Authored By: Nancy Mangenyu
Glossary of Key Terms
Administrative Justice
The principle that decisions taken by public authorities must be lawful, reasonable, and procedurally fair.
Asylum Seeker
A person who has applied for recognition as a refugee and is awaiting a final determination of their claim.
Constitutional Supremacy
The doctrine that the Constitution is the highest law of the land, and all law and conduct must be consistent with it.
Customary International Law
Rules of international law derived from consistent state practice, accompanied by a belief that such practice is legally obligatory.
Deportation
The formal removal of a non-citizen from a country, typically following a legal or administrative process.
Domestic Incorporation
The process through which international legal obligations are integrated into a country’s municipal legal system, including through legislation such as the Refugees Act 130 of 1998.
Immigration Detention
The administrative detention of non-citizens for purposes related to immigration control, such as verification of status or pending deportation.
Irregular Migration
The movement of persons outside the legal or regulatory frameworks governing entry, stay, or employment in a country.
Judicial Review
The power of courts to examine the legality and constitutionality of actions or decisions taken by public authorities.
Non-Refoulement
A principle of international law prohibiting the return of any person to a country where they may face persecution, torture, or serious harm.
Protection Obligations
Legal duties imposed on states under international and domestic law to safeguard individuals, particularly refugees and asylum seekers, from harm.
Introduction
A tension lies at the crossroads of national security and global morality, and South Africa occupies a complex position in international migration governance; its right as a sovereign state to guard its borders versus its duty to protect the persecuted as bound by international and domestic legal obligations to protect refugees and asylum seekers. Central to this tension, as international migration reaches unprecedented levels, is the principle of non-refoulement, a cornerstone of international refugee law prohibiting the return of refugees to territories where they face persecution, harm, or threats to their life and freedom. This principle increasingly clashes with the exercise of state sovereignty to regulate its territory and manage its migration flow.
South Africa is bound by a rigorous framework of international treaties and domestic laws that prioritize the sanctity of human life and incorporated into its law are instruments such as the Refugees Act, reinforced by constitutional protections, and non-refoulement imposes clear legal constraints on state action.[1] However, in practice, the enforcement of this principle is often complicated by political, administrative, and socio-economic pressures, particularly in the context of increasingly polarized public debates surrounding migration. Measures aimed at strengthening border control, managing irregular migration, and preserving national security frequently come into friction with the state’s protection obligations. This raises a critical question: Is South Africa’s sovereignty undermining its commitment to non-refoulement and is it being used as a legal shield for non-compliance or does the tension lie in administrative failure rather than legal design?
This analysis explores the friction between these two pillars and argues that while South Africa possesses a robust legal framework supporting non-refoulement, gaps in administrative practice and policy execution have resulted in a pattern of partial compliance. Through an analysis of legislative provisions, judicial interpretation, and practical enforcement challenges, this research paper examines how the balance between sovereignty and protection is negotiated and often contested within South African migration law in an era of heightened migration anxiety.
International Obligations
South Africa’s migration laws are shaped by both international obligations and national legal instruments. At the international level, the principle of non-refoulement is codified in Article 33(1) of the 1951 Refugee Convention which states that:
No Contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.[2]
Though Article 33(2)[3] allows exceptions for refugees who are serious threats to national security or have committed particularly serious crimes, the principle in Article 33 (1)[4] has attained the status of customary international law, and many scholars argue it is a jus cogens norm, meaning no derogation is permitted. Article 33[5] remains a cornerstone of international refugee protection, balancing the safety of refugees with the security concerns of host States and is overseen by the United Nations High Commissioner for Refugees.
The state of South Africa is also party to other international instruments like the 1969 OAU Refugee Convention[6] which expands protection to include individuals fleeing external aggression, occupation, or events seriously disturbing public order, the Convention Against Torture (CAT), Article 3[7] which prohibits expulsion where substantial grounds exist to believe a person would be tortured and the International Covenant on Civil and Political Rights (ICCPR), Article 7[8] which reinforces protection against torture and cruel treatment. These legal instruments impose layered obligations, broadening the protective scope beyond narrow refugee definitions to encompass broader humanitarian concerns.
