- The Constitutional Court is being asked to decide whether South Africa’s duty to protect asylum seekers must adapt as global conflicts and risks of persecution change over time.
- Lawyers for Human Rights and the Scalabrini Centre of Cape Town argue that the principle of non-refoulement is absolute, and that administrative or procedural barriers should never justify sending people back to harm.
- With humanitarian crises intensifying in places like Sudan, the Democratic Republic of Congo and Palestine, the outcome of this case will help shape the future of refugee protection and dignity in South Africa.
South Africa’s highest court is now at the centre of a case that could redefine the country’s responsibilities towards people seeking refuge from danger.
The matter involves a group of asylum seekers who claim their risk of persecution has increased since arriving in South Africa, raising urgent questions about whether the state can lawfully deny protection when conditions in their home countries deteriorate. At stake is South Africa’s promise, enshrined in both domestic law and international agreements, never to return someone to face serious harm.
Lawyers for Human Rights represented the Scalabrini Centre as amicus curiae in the matter of Director-General: Department of Home Affairs and Others v AI and Others, heard by the Constitutional Court on 10 November 2025. The case focuses on South Africa’s obligations to individuals at risk of persecution, violence or harm due to changes in their home countries after they have fled.
As the organisations put it, “the case therefore goes to the heart of South Africa’s domestic and international legal obligation of non-refoulement, which prohibits the return of a person to a country where they may face persecution or serious harm.”
Non-refoulement and international law
The organisations point out that South Africa is bound by the 1951 Refugee Convention, the 1967 Protocol, the 1969 OAU Refugee Convention, Section 2 of the Refugees Act, and Section 12 of the Constitution. “The State may not deny individuals protection where there is the reasonable possibility of persecution or harm upon return,” their statement insists.
Lawyers for Human Rights and the Scalabrini Centre emphasise that “non-refoulement is absolute and applies regardless of procedural status.” They argue that South Africa must provide “fair, accessible, and meaningful procedures to assess new or changed circumstances,” and that “the Constitution requires a purposive and protective interpretation of the Refugees Act in line with international law.”
Human impact and the stakes
“In a world where conflict shifts rapidly, protection must shift with it,” they warn, urging the court not to view danger as a fixed point in time. The organisations caution that “administrative or procedural barriers cannot be used to justify the forced return of people facing serious harm.” They stress that “it is the risk that matters, not the paperwork,” a sentiment that resonates for those whose permits expired while they were hiding, healing or escaping renewed threats.
With humanitarian crises and displacement on the rise, the statement concludes that “South Africa’s commitment to protection is more critical than ever.” Lawyers for Human Rights have told the court that returning people to conflict zones “would betray the spirit of dignity that underpins our Constitution.”
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