Enforcement of Refugee Rights in South Africa Through Public Interest Litigation in the Spirit of Ubuntu

ABSTRACT

In the context of the constitutional value of Ubuntu, this piece examines the implementation of refugee rights in South Africa via the vehicle of public interest litigation. Refugees in South Africa frequently encounter systemic obstacles in accessing their rights, notwithstanding the country’s strong legal infrastructure, which includes the Constitution of the Republic of South Africa, 1996, and the Refugees Act 130 of 1998. However, by using constitutional ideals and Ubuntu to safeguard at-risk communities, the courts have had a revolutionary impact. This article critically examines the efficacy of public interest litigation as a means of refugee protection by analyzing legislative provisions, important court rulings such as Minister of Home Affairs v. Watchenuka and Union of Refugee Women v. Director: Private Security Industry Regulatory Authority, as well as current litigation methods. It contends that, imbued with the spirit of Ubuntu, litigation can close the gap between law and lived experience, but long-term reforms are necessary to guarantee refugees’ fundamental equality and respect.

INTRODUCTION

South Africa holds a special position in Africa as a constitutional democracy and a preferred place for migrants fleeing war, socioeconomic hardship, and persecution throughout the continent. In line with its reputation as a nation with comprehensive refugee laws and a progressive Bill of Rights, the United Nations High Commissioner for Refugees (UNHCR) reports that South Africa has admitted tens of thousands of asylum seekers each year. However, because refugees face discrimination, bureaucratic inefficiency, and isolation from social and economic life, the reality is frequently different from the constitutional guarantee.[1]

The 1996 Constitution of the Republic of South Africa  ensures fundamental rights such as freedom, equality, and dignity, and it applies to “everyone” in the Republic, including non-citizens. Additionally, the Refugees Act 130 of 1998 establishes the legal framework for determining who is a refugee, granting asylum, and granting access to socioeconomic rights. To further strengthen its commitment, South Africa has also ratified regional and international agreements, such as the 1951 Convention Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.

Despite this strong legal foundation, refugee rights are still not uniformly enforced. Public interest litigation is one of the most crucial tools for addressing this enforcement gap. By frequently citing the African concept of Ubuntu, which stresses human interconnectedness and dignity, cases like Minister of Home Affairs v. Watchenuka demonstrate the judiciary’s readiness to defend refugee rights against administrative action..[2] In the Republic of South Africa’s 1996 Constitution fundamental rights like freedom, equality, and dignity are guaranteed, and it applies to “everyone” in the Republic, including non-citizens.[3] Furthermore, the Refugees Act 130 of 1998 provides the legislative basis for establishing who qualifies as a refugee, granting asylum, and granting access to socioeconomic rights. South Africa has also ratified international and regional accords, such as the 1951 Convention Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa, to demonstrate its commitment.[4]

Despite this robust legal basis, the rights of refugees are still inconsistently enforced. One of the most important instruments in addressing this enforcement vacuum is public interest litigation. Cases such as Minister of Home Affairs v. Watchenuka ,highlight the judiciary’s willingness to protect refugee rights against administrative action by frequently quoting the African notion of Ubuntu, which emphasizes human interconnectedness and dignity.

RESEARCH METHEOLOGY

The methodology used in this study is a doctrinal and analytical approach to legal research. It is mainly based on the interpretation of laws, constitutional clauses, and judicial judgments pertaining to refugee rights in South Africa. The legislative foundation of the study consists of the Republic of South Africa’s Constitution of 1996, the Refugees Act No. 130 of 1998, and its implementing rules. To see how courts have interpreted refugee rights, important case law is studied, such as Minister of Home Affairs v. Watchenuka and Union of Refugee Women v. Director: Private Security Industry Regulatory Authority The strategy is also comparative, placing South Africa’s practices within wider African and international refugee protection frameworks, such as the 1951 Convention Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa. Additionally, the study uses data from secondary sources, such journal articles, policy papers, and reports from human rights groups, to analyze the real lives of refugees and the effectiveness of public interest lawsuits.

LEGAL FRAMEWORK

The foundation of refugee protection is the 1996 Constitution of the Republic of South Africa. Regardless of citizenship, the Bill of Rights grants its protections to “everyone” in the Republic. Refugees have the right to dignity, s10 equality (S9), freedom s12, and access to justice 34. [5]The constitutional protection of the rights of non-citizens has been strengthened by cases such as Khosa v. Minister of Social Development.[6]

These constitutional obligations are put into effect by the Refugees Act 130 of 1998, which protects refugees’ rights to non-refoulement s2, work and education s 27b(c), and access to health and social services s27(g). However, bureaucratic obstacles have hindered their implementation.[7]

The 1951 Refugee Convention and its 1967 Protocol, as well as the 1969 OAU Refugee Convention, both of which extend protection clauses, have been signed by South Africa.. The African Convention is significant for its recognition of those relocated because of incidents that disrupt public order.

