Authored By: Keamogetswe Phike
University of South Africa
On July 7,2026, the South African Constitutional Court drew a definitive line between the sovereign right to secure national borders and the constitutional mandate of procedural justice. For years, the Department of Home Affairs faced immense pressure to manage the irregular migration crisis under strained state capacity. To this, the response was that the state sought to weaponize administrative procedures, introducing amendments to the Refugees Act that allowed border officials to reject asylum seekers for missing minor procedural deadlines.
Despite that a ruling penned by Justice Steven Majiedt, the nation’s highest court delivered a sounding blowback to this strategy. The court made it clear that the administrative proficiency should not or in this case cannot override the foundational international law of non-refoulment. By cutting down these obscene rules as unconstitutional, the judgment reaffirmed that procedural fairness must stand as a gateway, not a barrier to diminish human rights.
Therefore, this article will examine the critical clash between border control and procedural justice, analyzing how the 2026 ruling will reshape South Africa’s asylum landscape and will serve as a reminder that in a constitutional democracy, the process of law must remain fundamentally just.
In Scalabrini (2026) judgment, the Constitutional Court was asked to determine whether the legislature could Bypass the Ruta precedent. Justice Steven Majiedt, writing for a united court, rejected the state’s attempts to bypass substantive human rights through procedural formalisms. The Court therefore stated that a refugee status is not constitutive by the state rather it is declaratory by the state. A person becomes a refugee the moment they meet the required criteria established by international law, the 1951 Refugee Convention and the 1969 OAU Refugee Convention. The court exposed multiple flaws in the “good cause” ideology: 1) neither Acts nor the Regulations defined what constituted as a “good cause” despite that it left a negative drawback. 2) those immigration officers who lacked specialized training in refugee law were unstructured and confused on who would enter the asylum system and who should be deported. 3) During this process there was procedural unfairness, it failed to give asylum seekers the right to legal representation and translation services.[1]
The court noted that due to the lack of legal guidelines, it had its share of inconsistencies. A family fleeing conflict may be turned back or deported for lacking a transit visa whilst another official may understand their situation. The constitutional court erected the vague barrier to the fundamental constitutional right is irrational and violates the concept of legality. Primarily the Constitutional Court had to go back to an earlier ruling in Scalabrini Centre of Cape Town and Another vs Minister of Home Affairs and Others the abandoned case decided in later 2023. In that matter, the court overturned sections 22(12) and section 22(13) of the Refugee Act, in which it resulted an asylum application “abandoned” if the applicant failed to renew their visa within one month of expiry. Applying the same logic to the 2026 case the court ruled that the state could not use procedural defaults at the beginning of the process.[2]
To fully comprehend the unconstitutionality of this exclusion policy, one must first dissect the specific statutory provisions of the Refugee Act of 1998 as amended by the Refugee Amendment Act 11 of 2017. The primary mechanism of exclusion lies within section 21 (1B) of the Act, read together with Regulations 7 and 8. These provisions introduced a rigid administrative problem; an asylum seeker entering the Republic irregularly is mandated to report to a Refugee Reception Office (RRO) within five days of entry to obtain an asylum seeker visa. Therefore, the statute stipulates that failure to meet the five-day deadline results in an automatic, statutory presumption that the applicant has forfeited or in this case “abandoned” their claim to asylum. Once an application is deemed abandoned, the individual is instantly reclassified as an illegal foreigner under the Immigration Act 13 of 2002, stripping them of their documented status and rendering them immediately liable for arrest, detention and deportation.[3]
Furthermore, the court’s section 36 of the Constitution analysis focused primarily on the requirement of “less restrictive means.” The bench observed that the Department of Home Affairs could easily implement less damaging administrative penalties, such as reasonable fines or expedited review processes to compel compliance with deadlines, rather than resorting to a structural shift that extinguishes a person’s legal existence. The 2026 Scalabrini judgment reasserted that administrative efficiency must not and should never be bought at the price of human survival. By striking down Section 21(1B) as unconstitutional, the court firmly established that a procedural default can never serve as a legal pretext for the state to bypass its absolute constitutional obligation to preserve human dignity, protect bodily security, and prevent unlawful return of vulnerable human beings to zones of conflict.[4]
THE RIGHTS OF VALNERABLE CHILDREN
Section 28 (2) of the South African Constitution states that “a child’s interests are of utmost important in every matter concerning the child”. This is a high priority right that applies to all children living in South Africa’s borders, regardless of their immigration status or nationality. Now under the Refugee Act if the family or parent was unable to demonstrate “good cause” and missing the five-day deadline then they forfeit the entire asylum process. This process not only harms the parent, but it also harms the child given the section that the child’s right to a best interest was infringed. This double-harm concept is rather painful to the child because it highlights that the child will get penalized twice for a single administrative error made by an adult. Justice Majiedt concluded that “A child can not bear any constitutional cost because of their parent’s procedural defaults. To deport or deny protection to a child based on an [5]adult’s failure to comply with administrative failure is flagrant abdication of the state’s duty under section 28 (2) of our Constitution. The procedural tail can not be permitted to wag the substantive constitutional dog, particularly when that dog is a vulnerable child.” Now by striking down these provisions the 2026 judgment re-established that in South African law, the protection of a child is absolute, non-negotiable limit on the state’s exercise of sovereign border control.
