying to intervene in the attack, but soon step back.

In a matter of 20 seconds, attackers are seen to land more than a dozen blows onto the man who stumbles to the tarmac and covers his head. As a police vehicle enters the frame, the attackers are seen to slowly disperse. 

Initially, a voice note circulating on WhatsApp alleged that the man had died. But, Viewfinder confirmed that he was alive after engaging various immigrant community leaders in Durban. A leader in the Ugandan community, who asked that he be identified only as “Andrew”, agreed to facilitate an interview with the victim of the attack where he was recovering in hospital. 

Andrew accompanied this journalist to Addington Hospital on Friday evening. There the 45-year-old victim was in bed, surrounded by friends and family. He asked, as well, to only be identified by his first name – “Simon” – for fear of further reprisal from anti-immigrant protesters.

He said that he was at work on Yusuf Dadoo Street in the Durban city centre on Wednesday afternoon when he heard the sounds of a nearby protest organised by March and March. Fearing a confrontation with the marchers, he decided to go home. 

He walked down Yusuf Dadoo Street, when he noticed another group of marchers heading straight towards him. Some of them were carrying weapons and wearing masks and balaclavas, he said. He decided to make a run for it. When the group noticed him running, he said, they gave chase.

Simon’s eyes began to well up with tears when he got to this part of the story.

“He struggled to run away, [but] he thought he found a safe direction when he saw the police,” said Andrew, referring to the eThekwini peace officers who can be seen in the video.

Simon suffered a bloody puncture wound to his back which he believes was caused by a club with a nail driven through it. He said that he momentarily lost consciousness. 

“I lost my phone, my wallet, my documents,” he said. He does not know how.

Andrew, who was present but escaped injury himself, drove Simon to  King Dinizulu Hospital for emergency first aid and X-rays.

The attack on Andrew happened on Wednesday afternoon. Early the following morning another foreign national was beaten to death by a mob of fifty people in the Durban city centre, according to a police statement.

Police subsequently said that five men, aged between 19 and 46-years-old, had been taken in for questioning over the murder on Thursday and an attempted murder on Wednesday. The latter incident is understood to be the assault on Simon which was caught on video. 

Viewfinder has previously reported that armed groups of March and March supporters have been accused in a string of targeted attacks on foreign nationals in Durban throughout 2026. More than 400 people, almost all documented refugees and asylum seekers, were displaced from their homes and camped on the pavement outside the Department of Home Affairs offices on Che Guevara Road in Durban. 

In response to queries at the time, KwaZulu-Natal police spokesperson, Colonel Robert Netshiunda said that police “are not aware of any xenophobic attacks at any part of the province.”

Asked this week over WhatsApp for clarification of this statement and whether the recent murder and attempted murder have changed the police’s outlook, Netshiunda did not respond.

The Siyafana Sonke Action Campaign, a civil society coalition that supports refugees in Durban, has logged incidents of violence against foreign nationals throughout 2026. 

“Since May 2026, Durban has seen a steady escalation in the violence directed against foreign nationals by anti-migrant groups,” said Yeshelen Govender, of the Siyafana Sonke.

“A pattern is clearly identifiable: as anti-immigrant marches progress, small groups of masked and armed men bleed off and the supervising police detachments become stretched. These small groups stop people to conduct ‘document checks’ or interrogations in isiZulu. Failure to immediately prove a commanding grasp of the local language invariably results in a beating.”

March and March has consistently characterised itself as a non-violent movement and distanced itself from supporters who perpetrate acts of violence. 

Sandile Dube, March and March’s spokesperson, was sent a query asking whether he had any comment on the acts of violence which had accompanied March and March events last week. He did not immediately respond. 

This story also appeared in Daily Maverick.

Anti-immigrant protesters seeking to intimidate traders and shut down foreign-owned shops across South Africa have repeatedly invoked a misleading claim amplified by at least two government ministers in 2024.

In October 2024, the deaths of six children in Soweto, initially suspected to have resulted from consuming contaminated snacks bought from a spaza shop, triggered a government crackdown in Gauteng.

On 23 October 2024, Small Business Development Minister Stella Ndabeni-Abrahams told Parliament that “for you to be able to trade, the Immigration Act, section 15 says that you must at least invest a minimum of R5 million into the economy for you to get a Business Visa.” 

The claim, a version of which was repeated by Minister in the Presidency Khumbudzo Ntshavheni, was reported in the news media.

