Some sections of Refugee Act declared unconstitutional
JOHANNESBURG - The Western Cape High Court has ruled that certain provisions of the Refugees Act are unconstitutional and invalid.
This decision comes after the Scalibrini Centre obtained an interdict preventing the Home Affairs Department from deporting foreign nationals intending to apply for asylum.
The organisation argues their deportation without taking their asylum applications into account is unconstitutional.
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Next Stay Close ✕ Ntshavheni made the comments as the EFF announced that it had filed an urgent application in the Western Cape High Court on Thursday to interdict Godongwana from increasing the fuel levy by 16 cents and diesel by 15 cents. Godongwana had announced the proposed fuel levy when he tabled the budget earlier this month after he scrapped the VAT increased amid a court case that was instituted by the EFF and the DA as well as negotiations between the ANC and smaller parties. In a statement, the EFF said it took the action after repeated efforts to caution and appeal to Godongwana, to consider the impact of the increase in the fuel levy on the poor and working class when the cost of living was deepening. 'We also reminded him that that, just like the VAT increase, raising the fuel levy without introducing a proper Money Bill is unlawful and undermines parliamentary oversight." The red berets had also written to National Assembly Speaker Thoko Didiza and finance standing committee chairperson Joe Maswanganyi, warning against adopting the 2025 fiscal framework and revenue proposals that included the fuel levy as doing so would place the entire budget process in jeopardy. 'This matter is urgent not just because of its legal implications, but because the fuel levy directly affects the price of transport, food and other essentials. Any increase will hit the poorest the hardest,' said the EFF. Meanwhile, the Cabinet has affirmed its support for the 2025 national budget that was tabled by Godongwana on May 21. Ntshavheni said the budget detailed key spending priorities over the next three years within the country's fiscal envelope. 'The national budget has demonstrated our commitment to fiscal discipline. We have shown that we are steering the economy in the right direction that looks after the most vulnerable in our society, while investing in economic activities through investment of R1 trillion towards infrastructure over the coming three years.' She also said the pro-poor budget meant that every 61 cents of consolidated non-interest expenditure funds will be spent on free basic services like electricity, water, education, healthcare, affordable houses and social grants for the needy. Asked whether all the Government of National Unity parties will vote in favor of the budget, Ntshavheni said they expected that to happen, but the parties have to be asked individually. 'As I have indicated, in all the times that we have at the Minister of Finance has gone to present the budget, they have always been in agreement in Cabinet saying, this is the budget we are going to support, despite its weaknesses,' she added. Ntshavheni also said the Cabinet welcomed the reset of strategic relationships between South Africa and the United States during President Cyril Ramaphosa's working visit to the US at the invitation of President Donald Trump. She said the South African and US teams will finalise the details of the trade deal the two countries would clinch. 'The objectives that the South Africa team had set for the trip have been met.' Ntshavheni also said the Cabinet looked forward to the continued participation of the US administration in the G20 summit, including the possible attendance of Trump to the G20 Leaders Summit in South Africa later this year. Highlighting some of the things featured in the trade deal, Ntshavheni said they still have to discuss the tariffs, including the non-tariff barriers.
Daily Maverick
21-05-2025
- Daily Maverick
Home Affairs sent back to drawing board on Refugees Act after legal setback
The Department of Home Affairs has been forced to reconsider its approach to amending the Refugees Act after legal advisers rejected its proposed changes to controversial sections that had been ruled unconstitutional. The Department of Home Affairs (DHA) must go back to the drawing board to align the Refugees Act with the Constitution, following advice against its proposed approach to sections 22(12) and 22(13) of the legislation. This emerged during a meeting in Parliament of the Portfolio Committee on Home Affairs on Tuesday, at which Home Affairs Minister Dr Leon Schreiber and other DHA officials updated the committee on progress in amending sections of the legislation that courts had ruled were constitutionally deficient. In 2023, the Scalabrini Centre took the DHA to court over amendments made to the Refugees Act in 2020, specifically the introduction of sections 22(12) and 22(13). These sections provided for the 'automatic abandonment' of asylum applications if an asylum seeker or refugee failed to renew their permit within one month of its expiry. In practice, this meant that if an asylum seeker did not renew their visa, the DHA could presume they no longer wished to seek refugee status or apply for asylum, and could be subject to deportation or required to leave South Africa. Scalabrini brought the case before the Western Cape High Court, arguing that the provisions infringed constitutional rights, including the rights to life, dignity, and freedom and security of the person. The organisation cited the practical and systemic challenges that applicants face at the DHA when attempting to renew their permits. Earlier this month, the court declared the provisions invalid and unconstitutional. Following the judgment, the DHA consulted the Refugee Appeals Authority and the Standing Committee for Refugee Affairs. Both bodies supported the subsections declared constitutionally invalid, recommending their retention but proposing that the period for renewing an expired visa be extended from one month to 180 days, in line with the Promotion of Administrative Justice Act. However, the Office of the Chief State Law Adviser (OCSLA), which provides legal counsel to the executive and all government departments, declined to issue a preliminary certificate for the draft Bill. It said the DHA's approach to the judgment and its attempt to amend the legislation failed to address the fundamental reasons that sections 22(12) and 22(13) were declared invalid, which were: The provisions were arbitrary, as their introduction meant asylum seekers could be deported not solely on the merits of their claims but due to external circumstances. The provisions did not account for external factors that might prevent the renewal of asylum visas, such as the location of the nearest Refugee Reception Office (RRO), the length of queues at RROs, or the workload within these offices. The DHA has concluded that any amendments to the Act will need to be addressed through a supplementary white paper at a later stage. DHA pivots on legal challenge approach The DHA's next attempt at amending the Act is likely to comply with constitutional requirements, if Schreiber's address to the portfolio committee is any indication. Schreiber noted that Home Affairs was among the most litigated departments in government, if not the most, and that this was something the DHA aimed to change. He stated that the department no longer viewed litigation as something that must always be opposed at any cost, adding: 'We are looking at cases in a much more merit-based way, considering whether there are prospects of success and certainly not making decisions to oppose matters for the sake of it.' Discussing the department's approach to legal challenges, Schreiber said the DHA's decisions were always anchored in legal advice, constitutionality and the requirements of the law. 'We have a high mountain to climb in terms of re-establishing the rule of law in this space of Home Affairs — whether it is civics, immigration or the asylum management system — and we cannot do that unless we ourselves are leading by example,' said Schreiber. He emphasised that ensuring the DHA's operations and functions aligned with the Constitution was not merely about improving the department's image, but also about reducing costs. 'The contingent liability that comes from legal exposure, as well as the day-to-day cost of spending so much money on legal cases, is in and of itself, in the current budget environment, a very clear reason for us to focus on this area and make sure we reduce the burden of legal cases on this department,' he said. DM