Internationally, South Africa is party to the 1951 Refugee Convention and its 1967 Protocol, and the 1969 OAU Refugee Convention, which broaden protection standards.[8] The African Convention is particularly notable for recognising people displaced by events disturbing public order.

JUCIAL INTERPRETATION

 Ruta v. Minister of Home Affairs [2019] ZACC 55, 2019(2) SA 329 (CC): This is a landmark decision that addressed the issue between the Immigration Act and the Refugees Act. The Constitutional Court ruled that if an individual indicates a desire to apply for asylum, the Immigration Act’s provisions that allow for their detention and deportation cannot be utilised to shortcut the asylum process. The court confirmed that the Refugee Act takes precedence and that detention or deportation actions must be stayed until the asylum process is completed.

[9]. This judgment was a critical victory for procedural fairness and the principle of non-refoulement.

Gavrić v. Refugee Status Determination Officer, Cape Town (2018). ZACC 38, 2019 (1) BCLR 1 (CC) This case provides an exemplary example of judicial review under refugee law. Mr. Gavrić was refused refugee status for his involvement in a serious non-political crime. The Constitutional Court found that the Refugee Status Determination Officer breached procedural fairness by using evidence that Mr Gavrić was not allowed to challenge. The court reversed the verdict, emphasizing the need of providing adequate reasons and a fair hearing. This case highlights the judiciary’s responsibility in ensuring that administrative entities follow the law and are transparent.[10] This case demonstrates the judiciary’s role in ensuring that administrative bodies act lawfully and transparently.

 Abdi v. Minister of Home Affairs (2003), ZASCA 118. The case involves an indefinite detention of a group of asylum seekers. The Supreme Court of Appeal held that a person cannot be imprisoned forever only because they are seeking refuge. The court emphasized that a person who has applied for asylum has the right to stay in the nation until their case is resolved. While case law has evolved to allow for partial detention in some situations, this judgment cleared the path for challenges against arbitrary detention of asylum seekers.

While Ubuntu is not often expressly mentioned, its spirit drives judgments that safeguard dignity and fairness. However, inconsistency continues.

Critical Analysis: The Role of Ubuntu

PIL’s implementation of refugee rights is closely consistent with the Ubuntu philosophy. Ubuntu was described by the Constitutional Court in decisions like S v Makwanyane as a value system that promotes “human dignity, social justice, and compassion.” PIL in refugee law is motivated by a sense of community duty to protect the dignity of others, not by personal gain. The concept of “umuntu ngumuntu ngabantu,” which holds that others define a person’s identity, is represented by it. In order to guarantee that refugees are treated as fellow human beings and are not exposed to arbitrary detention, dehumanizing conditions, or xenophobic violence, the courts have used this notion implicitly and explicitly in their judgments. The issues highlighted above are not just about legal formalities; they are also about giving meaning to the basic tenet that “everyone” counts.

RECENTS DEVELOPMENTS AND CHALLENGES

Despite these judicial successes, significant challenges persist. The Department of Home Affairs continues to face administrative backlogs, and legislative changes, such as the proposed White Paper on Citizenship, Immigration and Refugee Protection, may create further obstacles. The Kopanang Africa Against Xenophobia case, where the ICJ intervened as amicus curiae, highlights the ongoing problem of xenophobia and state inaction.[11]

Recent years have witnessed restrictive modifications, such as the Refugees Amendment Act 11 of 2017, which tightened asylum standards. Litigation remains central, with Scalabrini Centre cases providing access to reception offices. The Somali Association confirmed the refugees’ freedom to trade.[12]

During COVID-19, the Scalabrini Centre v. Minister of Social Development case obtained access to social relief funding for asylum seekers, reinforcing their socioeconomic rights.
Regionally, the African Union promotes the Kampala Convention (2009), while internationally, South Africa has endorsed the Global Compact on Refugees (2018). Both paradigms emphasize solidarity, which aligns with Ubuntu’s concept. However, implementation domestically remains limited. These developments underscore the ongoing need for PIL to act as a counterbalance to executive and legislative measures that may undermine refugee rights.