While the claim was correct in regard to business visas, immigration lawyers agree that there are other legal ways for foreign nationals to operate businesses in South Africa.

Still, soon after Ndabeni-Abrahams’ statement, Operation Dudula started to argue that foreign owned businesses should not be allowed to operate if they had not invested R5-million into the economy. African Transformation Movement (ATM) leader Vuyo Zungula repeated the claim multiple times in an interview with SABC News on spaza shop regulation in November 2024.

With anti-immigrant protests sweeping South Africa in 2026, the claim is again being used to target foreign businesses. In a video clip circulated widely online, protesters in Qonce confronted a Nigerian-born car wash owner. The businessman insists that he is documented. The confrontation in the video clip escalates nonetheless.

“We are here to tell you: according to Immigration Act 2002, sections 13, 15 and 19 you are not allowed to operate any kind of business, not unless you have a minimum investment of 5 million rand and above,” the interviewer says. 

“We are not asking you. You have to close this carwash now. It belongs to South Africa.”

The interviewer is seen holding a microphone with an eNCA logo and the clip was broadcast by eNCA in May 2026. The channel subsequently apologised for broadcasting the clip “without the requisite context or balance”. But, the apology did not clarify what context or balance was missing.

Politicians, protestors and news journalists have continued to amplify the R5 million “investment” claim.

For instance, in June, protesters reportedly forced the closure of foreign-owned shops in Lydenburg, Mpumalanga, demanding that their owners provide proof of a R5 million investment.

Also in June, Alfred Duma Municipality closed foreign owned shops in a “compliance campaign”. The campaign included demands that foreign business owners provide proof of a R5 million investment, according to a telephonic interview with one shopkeeper. He asked not to be named due to safety concerns. 

Despite a Pietermaritzburg High Court order that the municipality allow the shops to open, a Newzroom Afrika journalist questioned one of the applicants involved if they had invested R5 million.

Case law supports foreigners’ right to be self-employed

Nyiko Manyusa, an attorney with Lawyers for Human Rights (LHR) specialising in immigration law, said that this claim is a cynical distortion of the Immigration Act. 

The R5-million investment threshold is a requirement attached to certain business visa applications, he said. It does not apply automatically to every foreign national who operates a business in South Africa.

The right of refugees and asylum seekers to operate businesses in South Africa has been upheld by case law and the courts.

In 2012 Somali Association of South Africa took government to court over a crackdown on spaza shops in Limpopo.  

In 2014, the Supreme Court of Appeal ruled that there was “no blanket prohibition” preventing refugees and asylum seekers from engaging in self-employment. The court upheld the applicants’ ability to apply for and renew trading licences and found that Limpopo authorities’ actions in preventing them from trading on the basis of their immigration status were unlawful. Central to this judgement was affirming that the right to “seek employment” in Section 27 of the Refugees Act included self employment.

Refugees do not have to invest R5 million

Liesl Fourie, an attorney at the Nelson Mandela University (NMU) Refugee Rights Centre in Gqeberha, agreed that lawful refugees and asylum seekers do not have to invest R5 million before they can operate businesses.

“The simple reason for that is that refugee and asylum seekers’ visas allow them to work in the country. They are allowed to operate a business, they are allowed to open a business, and employ other people,” said Fourie. 

The same applies to foreign nationals holding certain special dispensation permits, such as the Zimbabwean Exemption Permit (ZEP) or Lesotho Exemption Permit (LEP), which, according to a December 2023 statement on their extension, allows holders to “work, seek employment and conduct business in the Republic of South Africa.”

Fourie added that South Africa does not operate a refugee encampment system where asylum seekers are routinely provided with accommodation and basic necessities. Their access to social assistance is also limited, leaving many dependent on employment or small businesses to support themselves.

Uncertainty over amendments to the Refugees Act

In January 2020, amendments to the Refugees Act complicated matters. These introduced additional restrictions on asylum seekers’ rights to work and study, including requirements relating to permission from Home Affairs.

Some of these amendments, which restricted access to asylum procedures based on how or when applicants entered South Africa and whether they possessed certain immigration documents, were struck down by the Constitutional Court in July. It was this judgement which precipitated violent protests in Durban and Johannesburg in October. 

However, other provisions relating to asylum seekers’ “permission to work” have remained in place. 

These have not been enforced, said Fourie. She believes that this is because they are impractical and potentially even unconstitutional – particularly given that asylum seekers have limited access to financial support while waiting for their applications to be processed. 

