The Constitutional Court of South Africa (ConCourt) has issued 45 written judgments this year, focusing on cases affecting migrant rights, voter rights, and public interest access to tax records. In 2023, the court ruled in the Scalabrini Centre of Cape Town's challenge to the validity of subsections 22 (12) and 22 (3) of the Refugees Act of 1998, which state that an asylum seeker who fails to personally renew their visa within one month of expiry must be regarded as having abandoned their asylum application. The court found the sections unconstitutional because they violate the principle of non-refoulement, a regulation of international law prohibiting a country from sending asylum seekers back to the country where they face danger or persecution.
The court also made another unanimous ruling related to the planned deportation of Beneyam Deselegn Ashebo, who had travelled to South Africa illegally in June 2021 and claimed his family had been killed and he was being persecuted for his religious beliefs. He was arrested in July 2022 for being undocumented. Deputy Chief Justice Mandisa Maya agreed that the ConCourt should decide Ashebo's case after he failed to prove urgency in the high court.
The court ruled that the principle of non-refoulement protects the applicant from deportation until an applicant's refugee status has been finally determined. Ashebo was entitled to an opportunity to be interviewed by an immigration officer to ascertain whether there are valid reasons why he does not have an asylum transit visa. This ruling will likely be used as case law by other potential asylum seekers similarly detained.
The South African ConCourt has been involved in several cases involving the immigration and refugee system, which have highlighted significant flaws. These cases are being studied closely by Home Affairs before any future legislative change. The department is trying to correct these issues with the White Paper on Citizenship, Immigration, and Refugee Protection, which calls for written submissions by 19 January 2024.
The ConCourt has also personally chastised Home Affairs Minister Aaron Motsoaledi and the department's director-general for litigation in a third case involving sections of the Immigration Act, which were found invalid and unconstitutional. The court took issue with the department's conduct in the litigation and slapped Motsoaledi with a personal costs order to pay 10% of the legal fees. The director-general, Livhuwani Makhode, has been ordered to pay 25% of the legal fees, and the court has ruled that Advocate Mike Bofilatos SC should not receive a cent for work done on the application.
In May, the ConCourt ruled that sections of the Promotion to Access of Information Act (Paia) and the Tax Administration Act, which disallow entirely access to a third party's tax records, are invalid. The court agreed that Sections 35 and 36 of Paia and Sections 67 and 69 of the Tax Administration Act conflict with Section 32 of the Constitution, which says that “everyone has the right of access to (a) any information held by the state; (b) any information that another person holds and that is required for the exercise or protection of any rights.”
The court also had to decide how the 2024 elections would unfold, with the number of signatures required for independent candidates to enter the race in question. In May, the court delivered a judgment in a case brought by Constance Mogale and the Land Access Movement against the Speaker of Parliament, the National Assembly, and all nine provincial legislatures.
