Moratorium on asylum cases pending full Bench ruling
Confusion over a July Constitutional Court ruling on asylum seekers has prompted Judge President Aubrey Ledwaba to convene a full Bench to clarify how courts should apply the judgment, reports GroundUp.
The apex court held that migrants cannot be deported before accessing the asylum system, striking down provisions of the Refugees Act that allowed deportation without considering applications.
Yet two Gauteng judges have since issued conflicting judgments, leaving uncertainty over whether detainees should be released immediately or held while Home Affairs facilitates asylum procedures.
In August, Judge Mandlenkosi Motha heard 21 applications from Ethiopian, Congolese and Nigerian nationals detained at Lindela Repatriation Centre. They claimed they wished to apply for asylum but had not yet been interviewed by a refugee reception officer.
Motha refused to release them, ordering instead that Home Affairs conduct interviews at Lindela or transport them to reception offices.
He warned it would be 'the height of folly' to release undocumented people back into society, where they could face re-arrest.
His ruling also referenced public sentiment shaped by anti-immigrant campaigns such as March and March and Operation Dudula, suggesting that the voices of 'downtrodden members of society' should be heard in these matters.
In contrast, GroundUp reports, Judge Stuart Wilson ordered the immediate release of an Ethiopian asylum seeker on 14 July 2026.
In written reasons delivered on 2 September 2026, Wilson said the Constitutional Court required release once an intention to apply for asylum was expressed.
He criticised Motha’s reliance on public opinion, cautioning against conflating impoverished communities with xenophobic organisations.
'I have my doubts about whether xenophobic organisations have much support among the poor and the vulnerable,' Wilson wrote, adding that most South Africans struggling with poverty would avoid blaming foreign nationals for their hardships.
The divergence has strained court rolls, already burdened by asylum-related applications in the wake of anti-immigrant campaigns.
To restore consistency, Ledwaba has imposed a moratorium on hearing affected cases until the full Bench sits on 29 October 2026.
The court will consider whether continued detention of asylum seekers aligns with constitutional protections and whether judges may order detention while Home Affairs facilitates access to refugee procedures.
Ledwaba emphasised the need for legal certainty so that similar cases are treated alike.
Ledwaba has invited interested parties and organisations, including the Ministers of Home Affairs and Police, the NDPP, Lawyers for Human Rights, the Scalabrini Centre and the UNHCR - to join as friends of the court.
The ruling will set a precedent not only in Gauteng but across SA, and depending on the outcome, could ultimately return to the Constitutional Court for final clarity. For now, asylum seekers remain in limbo, with their fate hinging on the October hearing.
The October ruling will also have an impact in other provinces, and will shape SA’s refugee law landscape, balancing constitutional rights against public concerns over undocumented migration.
Article disclaimer: While we have made every effort to ensure the accuracy of this article, it is not intended to provide final legal advice as facts and situations will differ from case to case, and therefore specific legal advice should be sought with a lawyer.
