State to ask court to supervise Home Affairs in scramble to fix asylum system

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{JSON.stringify(article.attachments[0], null, 2)} –>The Department of Home Affairs plans to introduce a new asylum registration system by 10 November, as the government prepares to ask the courts for more time to comply with a Constitutional Court ruling.

11 Oct 2026 Justice Minister Mmamoloko Kubayi. (Photo: Gallo Images / Fani Mahuntsi) Dive Deeper Speed Read Summary Listen Dive Deeper The government plans to ask the courts for more time to implement a Constitutional Court judgment that removed procedural barriers to asylum applications, with Home Affairs preparing a new registration system, which is expected to be introduced by 10 November.

Justice Minister Mmamoloko Kubayi announced the plans on Sunday, 11 October, saying the government had received legal advice that it could seek a supervisory order from the courts to guide implementation of the judgment. The government may also ask for a suspension period to give Home Affairs time to build the capacity needed to comply.

The announcement comes after anti-foreigner protests in Durban and Soweto turned violent this week. Vehicles were torched, shops were looted and people were injured.

Kubayi said 30 people had been arrested since Thursday – 25 in KwaZulu-Natal and five in Gauteng. The alleged offences included public violence, illegal gathering, obstruction and resisting arrest. 

While condemning protests that result in looting and intimidation, Kubayi also raised concerns about the growing spread of inflammatory and misleading content online.

She said freedom of expression is constitutionally protected, but warned that incitement to violence, intimidation, hate speech and criminal conduct are not protected and would not be tolerated.

On 7 July, the Constitutional Court struck down provisions of the Refugees Act that restricted access to the asylum system for people who entered South Africa irregularly or failed to report to a refugee reception office within five days.

The court found that these procedural requirements could prevent people with legitimate claims from having their applications assessed on their merits.

On 28 September, Home Affairs issued a directive instructing refugee reception offices to accept people who indicated that they intended to apply for asylum, including those who had entered the country unlawfully or did not have the required documentation.

The department subsequently withdrew the directive after refugee reception offices were overwhelmed by the number of people seeking to apply for asylum.

Kubayi said the government had been advised to approach the courts for a supervisory order. This would allow the court to oversee implementation and provide guidance on what measures were needed and how much time Home Affairs should be given to develop the necessary administrative, staffing, infrastructure and processing capacity.

“This option that we are presenting, is what [the] legal team says is sound in legal terms and has prospects of success. The objective is not to delay compliance, but to ensure effective and sustainable compliance that serves both the administration of justice and the broader public interest,” the minister said.

“We reiterate our acknowledgement of the judgment of the Constitutional Court and reaffirm Government’s unwavering commitment to upholding the Constitution, the Rule of Law, and South Africa’s national and international obligations towards refugees and asylum seekers. We have carefully considered the implications of the judgment and various options to respond to the challenge arising from its subsequent order as promised in our last briefing,” Kubayi added.

Kubayi acknowledged that the state remained legally bound by the order and could be found in contempt of court if it failed to comply. The government would need to obtain any further relief it seeks from the court.

Home Affairs plans to introduce a phased system for registering the intention to apply for asylum and scheduling appointments by 10 November.

Under the proposed system, people intending to seek asylum will be able to register online and receive a receipt containing their personal details, biometric information, a reference number and an appointment at a refugee reception office.

Assisted registration will be available at reception offices and, on request, for people held in police or immigration detention. Officials, legal representatives and civil society organisations will be able to help, with registration available in the main languages.

The receipt will not be a section 22 visa and will not confer refugee status. It will record the person’s intention to apply for asylum and provide proof of that intention while the person awaits an appointment to lodge a formal application.

Kubayi said Home Affairs would instruct its officials and the Border Management Authority not to remove or return holders of valid receipts to countries where they could face persecution or serious harm. They would also not be arrested or detained solely because they were in South Africa without a visa while awaiting the lodging and final determination of their applications.

The department would inform the police, correctional services, the National Prosecuting Authority and the courts of these arrangements.

The proposed system is intended to prevent a repeat of the queues that formed after the September directive while ensuring that people seeking protection can access the asylum process.

But it remains to be seen whether Home Affairs can introduce the system by the announced deadline and provide enough appointments to meet demand.

The department has five refugee reception offices, and the influx of applicants following the September directive exposed its limited capacity to process them.

The proposed system also raises questions about access for people without internet-enabled devices or identity documents, how appointments will be managed and what will happen if the platform fails or applicants cannot attend their scheduled appointments.

Kubayi said the system would accommodate people without devices or documents, protect personal information and include published service standards, a complaints process and statistics available to the courts.

The proposed registration system will distinguish between people making a first asylum application and those whose claims have been finally rejected.

According to Kubayi, a person whose asylum claim has been finally rejected after any applicable review or appeal cannot reactivate the protection provided by the Refugees Act simply by declaring an intention to apply again. Such applicants will be flagged to prevent them from repeatedly registering new applications.

However, the Constitutional Court left open the question of whether the law fails to provide adequately for people who develop a genuinely new claim after their earlier application has been rejected.

Kubayi said cases in which a person raises a specific new claim that removal would expose them to persecution or serious harm should be referred for legal advice before removal.

The government says deportations will continue for people who are in the country unlawfully and have not applied for asylum, as well as those whose claims have been finally rejected after the applicable review or appeal process.

The government’s proposed application comes as a panel of judges in the Gauteng Division of the High Court prepares to consider conflicting judgments concerning the implementation of the Constitutional Court ruling.

The hearing is scheduled for 29 October. The panel was established by Gauteng Judge President Aubrey Ledwaba after two high court judgments reached different conclusions in similar cases involving asylum seekers.

According to Kubayi, the cases raise questions about whether asylum seekers should be released immediately or whether Home Affairs should first conduct their asylum interviews.

The government has directed the relevant departments and entities cited in the proceedings to participate in the hearing and make submissions on the administrative implications of the Constitutional Court judgment.

The high court proceedings and the planned application for a supervisory order are separate legal processes. Neither automatically suspends the Constitutional Court judgment.

Home Affairs is also drafting legislation aligned with the Revised White Paper on Citizenship, Immigration and Refugee Protection, which has been approved by Cabinet.

Kubayi said the government had asked Home Affairs Minister Leon Schreiber to fast-track the process. The legislation is expected to be processed through Parliament in the next financial year.

Among the proposed changes are provisions allowing asylum applications to be lodged remotely and incorporating the first-safe-country principle into South African law.

The principle concerns whether a person seeking protection should have sought asylum in another country considered safe before arriving in South Africa. The precise effect of any proposed provision will depend on the legislation ultimately introduced and enacted.

The government is also working towards moving refugee reception centres to ports of entry, beginning with Beitbridge by December, according to Kubayi. DM

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