When humanitarianism meets state failure: Are South Africans being asked to carry the cost of a broken asylum system?

Sisipho Lobese | 8 October 2026

---

Introduction

South Africa is currently a nation gripped by anger. That anger, however, should not be reflexively reduced to xenophobia or afro- phobia nor should every citizen who voices concern about immigration be cast to be morally unfit to take part in public deliberation. The recent protests against undocumented immigration points to a deep and widespread dissatisfaction with the state's stewardship of its border control resulting in public frustration concerning, employment, and public resources and the migration policy. A note on rigor, the claim that these grievances are legitimate is distinct from the claim that every expression of them is. Ms Jacinta Ngobese-Zuma, who leads March and March, has voiced this grievance with particular intensity, maintaining that South citizens should not be asked to accept what she characterises as the preferential treatment of foreign nationals while destitute and homeless South Africans go unsupported.¹

Have South African Citizens Become an Afterthought?

There is something deeply unsettling when citizens begin to believe that their government is more responsive to the immediate needs of people crossing the border than to citizens who have lived for many years without adequate housing, employment, policing or public services. That perception may sometimes be exaggerated, of course. Some claims made in the immigration debate are undoubtedly unsupported or overstated. But dismissing the messenger does not answer the underlying constitutional question:

The Constitution itself makes citizenship legally significant, section 21(3) provides that “every citizen” has the right to enter, remain in and reside in the Republic.²

Citizenship therefore cannot simply disappear from the constitutional conversation because South Africa has international and humanitarian obligations towards non-citizens. This does not mean that non-citizens possess no constitutional rights, the Bill of Rights protects many rights belonging to “everyone”, while particular rights are expressly reserved for citizens.³

The constitutional question is therefore not whether foreigners have rights, they plainly do. The harder question is how the state should reconcile those rights with its obligations to its citizens and its responsibility to maintain an effective immigration system.

But What Exactly is Asylum?

South Africa enacted the Refugees Act 130 of 1998 to give domestic effect to international refugee law and to regulate the reception and determination of asylum claims.⁴ The public debate becomes particularly dangerous when the terms foreign national, undocumented migrant, asylum seeker and refugee are treated as though they mean the same thing, for they do not. An asylum seeker is a person seeking international protection whose claim has not yet been finally determined. An undocumented immigrant is a person who enters or stays in a country without official legal authorization. A refugee is a person who falls within the applicable legal definition and is recognised as such through the refugee protection framework.⁵

Asylum law exists, because deciding who deserves protection cannot simply be left to public opinion. South Africa therefore created the Refugees Act 130 of 1998 to give practical effect to its constitutional and international obligations and to provide a lawful process through which people fleeing persecution or serious harm can have their claims heard and decided. The issue, then, is not simply whether someone entered the country lawfully, but whether the State has given them a fair opportunity to explain why they are seeking protection.⁶

Asylum is certainly not a reward for entering South Africa, rather it is a protective legal mechanism through which the state determines whether a person is entitled to protection from return to a place where they face persecution or other prohibited harm. The principle of non-refoulement is central to this framework, while Section 2 of the Refugees Act prohibits the expulsion or return of a refugee to a country where they would face the relevant forms of persecution or threat contemplated by the Act.⁷ This principle deserves protection however so does the integrity of the system administering it.

The Ashebo Case: Is the Supreme Court of the land Beyond Criticism?

The Ashebo case has come to serve as an emblematic reference point in this debate. In Ashebo v Minister of Home Affairs and Others, an Ethiopian national entered South Africa unlawfully from Zimbabwe and was subsequently arrested for contravening the Immigration Act. He informed authorities that he wished to seek asylum and claimed that he had entered South Africa because he feared persecution.⁸ The Constitutional Court held that he could not simply be deported without being afforded the statutory opportunity to establish the relevant grounds for his asylum claim. The Court ordered that he not be deported until he had had the opportunity contemplated by the Refugees Act and, if the requisite basis was established, until his asylum application had been determined.⁹

However, it is here that I depart from the Court’s interpretation. My concern is not with the protection afforded to persons who genuinely seek asylum, nor is with the State’s international and constitutional obligations towards refugees and asylum seekers. Rather, I question the extent to which an individual who has entered or remains in the Republic unlawfully may rely, after the fact, upon an asserted intention to seek asylum to render the illegality of their presence legally secondary.¹⁰

There is an important distinction between recognising the right to seek asylum and treating an unsubstantiated claim of an intention to seek asylum as sufficient to displace the ordinary legal consequences of unlawful entry or presence. The latter approach, if applied too broadly, risks creating a troubling jurisprudential principle: that the unlawfulness of an individual’s presence is not of primary legal relevance merely because that individual subsequently expresses an intention to seek asylum. That proposition, in my respectful view, requires considerably more careful qualification.¹¹

I raise this not to undermine the protection of asylum seekers or to contribute to the increasingly polarised public discourse surrounding migration. Rather, it is precisely because asylum protection is an important legal institution that its boundaries and interaction with immigration control must be carefully maintained. The State is required to protect those entitled to international protection, but it is equally entitled in fact obliged to administer its immigration regime in accordance with law.¹²

The question, therefore, is not whether a person who is unlawfully present may ever seek asylum. Clearly, that question cannot be answered in the negative. The more difficult question is whether the mere assertion of an intention to seek asylum should, without more, eclipse the legal significance of the person’s unlawful status. It is this accommodation that warrants scrutiny.¹³

My concern is ultimately one of legal principle. If the initial illegality of entry or presence is treated as inherently secondary whenever an asylum claim is subsequently asserted, the law risks conflating the existence of a right to approach the asylum system with an automatic immunity from the consequences of immigration unlawfulness. Those are not necessarily the same proposition, and the distinction between them deserves to remain visible in our jurisprudence. The Constitutional Court is the highest court in the land. It is not, however, beyond criticism. Indeed, constitutional democracy would be impoverished if citizens and scholars were expected to treat judicial reasoning as politically untouchable simply because it emanated from the apex court.¹⁴

A Can of Worms: What Happens When Irregular Entry Meets Asylum?

