Liberty at the threshold: detention, asylum and the Gauteng full bench

Few questions in South African migration law are more fundamental than this: when a foreign national in immigration detention says that he wants to apply for asylum, may the State continue to hold him? Two judges of the Gauteng High Court gave opposite answers within weeks of each other in 2026. Judge President Aubrey Ledwaba has referred the conflict to a full bench, due to sit on 29 October 2026. This commentary sets out the two positions, the law that both judges had to apply, and the questions the full bench must resolve.

The legal background

Two statutes meet at this point. The Immigration Act 13 of 2002 allows the arrest and detention of an illegal foreigner for the purpose of deportation under section 34. The Refugees Act 130 of 1998 protects any person who claims asylum, and section 2 contains the principle of non-refoulement: no one may be returned to a country where they face persecution or serious harm.

For years the courts have held that the Refugees Act governs once a person signals an intention to seek asylum. In Bula v Minister of Home Affairs 2012 (4) SA 560 (SCA), the Supreme Court of Appeal held that a detainee who indicates an intention to apply for asylum is entitled to be released with a permit to approach a Refugee Reception Office.¹ In Ruta v Minister of Home Affairs [2018] ZACC 52, the Constitutional Court held that delay in applying does not disqualify a claim and that the Refugees Act, not the Immigration Act, governs asylum.² Abore v Minister of Home Affairs [2021] ZACC 50 confirmed that the 2017 amendments to the Refugees Act did not remove the shield of non-refoulement.³

Then came Ashebo v Minister of Home Affairs [2023] ZACC 16. Under the amended Act and its Regulations, a person who had entered unlawfully had to show "good cause" before being allowed to apply. The Constitutional Court held that merely expressing an intention to apply did not by itself entitle a detained illegal foreigner to release, although detention could become unlawful if the Department did not take the good-cause step within a reasonable time.⁴

What changed in July 2026

On 7 July 2026, in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others [2026] ZACC 30, the Constitutional Court confirmed that several of the Refugees Act's gatekeeping provisions are invalid, including those excluding people who entered other than through a port of entry or did not report within five days, and section 21(1B). The related regulations, including the good-cause requirement in regulation 8(3), had already been set aside.⁵ The good-cause step on which Ashebo depended therefore no longer exists. The question is what follows for people already in detention.

Remove the good-cause gate, and the legal basis for holding someone at the gate goes with it. Or does it?

Mnamo: detention pending processing

In Mnamo and Others v Minister of Home Affairs and Others [2026] ZAGPJHC 948, decided on 25 August 2026, Motha J dealt with applications by detainees at the Lindela Repatriation Centre, none of whom had been interviewed at a reception office. As reported, he held that releasing them would be unwise because of the risk of immediate re-arrest, criticised the cycle of "catch and release", and noted that the lower courts had been left in a difficult position after the Constitutional Court's judgment. He ordered that they not be deported, that they remain in detention, and that the Department process their applications, including by bringing officials to Lindela or taking the applicants to the nearest reception office.⁶ On the account given in a later judgment, Mnamo relied on the reasoning in Ashebo.⁷

Ered: release once intention is expressed

Wilson J took the opposite view in Ered v Minister of Home Affairs and Another [2026] ZAGPJHC 970. He decided the matter on 14 July 2026, before Mnamo, and gave his reasons on 2 September 2026. Mr Ered, an Ethiopian national, said that he had told the arresting officers he wanted asylum. After serving a sentence for an immigration offence, he was detained at Lindela under section 34. Wilson J reasoned that the good-cause regime was the basis on which Ashebo had allowed detention pending an interview, and that the Constitutional Court's July judgment had removed that basis. Detention is therefore unlawful once an intention to apply for asylum has been expressed, and Mr Ered was entitled to his release.⁸ He described the reliance on Ashebo in Mnamo as misconceived, and observed that courts must apply the Constitution and the law rather than public sentiment.⁹

The real point of disagreement

The disagreement is narrower than it first appears. Mnamo barred deportation while the claims were processed; Ered ordered release, which made the question of deportation moot. Neither judgment suggests that a person who has asked for asylum may be removed before the claim is considered. The difference lies in what the State may do in the meantime.

The strongest argument for Ered is structural. Under section 12 of the Constitution, no one may be deprived of freedom arbitrarily or without just cause, and detention under section 34 exists for the purpose of deportation. If deportation is legally barred while an asylum claim is pending, and the only obstacle the courts had accepted to the claim being lodged, the good-cause step, has been removed, then the purpose that justifies detention has fallen away.

The strongest argument for Mnamo is practical, and it also has a textual hook. The Constitutional Court in Scalabrini described Ashebo as distinguishable, noting that it concerned detention at the first phase of the process, rather than overruling it.¹⁰ On that reading, Ashebo's acceptance of short detention while access to the process is arranged may survive, provided the State acts within a reasonable time. That is likely to be the central question for the full bench: whether Scalabrini superseded Ashebo on detention, or left a narrow space for temporary detention linked to processing.

The referral and what it covers

The Judge President's referral identifies two questions: whether continued detention is lawful once a person expresses an intention to apply for asylum, and whether a court may order continued detention while the Department arranges access to the asylum process. Pending the hearing, affected applications in the Division have been held back, The notice was brought to the attention of bodies including Lawyers for Human Rights, the Legal Resources Centre, the Scalabrini Centre and the UNHCR, and interested parties were invited to apply for admission as friends of the court.¹¹

The hearing takes place against wider developments. The government has announced an online system for registering an intention to apply, due to start by 10 November 2026. Its receipt is not an asylum seeker visa, but holders are not to be arrested or detained solely for lacking a visa, and assisted registration is to be available for people in detention.¹² The government has also said it will seek a supervisory order from the courts, although reports differ on which court will hear that application.¹³ Parliament has, separately, passed the Immigration Amendment Act 11 of 2025, which rewrites the judicial oversight of section 34 detention, but it comes into force only on a date to be proclaimed.¹⁴

What the full bench must decide

• Whether Ashebo survives on detention. The answer will turn on how the full bench reads the Constitutional Court's description of it in Scalabrini.
• Whether processing is a lawful purpose for detention. Section 34 detention is for deportation. Detention to enable an asylum claim to be lodged would need a lawful basis of its own.
• What a reasonable time means. If short detention is permitted, the court will need to set limits and require judicial oversight.
• How the new registration system fits. A receipt that protects against arrest for lacking a visa may make continued detention harder to justify.

Conclusion

The conflict between Mnamo and Ered is the inevitable consequence of a system in transition. The Constitutional Court removed the barriers that kept people out of the asylum process, but the administrative machinery to receive them has not yet caught up. In that gap, the courts are being asked to decide whether liberty must give way to the State's capacity. The constitutional answer has generally been that it must not, at least not for long and not without judicial control. Whatever the full bench decides, its judgment should give the clarity that both detainees and officials currently lack, and it is likely to be only a step towards a final answer from the Constitutional Court.