Home Affairs’ retreat from its own lawful directive after disinformation-fuelled violence, shows not strength but weakness – and signals to anti-rights groups that intimidation works, argue Sharon Ekambaram, Dale McKinley and Rebecca Walker.
Last week’s violence and Home Affairs’ retreat on implementing the Constitutional Court’s asylum ruling are part of a global pattern: anti-rights movements testing how far constitutional protections can be pushed, starting with migrants.
On 7 July, the Constitutional Court unanimously confirmed that parts of the Refugees Act that shut people out of the asylum system on procedural grounds – crossing at an unofficial border post, arriving without an asylum transit visa, failing to report to a Refugee Reception Office within five days – are unconstitutional. It did not grant anyone refugee status, citizenship or a right to stay. It simply said that a person who says they have fled persecution must have that claim heard before the state decides to reject it and deport them.
Within three months that modest principle had been misrepresented and weaponised beyond recognition.
False claims circulated that the court had opened the borders, granted automatic residence or citizenship to anyone entering, and given asylum seekers the vote in the upcoming local elections.
Home Affairs itself rejected these claims on 7 October but by the following day, vehicles were burning in Soweto, and foreign-owned shops were being looted in Durban.
On 9 October, the department withdrew its directive, with Minister Leon Schreiber citing “facts which demonstrate the inability for us to fully do this right now”.
Government created its own capacity problem
Home Affairs says its offices were “overwhelmed within a matter of days”. Not every office was, but the numbers were entirely predictable.
Since 2020, the asylum system has been effectively closed to new applicants, first by Covid-19 closures and then by the very provisions the court struck down. People still needed protection; they simply had no way to apply when the offices opened, years of accumulated need arrived at once.
The Gqeberha office has three refugee reception officers and, by one estimate, can process no more than 15 new applications a day. Far from being ambushed by the ruling, the department had nearly three months to plan for a surge.
The backlog has been allowed to stretch across decades: in 2020 the Auditor-General warned it would take 68 years to clear, even if no new cases arrived.
A R147 million, United Nations High Commissioner for Refugees (UNHCR)-funded project launched in 2021 promised to clear 153 391 appeals in four years.
By May this year, the Refugee Appeals Authority told Parliament that the backlog stood at about 161 000, with only 19 064 cases finalised since the project began, some dating back to 1998. So where is the plan?
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Part of the answer lies in what has been taken. In February, the Special Investigating Unit’s interim report described visas and permits at Home Affairs being “sold, traded, and laundered” over two decades, with more than R181 million in gains traced to fraudulent applications.
Corruption in Home Affairs, and across the state since the years of state capture, robs South Africans themselves. Migrants did not empty the state’s coffers, yet they are the ones being blamed.
What happens to asylum seekers in the meantime?
The withdrawal changes nothing in law: the judgment stands, and every asylum seeker is protected from refoulement until their claim is finalised. However, without a document, people cannot prove to a police officer, clinic clerk or landlord that they are lawfully awaiting a decision.
Left in limbo, they risk arrest, extortion, detention at Lindela and possible deportation. The government is now asking the Gauteng High Court in Pretoria whether undocumented asylum seekers can be detained while they wait. If “building capacity” becomes “detain first, process later”, it reverses the judgment in all but name. It is also costlier: detention, deportation and litigation cost far more than an appointment.
Meanwhile, those who queued in good faith in September made themselves visible to the state and to anti-migrant groups who care about the law only when it suits them. Without papers or anonymity, they are once again exposed.
Does this make the state look weak?
Yes, but not for the reasons the anti-migrant crew think. A department admitting it lacks capacity, and arriving with a plan, would be refreshingly transparent. But a department that issues a lawful directive, stands by as disinformation spills into violence, then withdraws the directive while playing the victim, is weak.
Worse, it bows to anti-rights groups instead of applying the law. Whatever DHA intended, many will now conclude that disinformation and violence work.
A Constitution under attack
Around the world, anti-rights movements have made migrants their first test. The method is familiar: misrepresent a judgment, mobilise fear, take to the streets, and wait for the state to bend.
In the UK in 2024, online falsehoods about a Southport knife attack fuelled riots targeting hotels housing asylum seekers.
In the US, the erosion has come from the top: last week the American Civil Liberties Union (ACLU) documented 76 ways in which the mass deportation drive is breaking American democracy.
What is normalised for non-citizens soon turns on citizens, the press and the judges themselves.
South Africa has its own version.
In November 2025, the Gauteng High Court in Johannesburg had to interdict Operation Dudula from harassing predominantly black African foreign nationals and demanding identity documents.
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Recently, Minister in the Presidency, Khumbudzo Ntshavheni, said: “If the Constitution of South Africa does not prioritise South Africans, South Africans have a right to demand the amendment of that Constitution to protect themselves and their own sovereignty.”
That is the anti-rights argument in its purest form: rights belong only to some, and the founding document that binds the state is an obstacle to overcome. It shamelessly revives the logic of apartheid: divide-and-rule, and rights allocated by race, class, gender and nationality.
Our Constitution declares that South Africa “belongs to all who live in it”. A country that lived under the dompas should know better than most what happens when paperwork becomes a weapon.
What should happen now?
Home Affairs can be given time to get its house in order, but it cannot be allowed to pause indefinitely again. Five steps are needed:
1. A public, time-bound plan. Publish dates, staffing numbers and office-by-office targets within weeks, report to Parliament, and communicate in South Africa’s official languages and those spoken by asylum seekers.
2. Protection while people wait. Anyone who declares an intention to seek asylum should receive an appointment slip protecting them from arrest and deportation until they are seen. This costs almost nothing.
3. Appointments, not queues. Pre-registration, staggered appointments and staff redeployed to the busiest offices would remove the crowds that become targets.
4. Fix the backlog. Without tackling appeals, opening the front door simply moves the queue.
5. Defend the Constitution and prosecute lawbreakers. Cabinet should consistently counter disinformation, ministers should stop treating a unanimous judgment as a constitutional crisis, and those who organised last week’s violence should be prosecuted.
The Constitutional Court has done its job, and now the government must do the same: implement the judgment, protect those it covers, and stand up to those who want rights only for some and will break the law to get them. Asylum seekers are the first target – history shows they will not be the last.
- Sharon Ekambaram is a member of Kopanang Africa Against Xenophobia and with Lawyers for Human Rights
- Dale McKinley is a member of Kopanang Africa Against Xenophobia and Research & Education Officer at the International Labour Research & Information Group
- Rebecca Walker is a member of Collective Voices for Health Access and a Research Associate with the African Centre for Migration & Society (ACMS) at the University of the Witwatersrand.
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