“Opaque, absurd, discretional, and irrational”: The Constitutional Court of South Africa strikes down domestic provisions barring access to asylum

On 7 July 2026, the Constitutional Court of South Africa handed down a long-awaited judgment in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others 126/2025, where it declared the unconstitutionality and invalidity of several provisions introduced by the 2017 Refugees Amendment Act and enacted since 2020. In doing so, the Court confirmed what was previously found by the Western Cape High Court in May 2025. This judgment represents a landmark case for several reasons. Most importantly, it may pave the way for bringing the right to asylum back to life in South Africa, where the provisions in place since 2020 have created “a system that provides sole discretion for acceptance or denial to an immigration officer, allowing such officers to prevent asylum seekers from submitting claims for asylum on the basis of immigration-related procedural errors” (para. 22). After offering a brief overview of its main content, this blog post encourages reflections on two main and interrelated respects highlighted by the judgment: 1) the systemic dysfunctionality of the Department of Home Affairs (DHA) not only in managing the asylum system but also in approaching the Courts and in respecting the rule of law; and 2) the climate of xenophobia that has contaminated the DHA’s arguments in front of the Constitutional Court.