Yasmin Bilal
Justice and Constitutional Development Minister Mmamoloko Kubayi has moved to clear up confusion around the Constitutional Court’s recent asylum ruling.
She was speaking today after an urgent meeting of the Inter-Ministerial Committee on Migration, which was convened following a surge in people arriving at refugee reception offices.
“We understand the concerns of citizens when they wake up to long queues outside Home Affairs offices, and yes, we confirm that all refugee offices were overwhelmed by the numbers of those coming for applications,” Kubayi said.
The Constitutional Court ruled in July in a case involving the Scalabrini Centre of Cape Town and the Minister of Home Affairs.
It found certain provisions of the Refugees Act unconstitutional because they had prevented some people from accessing the asylum system on procedural grounds.
These included entering South Africa irregularly, not having an asylum transit visa or failing to report to a refugee reception office within the required period.
Kubayi said the judgment did not automatically change anyone’s immigration status.
“The judgment does not grant refugee status or permanent residence automatically to anyone who enters South Africa, nor does it legalise unlawful migration,” she said.
“It simply requires that individuals claiming asylum be allowed access to the asylum determination process so that their claims can be properly assessed in terms of the law.”
She said fraudulent, abusive and unfounded applications would still be rejected, while applications that do not meet the requirements of the Refugees Act would continue to be dealt with through the established legal process.
Kubayi rejected claims circulating on social media that the judgment had created new rights for asylum seekers.
“The decision of the Constitutional Court does not confer new rights to asylum seekers as many in the social media circles falsely claim,” she said.
Applicants must still go through the formal refugee status determination process, where their claims will be assessed against domestic and international legal requirements.
Kubayi said government also retained its authority to enforce the Immigration Act.
“Those found to be abusing the asylum process or failing to meet the legal definition of a refugee will continue to face lawful deportation once due process has been completed,” she said.
She also clarified that refugees do not have voting rights in South Africa.
Kubayi rejected claims that Home Affairs offices would no longer be able to serve South Africans because of the number of asylum applicants.
“There are only five (5) Refugees centres in the country,” she said.
Following the court ruling, refugee reception offices were directed to receive and process applications from people indicating that they intended to seek asylum. This includes people who may have entered South Africa irregularly or previously could not access the asylum system because of procedural requirements.
Reception offices can no longer refuse access to the asylum process based on quotas or administrative restrictions. They also cannot refuse an application because certain documents are missing before the application has been lodged.
Kubayi acknowledged the pressure created by the implementation of the judgment, saying refugee offices had been overwhelmed by the number of people seeking to apply.
Government is working with Home Affairs, the Border Management Authority, law enforcement agencies and other departments on its response.
The measures include increasing processing capacity, strengthening identity verification and biometric screening, speeding up the adjudication of asylum applications and improving information sharing between migration, security and law enforcement agencies.
Efforts to identify and act against abuse and fraud in the asylum system will also be intensified.
“We further reiterate that abuse of our systems will not be tolerated by the State,” Kubayi said.
The IMC will recommend that President Cyril Ramaphosa extend the Special Investigating Unit’s proclamation to cover all refugee centres. Kubayi said this would help address the fraudulent issuing of asylum status.
The government’s legal team is also examining various court judgments on migration and assessing their implications and how they should be implemented.
This includes directives issued by the Gauteng Judge President after conflicting judgments from different divisions.
The committee is also reviewing migration legislation and policies, including the laws governing refugee status, as part of broader efforts to improve the management of migration.
Kubayi said Cabinet had also approved a plan to strengthen border infrastructure, with implementation to take place in phases.
The government is working with provinces and municipalities on the issue of hijacked and abandoned buildings, with the Department of Cooperative Governance and Traditional Affairs leading that work.
The Transport Department is also dealing with the registration of foreign nationals through the traffic registration number system. Kubayi said the department had gazetted measures relating to the system.
Another planned change involves the location of refugee reception offices.
Kubayi said government planned to move the centres from inland areas to border areas from December. The intention is for people whose asylum applications are rejected to be turned back at ports of entry, while those whose applications are approved can proceed into the country.
The IMC said its five-point migration plan remains unchanged.
The plan includes stronger border management and preventing illegal border crossings, as well as targeting criminal syndicates involved in human smuggling, trafficking and document fraud.
Government also wants to improve migration management and documentation systems.
It plans to speed up the deportation of people who have exhausted their legal remedies and do not qualify to remain in South Africa.
The plan further includes promoting social cohesion and lawful migration.
Kubayi said the committee’s work would continue across immediate, medium and long-term priorities.
She said the government would continue working towards the objectives set for the IMC rather than treating migration as a short-term issue.
She also warned against misinformation and disinformation around migration.
False information, she said, could create panic, increase social tensions and undermine confidence in government institutions.
“We remain available to clarify information to anyone or organisation where there is confusion or a need,” she said.
Operation Dudula leadership had requested an engagement with the IMC, and Kubayi confirmed that a meeting was scheduled for today.
She urged South Africans to work with government rather than against state institutions.
“If we work in silos, against each other as the State and the citizens we weaken ourself where it can be easy for the enemy of the republic to penetrate and destroy our country,” she said.
Kubayi also warned people against deliberately using the asylum system when they do not qualify.
“We also issue a stern warning that anyone who falsely presents herself or himself at our refugees centre knowing very well that they don’t qualify or meet the requirements for seeking asylum status will face consequences,” she said.
She said such conduct could prevent people who genuinely require asylum from accessing the system.
Kubayi urged South Africans to avoid hostility, violence, vigilantism and discrimination when dealing with migration-related concerns.
She said actions taken with good intentions could have unintended and damaging consequences.
Kubayi also referred to the recent visit by the African Commission on Human and Peoples’ Rights.
She said the commission had recognised South Africa’s commitment to constitutional democracy and human rights, as well as its constitutional and legislative framework protecting human and peoples’ rights under the African Charter.
Kubayi said the commission had rejected suggestions that South Africa was inherently xenophobic or Afrophobic, noting that other countries had experienced similar incidents.
She linked the government’s approach to migration to the country’s constitutional order and the 30th anniversary of the Constitution.
“South Africa is a nation governed by the rule of law,” she said.
“Constitutional Court judgments are binding on all organs of state, and Government will continue to implement such judgments responsibly while protecting national interest, maintaining public order, strengthening border security and ensuring that migration is managed in a fair, lawful and orderly manner.”
Kubayi said South Africa remained home to its citizens and that government had a responsibility to protect the interests of South Africans while meeting its constitutional and international obligations.