“How are asylum seekers supposed to support themselves, waiting for a Refugee Appeals Authority (a statutory body that hears appeals against rejected asylum applications] hearing date, if they do not work?” she asked.

Ministers do not respond

Viewfinder submitted queries to Ndabeni-Abrahams and Ntshavheni, via their respective ministries. These asked that they clarify their 2024 statements – which implied that foreign nationals must invest R5-million before being allowed to operate businesses in South Africa.

Small Business Development Ministry communication officer Luyanda Mbalana acknowledged the query and committed to respond by Monday. No response had been received by the time of publication. The Ministry in the Presidency also did not respond.

This story also appeared in Daily Maverick.

XenoBarometer tracks the anti-immigrant movement and its impact. We aim to surface underreported stories, paying close attention to potential rights abuses, emerging patterns in anti-immigrant mobilisation and failures in the government’s response. It is produced by the Southern Africa Accountability Journalism Project (SA | AJP), an initiative of the Henry Nxumalo Foundation working with Viewfinder and with the financial assistance of the European Union. It can under no circumstances be regarded as reflecting the position of the EU.

The Denis Hurley Centre (DHC) in downtown Durban has often been the last hope for desperate people: it is the only non-profit clinic of its kind offering holistic medical care to the city centre’s homeless and indigent.

But, lately, the DHC’s Dr Rishigen Viranna has been compelled to do something which he never imagined would be part of this job: turn away patients whom he believes may die as a result of not accessing the medication they desperately need.

The clinic has seen an influx of foreign-born patients in need of chronic medication after losing access to public healthcare. March and March vigilantes have been staking out public healthcare facilities and unlawfully denying access to immigrants since launching their blockades in July 2025.

This influx has coincided with a fraught time for the clinic, which says its supply of TB and HIV medication from the KwaZulu-Natal Department of Health was inexplicably suspended in December last year.

In light of the increased demand and decreased supply, the clinic reports that its expenditure for medication has increased tenfold, from R10 000 to around R100 000 per month. Still, it is not enough.

“It’s the hardest thing in the world to stand helpless in front of someone who is crying for life-saving medication,” said Leanne Banks, the DHC’s chief operating officer.

Survey findings

For this report, the DHC shared the raw data and results from a recent survey of 294 patients to the clinic over a five week period starting in July 2026. 

Of these patients, 239 were foreigners

Of the foreign nationals surveyed, 184 had tried to access a government healthcare facility in the previous year. Of these, 92% said they had been prevented from accessing the facilities, even after presenting documentation.

“At least 72% of those prevented from collecting medication had documents indicating they were legally in South Africa,” the survey findings read.

This has lent further credence to the fact that March and March supporters and other anti-immigrant groups have blocked many documented, legally resident foreign nationals from accessing health care facilities in Durban. This, despite the movement’s stated focus on protecting South African jobs and services from “undocumented” immigrants.

An interfaith refuge in Durban

Named after Catholic anti-apartheid campaigner Archbishop Denis Hurley, the DHC functions on donations from Christians, Muslims, and Jews. It prides itself on being a living example of interfaith co-operation in Durban, feeding 350 people five days a week.

It has also operated the clinic for over a decade. A portion of the DHC’s ground floor serves 1200 patients every month. Dr Viranna is assisted by a medical staff of eight and two volunteers.

Whereas immigrants used to make up a minority of the clinic’s patients (around 30 percent), Viranna says the number has more than doubled in recent months as a result of xenophobic mobilisation in Durban. 

And, it is not only foreign nationals who have been diverted to the clinic, said Viranna. South African homeless people who do not possess identity documents are equally in danger of being turned away at the gates of public hospitals and clinics for their failure to present documentation. 

Beaten and bruised

The centre is a triangular building wedged between Emmanuel Cathedral, the gold-domed Juma Masjid Mosque, and the bustling Victoria Street Market. This reporter visited there on Monday, where entrance fronts onto the cracked, litter-strewn pavements of downtown Durban.

Here Mongezi Mtolo, a former drug addict who has been clean for five years and lived on the streets for 11 years, mans the entrance. He credits the DHC for giving him a second chance in life – he is now a security guard and he helps process patients. 

Poor people in ragged clothes clutched their belongings as they queued. 

They are frightened and they are suspicious, Mtolo explained. Some had been the victims of violence.

“This is so sad. Patients sometimes come here beaten and bruised. They are here because they can’t get help anywhere else,” Mtolo said. 

Turning the sick away

Overwhelmed by the numbers of new patients, staff at the DHC have been forced to direct some to government clinics outside the city centre, where March and March supporters are less likely to be blocking access.

