Home Affairs was right to withdraw its directive of September 28. It was hastily drafted and poorly communicated and, by the department’s own account, issued without the minister’s knowledge.
It sent thousands of people to five refugee reception offices that could not cope, put officials at risk and handed opportunists a ready-made grievance. A department that had spent years resisting the law it was now implementing could hardly have chosen a clumsier way to obey it.
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We welcome the department’s assurance that it remains committed to complying with the Constitutional Court’s order and will find a workable way to do so. But we cannot ignore how the withdrawal came about or the message it sends.
Consider the reasons the department gave: offices overwhelmed, officials endangered and threats to public safety and order. The threats came from those who blockaded the Durban reception centre on Che Guevara Road, chased applicants away and torched vehicles in Soweto.
Once government signals that intimidation can shift policy, every grievance gains an incentive to turn violent. The rule of law cannot survive being negotiated in the street.
It is worth recalling what the court decided. On July 7, a unanimous Bench, in a judgment written by Justice Steven Majiedt, confirmed that sections of the Refugees Act were unconstitutional. The provisions allowed officials to turn away people who entered irregularly or reported late, without asking whether they faced persecution or death at home. The court found the tests vague, the officials’ discretion unguided and section 21(1B) irrational. It found the provisions violated non-refoulement, the principle that no one may be sent back to danger before their claim has been heard on its merits.
What the judgment established is that a person who asks for protection must be heard before being expelled. The state sought no suspension of the order, so it took effect immediately.
That is why withdrawing the directive changes nothing in law. The struck-down sections remain dead. If reception offices revert to turning people away for lack of papers, they will be acting on law that no longer exists. The department will then find itself back in court.
The judgment castigated its “gross ineptitude” in handling the appeal. It also condemned counsel’s unsupported claims about Afghan and Bangladeshi nationals, warning that such submissions “carry the potential to shape broader societal narratives about refugees”.
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Those narratives are playing out on our streets. Government has a duty to counter them, not echo them. Warning foreign nationals not to “clog our system” while vigilantes police the queues does nothing to calm tension.
Home Affairs must say – and soon – how people will lodge their claims: more offices, appointment systems, mobile registration or the receipts the withdrawn directive proposed. Police must protect the queues and arrest those who torch property and intimidate others. And government must speak with one voice.
South Africans are entitled to demand an immigration system that is functional, fair and firm. They are not entitled to take the law into their own hands.
- Home Affairs withdrew its September 28 directive because it was hastily drafted, poorly communicated, and issued without the minister’s knowledge, leading to overwhelmed refugee reception offices and safety risks.
- The Constitutional Court ruled on July 7 that certain sections of the Refugees Act were unconstitutional, stating that those seeking protection must be heard before being expelled, with immediate effect and no suspension of the order.
- The court condemned the department’s “gross ineptitude” in handling its appeal and criticized unsupported claims about Afghan and Bangladeshi nationals that could influence societal narratives negatively.
- The withdrawal of the directive does not change the law; offices must comply with the court ruling and cannot turn people away based on now-invalid legal provisions.
- The government has a duty to counter violent intimidation affecting asylum seekers, ensure proper processing methods, protect queues, arrest offenders, and communicate a clear, unified immigration policy.
