PRESS STATEMENT | Con Court confirms abandonment provisions in Refugees Act are unconstitutional

Date: 14/12/2023

On Tuesday 12 December 2023, Lawyers for Human Rights noted the Constitutional Court’s long-await judgment in the so-called “abandonment provisions” case. The Constitutional Court has now confirmed that these provisions in the Refugees Act are unconstitutional.

On 1 January 2020, the Refugees Act was amended and sections 22(12) and 22(13) were introduced. The sections provided that when an asylum seeker or refugee fails to renew their permit within one month of its expiry, it will be presumed that they have “abandoned” their claim – in other words, that they no longer seek refugee status, or no longer wish to make an application for asylum, and should be deported or leave South Africa. The matter was initially heard in the Johannesburg High Court, with the Scalabrini Centre of Cape Town (SCCT) as the applicant and the Department of Home Affairs as the respondent.

The SCCT argued that the provisions violate constitutional rights, including the rights to life, dignity, and freedom and security of the person, due to the practical, systemic challenges that applicants encounter at the Department of Home Affairs when trying to renew their permits. The High Court, and now the Constitutional Court, agreed that refugees and asylum seekers in South Africa cannot be blamed for these state inefficiencies and systemic shortcomings, including excessively long queues and unreasonably large backlogs that prevent timely permit renewals. In this regard, the Department of Home Affairs was the author of its own misfortune.

LHR represented the Consortium for Refugees and Migrants in South Africa (CORMSA) as a friend of the court (amicus curiae), and made arguments based on the best interest of the child. Children are seriously impacted by their parents’ failure to renew their documents. If a parent fails to renew, a child will not be able to go to school, receive medical attention, or access any other rights to which they are entitled.

“We are very happy about the court’s decision. DHA has based their arguments on the backlog in their system, for which they are themselves responsible. We feel they are doing nothing to address the backlog but want to tighten the laws, which ironically will only make the backlog worse. Refugees and asylum seekers, who want to regularise their presence in our country, should not be punished for the Department’s own incompetence,” said Carol Lemekwana, LHR’s Johannesburg law clinic manager.

The Department has been ordered to change the Refugees Act to do away with the unconstitutional abandonment provisions, and to continue processing permit renewal for the applications it has forced to overstay.

For further information, contact:

Carol Lemekwana, attorney in the LHR Refugees and Migrants Rights Programme, and manager of the LHR Johannesburg Law Clinic


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