On 7 July 2026, the Constitutional Court handed down judgment in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others 126/2025, confirming the Western Cape High Court’s 2025 declaration of unconstitutionality and invalidity of sections 4(1)(f), 4(1)(h), 4(1)(i) and 21(1B) of the Refugees Act, alongside regulations 8(1)(c)(i), 8(2), 8(3) and 8(4) of the Refugee Regulations GNR1707. These provisions require asylum seekers who enter South Africa through unofficial ports of entry to demonstrate “good cause” before they may lodge an application for refugee status and may potentially disqualify them from refugee status before the merits of their application have been considered.
In a unanimous judgment, the Constitutional Court reaffirmed the principle of non-refoulement, which prohibits returning persons to countries where they may face persecution. The Court held that procedural non-compliance cannot operate as a precondition to accessing the asylum system or as a threshold requirement for the assessment of an asylum seeker application as asylum seekers may be required to demonstrate “good cause” before different officials without a clear definition or consistent guidelines governing its application.
The Helen Suzman Foundation (HSF), admitted as amicus curiae in both the High Court and Constitutional Court, made submissions on the harmful consequences of the provisions for children. HSF submitted that the impugned provisions would have the effect of “double harm” for the child of an asylum seeker who is unable to demonstrate “good cause”, erasing a child’s status as being an individual right holder and excluding them from participation in procedural processes that affect them.
The Court made reference to the High Court determination that “the impugned provisions unjustifiably limit the constitutional rights of children who are illegal foreigners while living in South Africa, depriving them of their most basic rights”. The Constitutional Court acknowledged this harm and expressly agreed that the impugned provisions would “violate the fundamental rights at the heart of non-refoulement, including the rights of children.”
Of note, The Court also strongly criticised the respondents for making unsupported claims regarding Afghan and Bangladeshi nationals, warning against “rhetoric that risks being perceived as xenophobic or racially charged”. It emphasised that such submissions may shape broader narratives about refugees and negatively affect the protection of their rights. The Court also made an aggressive cost order against the respondent, ordering them to pay the applicants costs as they were scolded for litigating “exceptionally poorly”.
Undertaking these matters contributes to the strengthening of the South African protection framework of children who are at increased risk of becoming invisible in the refugee and asylum seeker system. HSF thanks the work of our attorneys Deneys and Counsel, Adv Irene de Vos and Adv Safura Abdool Karim.
Read all of the related papers here.