Domestic Incorporation
At the national level, the above obligations are incorporated in South Africa’s legislation such as Section 12 of the Constitution of South Africa which guarantees the right to freedom and security of the person, including protection against violence, torture, and arbitrary detention.[9] It also affirms human dignity by prohibiting cruel treatment and ensuring bodily and psychological integrity to citizens and non-citizens. Furthermore, section 2 of the Refugees Act 130 of 1998 explicitly prohibits the return of individuals to territories where their lives or freedom would be threatened as stated thus;
Notwithstanding any provision of this Act or any other law to the contrary, no person may be refused entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is compelled to return to or remain in a country where he or she may be subjected to persecution on account of his or her race, religion, political group; or opinion or membership of a particular social his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in either part or the whole of that country.[10]
This legislation directly incorporates Article 33, making non-refoulement binding in the domestic law of South Africa.[11]
To add to the above, there are other national legal statues that incorporate the international obligations South Africa is subject to like the Immigration Act 13 of 2002[12] which regulates broader migration but must be interpreted consistently with constitutional and international obligations, and the Promotion of Administrative Justice Act (PAJA)[13] which ensures that administrative decisions affecting asylum seekers comply with constitutional standards of fairness and reasonableness. Together, these statutes create a domestic framework that integrates sovereignty with protection, though tensions often arise in implementation. This creates a dual-layered legal framework in which international norms and national legislation converge to regulate migration governance.
However, the coexistence of these frameworks sometimes lays the foundation for tension. While emphasis is put on protection, national migration policies often prioritise sovereignty and border management. Despite international obligations, South Africa retains the sovereign right to regulate immigration and control its borders. The principle of state sovereignty is foundational in international law, granting states the authority to regulate entry, residence, and removal of non-citizens. Sovereignty is often invoked to justify restrictive migration policies, particularly in contexts of heightened security concerns or economic pressures. Yet sovereignty is not absolute; it is constrained by binding international obligations, most notably the principle of non-refoulement. The challenge, therefore, lies in balancing the legitimate interests of the state with its duty to protect vulnerable individuals.
Case Law Analysis
In the South African courts, the judiciary has played a pivotal role in mediating the sovereignty–protection tension as corroborated in the recent case of the Director-General v AI and Others, where a group of concerned asylum seekers whose home countries (e.g., Sudan, DRC, Palestine) had become more dangerous after they had already arrived in South Africa.[14] The legal issue was whether administrative barriers or timing could justify denying protection and whether deteriorating conditions in home countries after arrival justify protection. The Constitutional Court held that non-refoulement is absolute, that is, South Africa cannot return individuals to danger, regardless of bureaucratic obstacles, hence administrative barriers cannot override protection. The impact of this is that it expanded protection to account for changing global conflicts, reinforcing South Africa’s obligations under international law.
Administrative barriers have been shown to impede compliance with protection obligations. In Scalabrini Centre v Minister of Home Affairs, a case where asylum applications were automatically abandoned if applicants failed to renew visas on time.[15] It was held that that automatic abandonment breached non-refoulement and violated children’s rights. These barriers, while not constituting direct refoulement, create conditions that may lead to it indirectly. The impact of this decision was that it protected vulnerable groups, especially families and minors, from being unfairly excluded from asylum processes.
Another landmark case on refugee rights and administrative barriers is Kiliko v Minister of Home Affairs in which the court ruled that administrative inefficiencies cannot justify denial of asylum seekers’ rights, emphasizing procedural fairness.[16] It dealt with the constitutionality of a Department of Home Affairs’ policy limiting asylum applications processed daily to 20, which the court found violated fundamental rights under the South African Constitution, which deal with the rights to dignity and freedom and security of the person.[17] The case remains a precedent for refugee law in South Africa, especially regarding access to asylum procedures. It highlights the tension between administrative efficiency and human rights protections. Furthermore, in Abdi v Minister of Home Affairs it was reinforced that deportation procedures must comply with non-refoulement obligations.[18] It addressed the unlawful deportation of Somali asylum seekers and clarified the obligations of the Department of Home Affairs under the Refugees Act.[19] The asylum seekers were arrested and deported to Somalia without being allowed to lodge asylum applications. Section 21 of the Refugees Act requires that anyone expressing an intention to apply for asylum must be given the opportunity to do so.[20] The deportation was set aside, and the Department of Home Affairs was ordered to comply with the Refugees Act.
