Asylum in South Africa: how a court ruling became a directive, a withdrawal and 19 arrests in Durban

A Constitutional Court judgment delivered in July on access to the asylum application process produced a Home Affairs directive that allowed undocumented foreign nationals to approach asylum reception offices to apply for asylum status. The department has since withdrawn that directive. That sequence, a court ruling, a departmental directive and a withdrawal, is the machinery behind the unrest in Durban on Thursday and Friday last week, and it is worth understanding on its own terms because it governs what happens at a Home Affairs counter every working day.

Start with the rule. South Africa’s asylum system is administered by the Department of Home Affairs under the Refugees Act. A person who enters the country and intends to apply for asylum is required to approach an asylum reception office, where the application is lodged and processed. The July Constitutional Court judgment concerned access to that process. What the judgment did, as the source material records it, was address the terms on which undocumented foreign nationals may approach asylum reception offices to apply. The department responded with a directive giving effect to that access. It has since withdrawn the directive.

The withdrawal is the operative fact for anyone standing in a queue this week. A directive is an internal instruction to officials. It tells a counter official, a reception officer or a border official how to treat a person in front of them. When a directive is issued, it widens what an official may accept. When it is withdrawn, the position reverts to whatever the law and the department’s standing instructions provide. The source material does not record the department’s stated reason for the withdrawal, and this piece does not supply one.

What a reader is entitled to at a Home Affairs asylum reception office is a defined process. The applicant approaches the office. The application is lodged. The department then assesses it. The outcome of that assessment determines whether the person may remain in the country while the application is processed, and what status, if any, attaches. The department has previously stated publicly that an application does not by itself confer refugee status, and that status is not automatic. That is a statement about the process, and it is consistent with how the Act is written. An application is the beginning of an assessment, not the end of one.

The reason this matters beyond the counter is that the Durban unrest is directly connected to it. As IOL reported on 14 October, residents in Durban’s Berea area described fearing for their safety after protesters allegedly targeted foreign nationals, stormed a property and set a scrapyard alight. KwaZulu-Natal provincial police spokesperson Robert Netshiunda said 19 suspects were arrested following protests on Thursday and Friday. Netshiunda confirmed two houses and a scrapyard were burnt and several shops were damaged in and around Durban, and that some of the damaged shops were looted. He said the majority of those arrested were students, and that intelligence officers and detectives were continuing to search for those responsible for the burning of cars and buildings.

The 19 accused appeared in the Durban Magistrate’s Court on Monday. The charges include public violence, malicious injury to property, incitement to commit public violence, and contravening the Regulation of Gatherings Act. That matter was adjourned to 16 October. Three of the accused also face charges of attempted murder, and their matter was adjourned to 19 October for bail consideration.

What the record shows is that the protests followed the July judgment and the subsequent directive, and that the directive has since been withdrawn. What the record does not show is that the withdrawal has resolved anything on the ground. A withdrawal is an instruction to officials. It is not a change to the Refugees Act, and it does not alter the assessment a reception officer must make. It changes the terms on which a person is admitted to the process.

For a South African reader, the practical questions are these. If you are an asylum applicant, the office you approach and the directive in force on the day you approach determine what you are told at the counter. If you are a resident of an area where reception offices, informal trading sites or scrapyards sit close together, the enforcement question is what the state can actually do about people who are in the country without status, and how quickly. Neither question is answered by a court judgment alone, and neither is answered by a withdrawal alone. Both are answered by the department’s capacity to process applications, to decide them, and to act on the decisions.

The department has not, in the source material available here, set out what replaces the withdrawn directive, or how reception offices are to handle applicants who present without documents in the interim. That is the gap a reader at the counter will notice first. Until it is filled, the position on the ground is the standing law and the standing instructions, applied by officials who were briefly told to do something else and are now told not to.

The Durban cases return to the magistrate’s court on 16 October, and the bail consideration for the three attempted murder accused is set for 19 October. Those are the next dated steps in the criminal process. The administrative process, the one that governs the counter, has no date attached to it in the material available.