- The implementation of Constitutional Court rulings on asylum applications has fuelled public anger over immigration.
- The ANC could face electoral consequences as frustrated voters turn away from the governing party.
- The DA could avoid some of the political fallout despite its control of Home Affairs.
The oft-repeated polemical utterances by Jacob Zuma, the ageing uMkhonto weSizwe Party leader, that President Cyril Ramaphosa is the death knell of the ANC may yet prove prophetic for the party’s fate in the upcoming local government elections.
Most polls have projected the ANC’s national electoral outcome to hover between 32% and 35%. Yet, recent events, barely a few weeks before the 4 November elections, may precipitate a further decline in its electoral fortunes, potentially even below the poll predictions.
A surge in asylum applications
The recent rush by foreign nationals to Home Affairs offices to apply for asylum, and the concomitant marches opposing this by organisations such as March and March and Phakel’ uMthakathi’s Insizwa Nobunsizwa, have become a source of consternation for many citizens in South Africa.
The trigger for the frantic activities by both undocumented foreign nationals and organisations opposed to illegal immigration was the Department of Home Affairs’ implementation of the Constitutional Court’s judgment in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, delivered on 7 July 2026.
The court unanimously confirmed that an asylum seeker cannot be denied access to the asylum process merely because, for instance, they entered or remained in the country illegally. The judgment emphasised that the authorities must allow an asylum claim to receive a proper merits-based assessment.
The practical significance of the Scalabrini judgment, further clarified by Ered v Minister of Home Affairs and Another, a Gauteng High Court judgment delivered on 2 September 2026, has far-reaching implications for South Africa’s ability to deal with illegal immigration. It weakens the state’s immediate enforcement powers.
According to the Ered judgment, once a person detained under immigration law expresses an intention to apply for asylum, continued detention for immigration purposes becomes unlawful, and release should follow. This does not, of course, mean that every such person will ultimately qualify for refugee status; the asylum claim must still undergo the required merits-based process.
Misplaced blame and public anger
Many opponents of the documentation of these “asylum seekers” (I deliberately put the words in quotation marks because many in those snaking queues are Pakistanis, Bangladeshis, Somalis, Ethiopians, Eritreans and others whose individual circumstances do not necessarily involve war) lay the blame at the doorstep of the apex court’s aforementioned judgment.
This is a misplaced apportionment of blame. The judgment was rightly guided by our Constitution, the Refugees Act and the international obligations South Africa has undertaken, which cumulatively promote the protection of refugees fleeing war, political and other forms of persecution.
Those among the thousands of foreign nationals standing in long queues at various Home Affairs centres throughout the country whose asylum applications are ultimately approved will enjoy the rights and protections afforded to recognised refugees and asylum seekers under South African law.
These include access to employment, education and healthcare. This has fuelled the anger of some South Africans, particularly the many jobless black citizens who now face increased competition for scarce economic opportunities and public resources.
In a country with the highest levels of inequality in the world, what is at stake are the limited jobs in an economy with a 33.6% unemployment rate, the estimated R200 billion per annum township economy and other scarce resources. The ANC, seen as the leader of government, has, rightly or wrongly, become the target of this public anger.
Black South Africans make up the bulk of the ANC’s electoral constituency. The consequence of this public anger is likely to manifest in some ANC supporters either boycotting the polls or voting for smaller black parties, thus splitting the black vote into inconsequential smithereens.
The Democratic Alliance (DA), on the other hand, should, in my view, see its electoral fortunes enhanced by the political consequences of the Scalabrini judgment. Its constituency includes farmers, captains of industry, employers operating relatively small businesses, as well as blue- and white-collar workers who employ people in menial occupations such as domestic and gardening work.
Some sections of this constituency stand to benefit from the availability of cheap labour among vulnerable refugees. Thus, this constituency is likely to coalesce around the DA and potentially propel its electoral fortunes. The irony in all of this is that the focus of the nation’s anger should, arguably, be the Minister of Home Affairs, who is a senior DA member.
A 2023 Constitutional Court judgment in Ashebo v Minister of Home Affairs and Others concerned asylum seekers, illegal immigration, detention and the principle of non-refoulement, that is, the principle that a person should not be returned to a country where they face persecution or serious threats to their life, physical safety or freedom. The case formed part of the legal development preceding the Scalabrini judgment.
Ministerial inaction and missed opportunities
When Dr Leon Schreiber was appointed Minister of Home Affairs in July 2024, he knew that illegal immigration was a huge challenge for the country. What did he do? He just twiddled his fingers. There were a few solutions he could have championed. First, he could have pursued amendments to the Refugees Act designed to achieve legitimate immigration-control objectives while still protecting genuine asylum seekers.
Second, he could have sought to establish a clearer screening system with objective criteria and procedural safeguards rather than relying on an open-ended patchwork of standards such as “valid reasons”, “good cause” and “compelling reasons”. Indeed, the Constitutional Court itself found that these different standards were insufficiently defined and created a real risk of arbitrary and inconsistent decision-making.
Third, he could have improved border management and expanded the capacity of refugee reception offices so that genuine asylum seekers could be processed efficiently while the state retained the capacity to enforce its immigration laws. We are in this situation now, and that is the price we have to pay for having one of the best constitutions in the world.
The irony, however, is that constitutionalism may be protecting the rights of those whom many South Africans believe should not be here, while the political consequences of that protection may be borne not by the DA, which controls Home Affairs, but by the ANC, which remains the face of government in the eyes of the electorate.
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The opinions expressed in this article are solely those of the author and do not necessarily reflect the views of Conviction.co.za