“It’s incredibly traumatic for the people being turned away,” Viranna said.  

“People have been chased out of their homes, lost their jobs, and now they cannot get life-saving medicine. They are anxious and depressed.”

DHC staff say they do not know why the province’s Department of Health stopped supplying it with antiretrovirals (ARVs) and TB medication. Numerous engagements with the department, aimed at reviving the supply, have failed, they said.

“We really rely on the Department of Health and look forward to working with them to overcome this. The situation we are in is sad and unfair. The court says everyone has the right to health care,” said Bridget Ward, the DHC’s incoming director.

It is not lost on the staff at DHC that the medications in such short supply in their dispensary are freely available at public health care facilities. 

“This treatment is available. It is access that is the problem. Either the police are powerless, or they choose not to stop protestors from barring patients,” said Viranna.

“Our staff go through intense mental strain. Some patients arrive beaten or stabbed. These injured patients are attended to, but the new chronic, HIV and TB patients now have to be turned away. There is a lot of anger, stress and sadness. What are people going to do?”

The Department of Health was sent a list of questions seeking clarity and comment on the survey results and the supply of medicines to DHC. They did not reply to the questions by the time of publishing.

The department was also asked how many patients were barred from accessing state hospitals, what steps it was taking to prevent this, and what the impact was on serious communicable diseases.

Last week, March and March’s portrayal of a Constitutional Court judgment as a radical change to immigration law helped fuel days of violent anti-immigrant protests in Durban, Soweto and outside the court itself.

Online, the judgment was misrepresented as granting immigrants citizenship, jobs and voting rights.

But little has been written about what the judgment actually ordered or the legal timeline leading up to it.

The ruling built on established legal principles, but also struck down provisions of the Refugees Act that created barriers to the asylum process. It reaffirmed that people cannot be denied access to asylum application procedures simply because of how or when they entered South Africa.

Origins of the case 

In 2020, amendments to the Refugees Act effectively barred anyone who enters the country unlawfully from accessing the asylum system. 

Those amendments required immigration officials to conduct “good cause” interviews with undocumented people to establish whether they had good reason for entering South Africa illegally and failing to report to a refugee reception office within five days, according to Liesel Fourie, an attorney at the Nelson Mandela University Refugee Rights Centre in Gqeberha.

“In practice (those interviews) never happened,” said Fourie.

“(Immigration officials) felt they didn’t have the necessary training on it and weren’t provided with the necessary paperwork. They were also not allowed to actually make a decision themselves, and instead had to send their interview notes to the provincial or regional head of department, who had to make a decision.”

The inefficiency of this process, coupled with officials’ reluctance to even attempt to implement it, effectively brought asylum processing at South Africa’s RROs to a standstill. Fourie said that her office “never received a single good cause decision back in all the years since the amendments were passed”.

Tens of thousands of asylum seekers were stuck with no meaningful way of applying for refugee status. 

In April 2024, the Scalabrini Centre of Cape Town, which works to protect immigrant rights in South Africa, approached the Western Cape High Court to challenge the amendments.

On 15 May 2025, the High Court found in its favour, striking those provisions down. 

It was this ruling that was finally confirmed by the Constitutional Court on 7 July 2026. 

For weeks, the Department of Home Affairs (DHA) “sat on that judgment”, said a senior staffer at Scalabrini. (Editor’s note: The staffer was interviewed on record on 5 October. Scalabrini’s board subsequently took the decision that no staff should be quoted in the news media as a safety precaution – owing to the anti-immigration movement’s tendency to dox and threaten activists. In respect of the Scalabrini board’s request, an editorial decision was taken to anonymise the staffer.)

In a letter to Home Affairs Minister Leon Schreiber on 4 September, Scalabrini and Lawyers for Human Rights called on the department to immediately reopen refugee reception offices to new applicants and stop applying the unconstitutional “good cause” requirement. The Minister did not reply.

Then, on 28 September, DHA issued a directive ordering all RROs to start processing new asylum claims with immediate effect. The suddenness of the directive caught those offices off guard and many RROs were soon inundated with hundreds of queuing migrants.

“The RROs were given no support to deal with the inevitable sudden wave of applicants, and it comes as no surprise that chaotic scenes ensued,” the Scalabrini staffer observed.

After violent anti-immigrant protests, on 9 October, the DHA revoked its own directive. It issued a statement that it would find the most appropriate way to comply with the Constitutional Court’s order.

