Authored By: Bokang Mofokeng
Introduction:
Over the last ten years, the South African borders have experienced a steady and increasing rate of foreign individuals immigrating into the Country. The issue arises from the fact that majority of the immigrants are moving to South Africa without ensuring they have the necessary documentation that is inline with their reason for coming to the country. The two most commonly found reasons for migration to South Africa is either the fact that the South African economy is sable and provide prospects, or it is that some foreigners seek asylum in South Africa due to threat of life in their own country1. The increased influx of undocumented/illegal foreigners has had its negative effects on the country in terms of economic performance, crime rate, availability and delivery of state resources. This will be explained in the paragraphs that follow.
Legal Framework:
The legislation that is applicable to this article are as follows:
- The Constitution of the Republic of South Africa2.
- The Immigration Act3.
- The Refugees Act4
The Constitution of the Republic of South Africa is the highest law of the land, meaning that no other law can contradict or supersede it. Section two of the Constitution is referred to as the Bill of rights, these rights are seen as essential for “everyone” in South Africa with the purpose of promoting democracy, freedom, equality and humanity while preventing the injustices of the past (apartheid) from occurring again. The following rights: S21- Right to movement and residence, S24- Right to environment, S27- Right to health care, food, water and social security. Apply to “everyone” in the country including illegal or undocumented foreigners, as they may be breaking immigration laws, but the specific use of the word “everyone” was purposely used to prevent discrimination to all people. This provides illegal foreigners with a somewhat legal standing and the right to enter the country.
As per the Immigration Act, the term ‘illegal foreigner’ refers to individuals that are in the country without authorisation under the ImmigrationAct5. An example of this are individuals that overstayed their visa or entered without permission. It is important to consider the definition of a refugee as the two are similar but not the same. Both refer to an individual moving from one country to another but for different reasons and circumstances. A refugee is defined as an individual that is granted asylum or awaiting confirmation as a refugee under the Refugee Act6.
The Immigration Act is the legislation that provides guides on handing legal and illegal migration. Section 32 of the Immigration Act provides that an illegal foreigner must depart the country unless authorised by the directors-general to remain7. This is followed by Section 34 which states that an immigration officer may detain and deport illegal foreigners without a warrant8. Detention can last anywhere from 30 to 90 days (if warranted).
Section 41 of the Immigration Act provides for officers to request valid identification to verify an individual’s status9. This leads to section 49 which covers penalties and offences such as over staying a visa, unauthorised entry and failing to comply with deportation orders10. The penalties start with different of categories fines and range up to imprisonment (up to four years). 11
The Refugees Act is designed to provide for those fleeing persecution in their own countries. Section 3 of the Act states the necessary requirements to be eligible for refugee status, protecting them from ill-treatment based on gender, age or political views12. This section follows to state that all applications must be submitted in person to a Refugee reception office, therefore leading to a temporary asylum seeker permit being issued while that specific case is being reviewed. The specific details with regards to the asylum seeker permit is found under Section 22 of the Act13.
Section 27 of the Act provides and grants basic rights such as access to education, health care and the ability to work to refugees14. This section also incudes a passage the prohibits the refugee from returning to their original country (where they can be harmed).
It is important that each legislation, being the Immigration Act15 and the Refugees Act16 provide for the reason they were created without contravening with the other. The Immigration Act was created for the purpose of providing regulation for admission of persons into the Republic, their residence therein, and their departure therefrom; and to provide for related matters17. The purpose of the Refugees Act is to give effect to international legal instruments, principles, and standards relating to refugees within the Republic of South Africa; to provide for the reception of asylum seekers into the country; to regulate the process for applying for and obtaining refugee status; to set out the rights and responsibilities associated with such status; and to address related matters 18. Sometimes the occasion of “related matters” would overlap into both legislations at once examples of how both legislations are applied in common law will be explained in the paragraphs that follow.
Judicial interpretation:
In the case of Benyam Deslgn Ashebo V Minister of home affairs and others19 A foreigner was arrested for contravening S49 of the Immigration Act20. The accused claimed that he was in the process of implementing the necessary steps to implement S22 of the Refugees Act which refers to the process of receiving an Asylum seeker permit21.This provided the Asylum seeker temporary permission to remain in the country while their case is processed. The application of the legislation here was that if you are not full compliance with the Refugees Act, you would be contravening the Immigration Act, therefore making you vulnerable to legal enforcement.
