On 7 July 2026, the Constitutional Court handed down judgment in Scalabrini Centre and others v Minister of Home Affairs and others [2026] ZACC 30, unanimously confirming the unconstitutionality of provisions of the Refugees Act 130 of 1998 and the Refugees Regulations that required asylum seekers to show "good cause" for illegal entry or presence in South Africa before they could apply for asylum.
The impugned provisions
The provisions in question had two effects.
First, asylum seekers who could not show "good cause" for their illegal entry or presence in South Africa would be declared illegal immigrants and face deportation, without their asylum claim being considered on its merits.
Second, asylum seekers who could not present themselves to a Refugee Reception Office within a narrow five-day time frame were required to show good cause before their applications could be processed.
In practice, this meant that a person fleeing war, political repression or torture could be returned to their country of origin purely on procedural grounds, without the substance of their asylum claim ever being examined.
Non-refoulement
The Court's reasoning turned in part on the principle of non-refoulement, which prohibits the return of a refugee to a country where they face persecution or serious harm. Non-refoulement is recognised as part of customary international law and is expressly guaranteed by the Refugees Act itself.
Provisions of domestic legislation that permit deportation on procedural grounds, without any consideration of the substantive asylum claim, cannot be reconciled with that guarantee.
Children as individuals in their own right
The Helen Suzman Foundation, appearing as amicus curiae, made focussed submissions on the impact of the impugned provisions on children. Two points sat at the centre of those submissions.
The first was that children should be treated as individuals in their own right, with their own claims to protection, not merely as extensions of their parents' applications. The second was that the best interests of the child, protected under section 28(2) of the Constitution, require independent consideration in every decision affecting a child.
Under the impugned provisions, neither principle was upheld. Children could be visited with the sins of their parents and returned to countries where they would face gross human rights abuses.
The Court's findings
Writing for the unanimous Court, Justice Majiedt endorsed the Helen Suzman Foundation's submissions and the findings of the High Court below. The Court held that the impugned provisions unjustifiably limit the constitutional rights of asylum seekers, and in particular the rights of children whose interests do not receive consideration at all.
What this means
The judgment resets the framework for how asylum applications must be assessed in South Africa.
Asylum seekers cannot be deported without their claim being considered on its merits. Children affected by asylum decisions must be treated as individuals, with their best interests protected. The principle of non-refoulement cannot be defeated by procedural requirements in domestic legislation.
For NGOs, humanitarian organisations, government departments and legal practitioners working in this space, the judgment will influence how legislation affecting migrants, refugees and children is drafted, interpreted and applied for years to come.
The team
The Helen Suzman Foundation was represented by Deneys, acting pro bono, and by Advocate Irene De Vos.
The Deneys team was led by Jason Whyte and Chuma Bubu.
Scalabrini Centre and others v Minister of Home Affairs and others [2026] ZACC 30.
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