“We are effectively back to where we were, with tens of thousands of asylum seekers not able to access the system. The difference now is that the country’s highest court has said they must have access, and unlike the DHAs directives, that order cannot be revoked,” said the Scalabrini staffer. 

Judgement was not groundbreaking

Despite the incredible ire this Constitutional Court judgement drew from the anti-immigrant movement, it actually builds on several cases that came before and achieves little that is new or controversial in South African immigration law. 

In a 2018 case called Ruta v the Minister of Home Affairs, the Constitutional Court had already affirmed that anyone wishing to apply for asylum must be allowed to do so regardless of how they entered the country, or how long it took them to apply.

Here, the court affirmed the principle of non-refoulement, enshrined in the Refugee Act, which prohibits returning people to places where they face persecution, torture or other serious harm.

Fourie said the principle protects even prospective asylum seekers: they cannot be deported until they have completed the application process and exhausted all appeals.

In December 2021, Abore v the Minister of Home Affairs and Another confirmed this part of the Ruta judgement. 

In June 2023, Ashebo v Minister of Home Affairs and Others provided further confirmation that an illegal foreigner who has expressed an intention to apply for asylum cannot be deported until they are given a fair opportunity to process that claim. 

“In this year’s Scalabrini judgement, the Concourt confirms what was said in the Ruta judgement, the Abore judgement and the Ashebo judgement. The anti-migrants have been jumping up and down saying the Scalabrini judgement is this unheralded thing but in fact the foundations were laid long ago,” Fourie said. 

What about people already stuck in detention?  

In August, the South African Police Service (SAPS) reported to Parliament that it had arrested, detained and, in some cases, deported thousands of “illegal” immigrants. This continues.

The DHA’s since-revoked directive to RROs to re-open on 28 September still did not cover asylum seekers who are currently detained or in the process of being deported. 

According to the Scalabrini staffer, this is because two Gauteng High Court judges took conflicting approaches to the Constitutional Court’s July decision.

“In Mnamo and others v Home Affairs, which was heard in August, Judge Mandelonkosi Motha ordered that the applicants [a group of undocumented people detained in Lindela Repatriation Centre] should remain in detention, and that immigration and refugee officials should instead go to Lindela to process their asylum claims,” said the Scalabrini staffer.

Of the other case he said:

“In Ered v Minister of Home Affairs and Another, which was heard in September, Judge Stuart Wilson strongly disagreed with Motha’s reasoning, and ordered that the applicant [a Lindela detainee] in his case be released with immediate effect.”

To resolve these conflicting approaches, Gauteng Judge President Aubrey Ledwaba referred the differing interpretations to a full bench court for legal certainty. The session will take place on 29 October.

Fourie said the earlier Constitutional Court judgments offer competing guidance on detention. The 2018 Ruta judgment held that detention and deportation procedures must stop when someone expresses an intention to seek asylum.

“The 2021 Abore judgement said something different. It said that the provisions in the Ruta judgement that deal with the right to be released immediately fall away, because the regulation that previously provided for this was not included in the new regulations that came into effect in January 2020,” said Fourie. 

The 2023 Ashebo judgement also moved away from the Ruta judgement. It said that people in detention who wish to apply for asylum should be provided with an opportunity to be interviewed by an immigration officer, to ascertain whether they have good cause for being in the country unlawfully. It also put a duty on the state to assist people to apply for asylum while in custody.

“It should be said that this is completely impractical, because refugee asylum applications can only be made in person at an RRO – the officers aren’t mobile. This means immigration must load everyone into a van and take them to an RRO, where they may or may not be assisted, which is problematic,” she said.

the Scalabrini staffer believes that, following the Scalabrini judgement, which did away with the good cause requirement in the Refugee Act, the procedure should automatically revert to what was outlined in the Ruta judgement.

“In other words, people should be automatically released so that they can go and apply for asylum,” he said. 

Scalabrini will join the 29 October full bench hearing as a friend of the court. 

“It is highly political,” the Scalabrini staffer conceded. 

XenoBarometer tracks the anti-immigrant movement and its impact. We aim to surface underreported stories, paying close attention to potential rights abuses, emerging patterns in anti-immigrant mobilisation and failures in the government’s response. It is produced by the Southern Africa Accountability Journalism Project (SA | AJP), an initiative of the Henry Nxumalo Foundation working with Viewfinder and with the financial assistance of the European Union. It can under no circumstances be regarded as reflecting the position of the EU.