A second example of how the two legislations overlap and are used together is the case of Lembore and Others v Minister of Home Affairs22 where the accused did not have the necessary paper work as per S22 of the Refugees Act23, therefore qualifying him as an illegal immigrant. Leading to the Immigration Act applying. This led to the development and application of the “good cause” rule, which referred to the court providing the opportunity to hear is there is a clear, valid “good cause” (good reason) delayed or not complied with the stipulations S22 of the Refugees Act24. This amendment applied to both the legislations, ensuring that no rights are abused and improved the application of legal enforcement.
Critical analysis:
The current legislation regulating immigration and related matters, serves its purpose well as proved with the cases above25. The complications and delays start with the enforcement of said legislation. This raisesthe issue that the more undocumented foreigners in the country in the more South African government service delivery deteriorates. This starts from basic necessities such as running taps, to medical services26. The increased population causes forced urbanisation, high costs and other socio-economic issues27. This occurs because the current resources cater to more than it was designed for as these facilities are available to “everyone” meaning that illegal foreigners get access at the expense of the government. Yet every citizen pays taxes and receives below par services in return.
Conclusion:
In conclusion, the South African government needs to improve on implementation of the Immigration legislation, possibly taking measures to increase security such as border quotas and anti-corruption measures. This would lead to a more satisfactory delivery of Rights and services to citizens.
Reference(S):
Legislation:
- The Constitution of the Republic of South Africa, 1996.
- The South African Refugees Act 130 of 1998.
- The South African Immigration Act 13 of 2002.
Case law:
- Beneyam Deselegn Ashebo v Minister of Home Affairs and Others CCT250/22. • Lembore and Others v Minister of Home Affairs and Others [2024] 2 All SA 113 (GJ).
Journal Articles:
Web Resources:
- Mohammed Moolla, Understanding South Africa’s immigration and refugee policies: key laws and recent court rulings. De Rebus (Feb.1,2025), https://www.derebus.org.za/understanding-south-africas-immigration-and-refugee policies-key-laws-and-recent-court-rulings .
- Home Affairs, Impact of illegal migration on cities: input from Joburg & Ekurhuleni Mayors, SALGA & Minister. Parliamentary Monitoring Group (Oct.22,2019), https://pmg.org.za/committee-meeting/29125 .
- Nomonde Mnukwa, Government on blocking of access to healthcare services. South African Government (Jul.05,2025), https://www.gov.za/news/media statements/government-blocking-access-healthcare-services-05-jul-2025 .
1 Mohammed Moolla, Understanding South Africa’s immigration and refugee policies: key laws and recent court rulings. De Rebus (Feb.1,2025), https://www.derebus.org.za/understanding-south-africas-immigration-and-refugee-policies-key-laws-and-recent-court-rulings.
2The Constitution of the Republic of South Africa, 1996.
3The South African Immigration Act 13 of 2002
4The South African Refugees Act 130 of 1998.
5The South African Immigration Act 13 of 2002.
6The South African Refugees Act 130 of 1998.
7The South African Immigration Act 13 of 2002, S32.
8The South African Immigration Act 13 of 2002, S34.
9The South African Immigration Act 13 of 2002, S41.
10 The South African Immigration Act 13 of 2002, S49.
11 The South African Immigration Act 13 of 2002, S49
12 The South African Refugees Act 130 of 1998, S3.
13 The South African Refugees Act 130 of 1998, S22.
14 The South African Refugees Act 130 of 1998, S27.
15 The South African Immigration Act 13 of 2002.
16 The South African Refugees Act 130 of 1998.
17 The South African Immigration Act 13 of 2002.
18 The South African Refugees Act 130 of 1998.
19 Beneyam Deselegn Ashebo v Minister of Home Affairs and Others CCT250/22.
20 The South African Immigration Act 13 of 2002.
21 The South African Refugees Act 130 of 1998, S22.
22 Lembore and Others v Minister of Home Affairs and Others [2024] 2 All SA 113 (GJ)
23 The South African Refugees Act 130 of 1998, S22.
24 The South African Refugees Act 130 of 1998, S22.
25 The South African Refugees Act 130 of 1998 & The South African Immigration Act 13 of 2002.
26 Home Affairs, Impact of illegal migration on cities: input from Joburg & Ekurhuleni Mayors, SALGA & Minister. Parliamentary Monitoring Group (Oct.22,2019), https://pmg.org.za/committee-meeting/29125 .
27 Home Affairs, Impact of illegal migration on cities: input from Joburg & Ekurhuleni Mayors, SALGA & Minister. Parliamentary Monitoring Group (Oct.22,2019), https://pmg.org.za/committee-meeting/29125 .