The above three cases form part of a trilogy of landmark refugee law judgments in South Africa, that is, Kiliko (2008)[21], Abdi (2011)[22], and Scalabrini (2013)[23]. Together, they map the evolution of judicial protection for asylum seekers. These cases demonstrate the judiciary’s consistent prioritization of constitutional and international commitments over administrative or sovereignty-based arguments. Collectively, these cases demonstrate that the judiciary has largely adopted a rights-based approach, seeking to align state practice with constitutional and international standards.
The treatment of undocumented migrants, however, often reflects a strict enforcement of sovereignty at the expense of protection. Detention and deportation practices, particularly when conducted without adequate procedural safeguards, risk violating both constitutional rights and international obligations.
Critical Analysis: Compliance or Contradiction?
South Africa’s legal framework strongly supports non-refoulement, however, its practical implementation suggests a pattern of selective compliance as administrative inefficiencies, resource constraints, and political pressures often undermine this commitment and often paints a contradictory stance. The tension between sovereignty and protection is not merely theoretical but reflects a deeper structural challenge within the migration governance. A legal paradox results when the state’s emphasis on border control and migration management takes precedence over its duty to protect. This results in a system that is normatively progressive yet practically inconsistent.
Therefore, it is more accurate to describe South Africa’s approach as one of partial compliance. The issue does not lie in the absence of legal norms, but in their uneven application. This distinction is critical, as it shifts the focus from law reform to institutional and administrative improvement.
Conclusion and Recommendations
The analysis reveals that although South Africa has established a thorough legal framework that includes the principle of non-refoulement, there are still notable difficulties in putting it into practice. The ongoing tension between state sovereignty and the duty of protection continues to influence migration policies, often at the expense of vulnerable individuals. In addition, it’s crucial to introduce stronger oversight and accountability measures to prevent unlawful detention and deportation. Additionally, policy reforms should ensure that migration control measures are more closely aligned with both constitutional and international obligations.
Ultimately, achieving a balance between sovereignty and protection requires more than formal legal compliance and South Africa’s credibility in the international community depends on its ability to uphold this balance. It demands a sustained commitment to upholding the rights and dignity of all individuals, regardless of their migration status and success in this would position South Africa as a leader in refugee protection on the African continent.
Reference(S):
[1] Refugees Act 130 of 1998 (South Africa), s 2
[2] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, art 33(1).
[3] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, art 33(2).
[4] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, art 33(1).
[5] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, art 33.
[6] Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (adopted 10 September 1969, entered into force 20 June 1974).
[7] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entered into force 26 June 1987) 1465 UNTS 85, art 3.
[8] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171, art 7.
[9] Constitution of the Republic of South Africa, 1996, s 12.
[10] Refugees Act 130 of 1998 (South Africa), s 2.
[11] Convention Relating to the Status of Refugees (adopted 28 July 1951, entered into force 22 April 1954) 189 UNTS 137, art 33.
[12] ¹ Immigration Act 13 of 2002 (South Africa).
[13] Promotion of Administrative Justice Act 3 of 2000 (South Africa).
[14] Director-General: Department of Home Affairs and Others v AI and Others (Constitutional Court of South Africa, 2025).
[15] Scalabrini Centre v Minister of Home Affairs [2023] ZAWCHC 123.
[16] Kiliko v Minister of Home Affairs 2008 (4) SA 60 (C).
[17] Constitution of the Republic of South Africa, 1996, ss 10 and 12.
[18] Abdi v Minister of Home Affairs [2011] ZAWCHC 181.
[19] Refugees Act 130 of 1998 (South Africa).
[20] Refugees Act 130 of 1998 (South Africa), s 21.
[21] Kiliko v Minister of Home Affairs 2008 (4) SA 60 (C).
[22] Abdi v Minister of Home Affairs [2011] ZAWCHC 181.
[23] Scalabrini Centre v Minister of Home Affairs [2023] ZAWCHC 123.