My concern lies less with the protection of bona fide refugees than with the institutional incentives that a weak immigration regime generates. Where the state cannot reliably tell a genuine refugee from an economic migrant, an undocumented person, an abuser of the asylum process, or someone who poses a security threat, the difficulty is no longer one of migration as such. It is a deficit of state capacity. The figures suggest this is more than a theoretical worry. In 2026, Home Affairs informed Parliament that the Refugee Appeals Authority was carrying a backlog of roughly 161,000 cases. This comprised about 71,000 active appeals and a far larger body of about 90,000 inactive files in which the appellants' whereabouts were unknown, that is rather highly concerning.¹⁵

The Law Has Now Moved Beyond Ashebo

In Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, the Constitutional Court confirmed the invalidity of provisions of the Refugees Act that created barriers to asylum applications based on irregular entry, late reporting and related procedural requirements.¹⁶

The difficulty with the Scalabrini case is not the principle it vindicates but the institutional context into which it is delivered. The Constitutional Court unanimously confirmed the invalidity of provisions requiring asylum seekers to show "good cause" for unlawful entry or presence before applying for asylum, and in doing so it affirmed that procedural non-compliance cannot bar an application whose merits have not been considered. As a statement of constitutional principle, but a principle is only as sound as the machinery that implements it, and the judgment presupposes an administrative apparatus capable of assessing claims promptly, credibly and at scale, and South Africa does not presently have one.¹⁷ The real failure, therefore, is not that South Africa has asylum law. The failure is that the State has not built an asylum and immigration administration capable of commanding public confidence.

Is The Government Playing a Dangerous Game with Public Trust?

The real danger may therefore be loss of public trust. When citizens believe that the government cannot control its borders, cannot efficiently process asylum applications, cannot distinguish legitimate claims from illegitimate ones and cannot effectively remove persons whose claims have failed, resentment inevitably becomes more difficult to contain. The government's own communication recognises the tension. Following Scalabrini, Home Affairs stated that it would respect the Constitutional Court's judgment while remaining committed to a “secure, lawful and well-managed immigration system”. Home Affairs says new asylum rules could overwhelm the system as irregular entrants must be allowed to lodge claims, while officials assess whether applications are genuine.¹⁸

Home Affairs says new asylum rules could overwhelm the system as irregular entrants must be allowed to lodge claims, while the officials assess if the applications are genuine. The Deputy Director General for Operations at Home Affairs, Thulani Mavuso, told 702 that the department could now face a significant increase in the number of people seeking to lodge asylum applications. “We're going to be overwhelmed with the numbers,” Thulani Mavuso said.¹⁹

Conclusion

What South Africa is confronting is therefore larger than a single Constitutional Court judgment. It is at once a political, legal and humanitarian crisis. Legally, the Constitutional Court has drawn a line around what the State may do when dealing with people who claim protection as asylum seekers. With local government elections approaching on 4 November 2026²⁰, immigration is unlikely to remain outside political debate. Will Parliament revisit the Refugees Act,²¹ Immigration Act²² and related policies? Will political parties demand stricter immigration controls? And will the government address the legitimate frustrations of South Africans before those frustrations become something more difficult to contain? What happens next will reveal not only how South Africa understands asylum, but how seriously it takes constitutional government itself.

---

Footnotes

---

¹ SABC News, “South African law should be respected by all: Ngobese-Zuma” (10 September 2026)
² The Constitution of the republic of south africa 1996,
³ Ibid
⁴ Refugees Act 130 of 1998, long title and preamble. The Act expressly gives effect to South Africa's international refugee obligations and regulates the reception and recognition of asylum seekers and refugees
⁵ Ibid ⁶ Ibid ⁷ Ibid
⁸ Abore v Minister of Home Affairs and Another (CCT 115/21) [2021] ZACC 50; 2022 (4) BCLR 387 (CC); 2022 (2) SA 321 (CC) (30 December 2021)
⁹ Ibid ¹⁰ Ibid ¹¹ Ibid ¹² Ibid ¹³ Ibid ¹⁴ Ibid
¹⁵ https://www.ewn.co.za/2026/05/28/asylum-appeal-backlog-hits-160k-due-to-decline-in-public-services-say s-human-rights-lawyer.
¹⁶ Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others,
¹⁷ Ibid
¹⁸ Le Roux, K. (2026) "New asylum rules to overwhelm Home Affairs, official warns," Eyewitness News, 6 October. Available at: https://www.ewn.co.za/2026/10/06/new-asylum-rules-to-overwhelm-home-affairs-official-warns (Accessed: 7 October 2026).
¹⁹ Ibid
²⁰ https://www.gov.za/news/media-statements/inter-ministerial-committee-satisfied-preparations-2026-local-government
²¹ Refugees Act 130 of 1998. Government Gazette No 19544, 2 December 1998. The Act commenced on 1 April 2000 and has subsequently been amended.
²² Immigration Act 13 of 2002. Government Gazette No 23478, 31 May 2002.

---

Back to Articles