A judgment without a door: the asylum directive and its withdrawal

Within eleven days, the Department of Home Affairs issued and withdrew an instruction that went to the centre of South Africa's asylum system. On 28 September 2026 the Department directed all Refugee Reception Offices to accept new asylum applications from people the Refugees Act had previously excluded at the door. On 9 October 2026, after protests at the Durban reception office and violence in Durban and Soweto, the Director-General withdrew it. The directive did not create any new rights. It was an attempt to comply with a judgment of the Constitutional Court, and that judgment still stands. This commentary considers what the Court decided, what the directive did, and what its withdrawal means for the rule of law.

The judgment: Scalabrini II

On 7 July 2026 the Constitutional Court gave judgment in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others [2026] ZACC 30. Majiedt J wrote for a unanimous court.¹ The Court confirmed the Western Cape High Court's declaration that sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act 130 of 1998 are unconstitutional and invalid. The High Court had also struck down related provisions of the Refugee Regulations, including the requirement in regulation 8(3) that a person show good cause for entering or staying unlawfully before being allowed to apply.²

The provisions had worked as barriers placed in front of the asylum process. They excluded people who had entered other than through a port of entry, people who had not reported to a reception office within five days, and people who had committed an offence involving fraudulent documents. Section 21(1B) required an interview with an immigration officer to establish valid reasons for not having an asylum transit visa. In each case the person could be turned away before anyone had considered whether they were a refugee at all.

The Court's central reasoning was that these provisions blocked applicants before any assessment of their claim, which is incompatible with the principle of non-refoulement in section 2 of the Refugees Act: no one may be returned to a country where they face persecution.³ It held that there was no legitimate government purpose in barring people under section 21(1B), and that the provisions gave officials discretion that was too wide and too vague. The Helen Suzman Foundation, as a friend of the court, emphasised the harm to children, ⁴ The Court itself warned against public rhetoric that could be seen as xenophobic.⁵

One detail of the order is important for what followed. The State did not ask the Court to suspend the declaration of invalidity or to give Parliament time to correct the Act.⁶ The provisions therefore fell away immediately.

A judgment does not wait for a department to be ready. It binds from the day it is given.

The directive of 28 September

For almost three months after the judgment, the reception offices did not change their practice. Scalabrini and Lawyers for Human Rights wrote to the Minister on 4 September asking him to reopen the offices to new applicants.⁷ On 28 September the Department issued a directive to the five Refugee Reception Offices. They were to receive and help anyone who reported in person intending to apply for asylum, including people who had entered unlawfully, had no visa, or had not reported within five days. Officials were not to require applicants to show good cause for their unlawful entry.⁸ The Department later described the directive as purely operational, issued without the knowledge of the Minister.⁹

The withdrawal of 9 October

The offices were quickly overwhelmed. There were disruptions at the Durban reception office on 6 October and clashes in Soweto on 8 October, and police reported vehicles set alight and looting.¹⁰ On 9 October the Director-General withdrew the directive. The Department cited the pressure on its offices, the risk to officials and serious threats to public safety and order, which it said could not have been foreseen in the court order.¹¹ The Minister said the Department had changed its position because the facts had changed, and that it now had facts showing it could not fully comply. He reportedly indicated that this evidence would be placed before the Constitutional Court.¹²

An inter-ministerial committee, chaired by Minister Kubayi, has since announced a phased online registration of intention to apply, to start by 10 November 2026. Applicants are to give biometrics and receive a receipt and an appointment. The receipt is not an asylum seeker visa under section 22, but holders are not to be arrested only for lacking a visa. ¹³ The government has also said it will seek a supervisory order and a period of suspension. Reports differ on which court will hear that application; a full bench of the Gauteng High Court sits on 29 October 2026 on related questions about detention.¹⁴

The rule-of-law question

The withdrawal raises a question that goes beyond asylum: what may the executive do when it cannot immediately comply with a court order?

The starting point is section 165(5) of the Constitution. An order of a court binds all persons and organs of state to which it applies. The directive was not the source of anyone's rights; the judgment was. Withdrawing the directive therefore did not restore the invalid provisions. As a Scalabrini staff member put it, unlike the Department's directives, the court order cannot be revoked.¹⁵ What the withdrawal did was remove the Department's own instruction on how to comply, leaving offices and applicants in the gap between what the law requires and what the Department is willing to do.

There are legitimate concerns about the State's capacity and public safety. Reception offices that cannot be operated safely help no one, including asylum seekers. But the constitutional response to such concerns is to go back to court, set out the evidence and ask for relief, not to suspend compliance by administrative decision. It is significant that the government has said it will seek such relief. Whether a court can or will suspend a declaration it has already confirmed, and that took effect without suspension, is a genuinely open question. The Court would have to weigh the State's evidence against the rights of people who are now, once again, unable to lodge applications.

There is also a question of proportionality. One commentator has noted that intimidation was reported at the Durban and Pretoria offices only, yet the directive was withdrawn at all five, including Musina, Cape Town and Gqeberha.¹⁶ A response tied to the actual risk at each office would have been easier to defend.

A familiar pattern

Scalabrini II belongs to a line of cases in which the courts have refused to let procedural barriers deny people access to the asylum process. In Scalabrini Centre of Cape Town v Minister of Home Affairs [2023] ZACC 45, the Constitutional Court struck down sections 22(12) and 22(13) of the Refugees Act, which treated an asylum application as abandoned if the visa was not renewed within a month of expiry.¹⁷ Earlier decisions, including Ruta, Abore and Ashebo, point in the same direction. The State has often defended these barriers as necessary for good administration, and the courts have consistently refused to let procedural requirements block access to the asylum process. The pattern is not one of courts versus government; it is the Constitution placing a firm limit on how far procedure may substitute for substance.

What this means now

• The judgment remains law. The struck-down provisions do not revive because the directive was withdrawn.
• Practice at the offices is in flux. Until the online registration starts and the Court rules on any application by the State, people may still be turned away in practice. Keep records of every attempt to apply.
• Detention is contested. High Court judges in Gauteng have disagreed on whether people may be detained while their claims are processed. Judge President Ledwaba has referred the conflict to a full bench, due to sit on 29 October 2026. I examine that dispute separately.¹⁸
• Get advice quickly. For anyone affected, timing and documentation matter. Specialist organisations and legal practitioners can advise on individual situations.

Conclusion

The directive of 28 September was an imperfect attempt to do what the Constitutional Court required. Its withdrawal, however understandable as a response to violence, leaves the State out of step with a binding judgment. The legitimate route is the one the government has now indicated: return to court, put the evidence on record and ask for a structured, supervised path to compliance. What matters most is that the period of non-compliance is short, and that the State's difficulties are resolved through the courts rather than at the gates of the reception offices.