How Procedural Trap Violates section 9, 12, 26 and 28 of the constitution of South Africa.
Section 9 (equality) states that everyone has the right to equality. It guarantees that everyone is equal before the law. According to Khosa v Minister of Social Development, the state’s attempt to use procedural non-compliance as a ‘barrier’ contradicts those of the Constitutional court’s reasoning of Khosa. In that matter Mokgoro J established that when it comes to the Bill of rights and it confers a protection upon ‘everyone’ such as section 9 (the right to equality), section 12 (freedom and security of the person), section 26 (access to housing) the state can not use the immigration status of individuals as an excuse to deny them those rights. By fabricating a procedural trapdoor that stripped asylum seekers of their documentation, the state had created an impermissible mechanism of exclusion that goes against the constitutional principles established by Khosa.[6]
The core principle applies with even greater force when examining section 28, which governs the rights of vulnerable children. Primarily, the constitutional principles established by Khosa emphasized that the state has a delegated duty to protect children who are entirely dependent on adults for their survival and development. By looking at section 28 (1)(c), it grants children immediate, unqualified right to basic shelter. Now by fabricating this procedural trapdoor that strips asylum seeking parents of their documentation, the state automatically puts up a ‘barrier’ that they can not overcome or access the legal system. This generally triggers a direct violation of section 28(2), as it penalizes blameless children and forces them into a state of destitution and homelessness that initially violates the inclusive constitutional frameworks established in Khosa.[7]
Is this all Reasonable under section 36 of the constitution?
Some may argue that under this section it is reasonable and others may oppose. Concurrently, the state argued that under section 36 that the limitation is very reasonable and justifiable in an open and democratic society from the states perspective the five-day rule serves as an important purpose, by safeguarding national security and protecting asylum infrastructure from system abuse. One may think that the state had a valid point; however, the limitation constitutes a miscalculation, the state knows that human rights come first and denying migrants entry and the right to asylum violates their right to equality that comes before the law. The state argued that it was reasonable because it saved the government money. The court argued the state has no right to use administrative convenience as an excuse to infringe the rights of people, whether they are Southern African residents or migrants seeking Asylum. In this regard the court’s conclusion was that excluding non-citizens from basic social security benefits was an unjustifiable violation of equality and the right to dignity that could not be saved by administrative strain. Under this section, which is called the ‘limitation clause’ one may see that the state was right from its point of view, but the people’s rights are an absolute priority whether foreign or not. In this regard, the historical precedent set on Khosa v Minister of Social Development remains highly instructive.[8]
Consequently, when applying section 36 limitation test, the state’s argument collapses. While legislature has a right to manage borders, the procedure chosen lacks rationale, it does not have a connection to its goal of clearing backlogs, as it forces vulnerable people in undocumented destitution and homelessness. Because of this, the state could easily utilize much less restrictive administrative measures to verify applications without stripping the dignity of the people and their documentation. The five-day rule represents an unconstitutional shortcut meant to protect the government rather than focusing on the rights of the people. Finally, under the limitation clause, a person’s core human rights are absolute, they must be prioritized over bureaucratic ease regardless of their legal status or their nationality.[9]
In conclusion the constitutional validity of the rigid procedural barriers imposed upon asylum seekers represents an overwhelming battleground between state sovereignty and the transformative truth of the South African Bill of Rights. Throughout this analysis, it has become evident that the state’s implementation of restrictive mechanism, such as the five-day reporting rule, exposes a deep systemic tension between administrative convenience and the non-negotiable representation of human worth. While the Department of Home Affairs attempts to shield these limiting frameworks behind the veil of national security, border control and the preservation of finite resources, a vigorous constitutional assessment reveals that these arguments may not withstand the exacting standard of our legal order. The state’s sovereign right to regulate immigration is not an absolute power, it is entirely bound by the supreme values of human dignity, equality and freedom.
When tested against the proportionality of the matrix of section 36 of the Constitution, the state’s regulatory shortcuts seem to completely collapse. The fundamental flaw in the state’s methodology is the assumption that bureaucratic backlogs and financial strains can justify the absolute erasure of an individual’s legal presence. As this article demonstrated, creating a procedural trapdoor that systematically strips individuals’ documentation and dignity does not rationally advance administrative order. Instead, it merely forces a highly vulnerable class of human beings into undocumented destitution, cutting directly into the core of Section 9 (equality), Section 12 (bodily security), section 26 (adequate to housing) and section 28 (the rights of children). The state’s argument fails the ultimate problem of the limitation clause because it is less restrictive, more constitutionally compliant administrative alternatives are readily available to verify applications without inflicting permanent, irremediable human suffering. This baseline principle applies with even greater moral and legal urgency under Section 28, which dictates that the best interests of vulnerable children must remain paramount, strictly forbidding the state from punishing blameless minor dependents for the procedural defaults of their parents.
Reference(S):
[1] Scalabrini (2026) (n11) [61]
[2] Constitution, s 21(12), s 23(13)
[3] Refugee Act 1998, Refugee Amendment Act11 of 2017
[4] Constitution, s 36, s 21(1B)
[5] Constitution, s 28(2)
[6] Constitution, s 9, s 12, s 26 and s 28
[7] Khosa (n4) [74]
[8] Khosa and Others v Minister of Social Development and others [2004] ZACC 11; 2004 (6) SA 505 (CC) (hereafter Khosa)
[9] Ibid [77]