SUGGESTION AND WAY FORWARD

The road forward is incorporating Ubuntu into refugee law, strengthening the Department of Home Affairs through funding and accountability, and expanding civil society’s engagement in litigation. Parliament should review restrictive revisions to the Refugee Act in order to better accord with international obligations. To combat xenophobia, social cohesion initiatives should promote Ubuntu, while integrationist policies like those found in Uganda should be tailored to South Africa’s specific needs. Regionally, South Africa should ratify the Kampala Convention and enhance cooperation under the Global Compact for Refugees.[13]

A multifaceted strategy is required to enhance the enforcement of refugee rights.
The court should oppose efforts to erode refugee protections and interpret the law in a revolutionary manner driven b  principles such as Ubuntu. Laws should be passed to strengthen the legal system and address systemic issues that are causing backlogs and delays. [14]Legal aid clinics and non-governmental organizations (NGOs) are important players in public interest litigation, influencing legislation and holding the state responsible for more than just individual cases.  To combat xenophobia and uphold the Ubuntu philosophy, which acknowledges the humanity of all individuals, societal change is required.[15]

CONCLUSION

Although everyone is entitled to equality, dignity, and protection under South Africa’s constitution, structural barriers obstruct refugee rights. In order to hold the state accountable, public interest litigation has been essential; landmark cases have ensured access to services and employment. However, the revolutionary potential of refugee legislation is limited by the uneven implementation of Ubuntu. Refugee protection might be transformed from a controversial duty to a reality of shared humanity through a comprehensive approach that includes administrative transformation, legal conformity with international norms, civil society development, and the intentional implementation of Ubuntu. By doing this, South Africa upholds its Constitution while also exhibiting its moral leadership both inside and outside of Africa.

BIBLIOGRAPHY

Case Law

Abdi v Minister of Home Affairs (2003) ZASCA 118

Bhe and Others v Magistrate Khayelitsha and Others 2005 (1) SA 580 (CC)

Gavrić v Refugee Status Determination Officer, Cape Town [2018] ZACC 38; 2019 (1) BCLR 1 (CC)

Ruta v Minister of Home Affairs [2019] ZACC 55; 2019 (2) SA 329 (CC)

S v Makwanyane 1995 (3) SA 391 (CC)

Legislation

Constitution of the Republic of South Africa, 1996

Refugee Act 130 of 1998

Journal Articles

Abduroaf, M. ‘The Impact of South African Law on the Islamic Law of Succession’ (LLD Thesis, University of the Western Cape 2018)

Madinginye, K.R.D. ‘Impact of the Intestate succession on the interests of women and children’ (LLM Research Paper, University of Pretoria 2017)

Osman, Z. ‘The Role of NGOs in Protecting the Rights of Refugees in South Africa’ (2017) 21 Law, Democracy & Development 145

Other Sources

Department of Home Affairs, White Paper on Citizenship, Immigration and Refugee Protection: Towards A Complete Overhaul of the Migration System in South Africa (Government Gazette No 49690, 10 November 2023)

Lawyers for Human Rights, ‘Public Interest Litigation’ (LHR Website) https://www.lhr.org.za/ accessed 24 August 2025

[1] The United Nations High Commissioner for Refugees (UNHCR)

[2] Minister of Home Affairs v. Watchenuka (2004) 4 SA 326 (SCA)

[3] The Constitution of the Republic of South Africa

[4] the 1969 OAU Convention

[5] Khosa and Others v Minister of Social Development and Others; Mahlaule and Another v Minister of Social Development [2004] ZACC 11; 2004 (6) SA 505 (CC); 2004 (6) BCLR 569 (CC), Constitutional Court of South Africa, Case No: CCT 12/03, judgment delivered 4 March 2004

[6]The Constitution of the Republic of South Africa 1996

[7] Refugees Act 130 of 1998

[8] The 1951 Refugee Convention and its 1967 Protocol

[9] Ruta v Minister of Home Affairs [2019] ZACC 55; 2019 (2) SA 329 (CC)

[10] Gavrić v Refugee Status Determination Officer, Cape Town [2018] ZACC 38; 2019 (1) BCLR 1 (CC):

[11] Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others, Case No: 44685/2023 (GJ), heard 10–11 June 2025, judgment pending, International Commission of Jurists (ICJ) intervened as amicus curiae

[12] Refugees Amendment Act 11 of 2017,

[13] Ibid

[14] Baldauf, M.C. (2024). Enforcement of refugee rights in South Africa through public interest litigation in the spirit of Ubuntu. University of Cape Town, Faculty of Law, Department of Public Law

[15] Kaungu, G.M. (2021). Reflections on the Role of Ubuntu as an Antidote to Afro-Phobia. Journal of African Law, 65(S1), 153–170. Cambridge University Press.