The Refugees Act 130 of 1998 enabled South Africa to treat asylum seekers in a humanitarian
and dignified manner. However, more than 20 years into democracy, the refugee status
determination system, which is the responsibility of the Department of Home Affairs (DHA)
is overburdened with asylum applications. The core criticism against the DHA is its failure to
finalize asylum application within 180 days.
The key attraction of South Africa’s asylum regime is its non-encampment policy, which
bestows on an asylum seeker the right to work or study pending the outcome of the asylum
This mini-dissertation will not focus on challenges that asylum seekers and refugees may
encounter when asserting a specific entitlement. The aim is instead to highlight red flags which
will assist any interested party to have a basic understanding of what refugee status
determination in South Africa entails.
Although refugee status determination is an administrative process, South African courts have
laid down jurisprudence confirming the following: (i) At the moment a foreigner expresses an
intention to apply for asylum, he or she must be afforded the opportunity to do so; (ii) Illegal
entry into the state do not bar application for asylum; (iii) Equality before the law affords
asylum seekers suspected of being illegal the right to appear before a competent court within
48 hours of arrest; and (iv) Asylum seekers must apply for immigration permits from abroad.
Differently put, an asylum seeker may not apply for a change in status, pending adjudication
of an asylum claim in South Africa.
To deter illegal migration to South Africa, the DHA has done the following: (a) It unilaterally
closed the Cape Town and Port Elizabeth Refugee Reception Offices (RRO’s); (b) It
established a Border Management Agency to dispense with adjudication of asylum applications
at a border post or point of entry; (c) It granted special dispensation work permits to asylum
seekers from Southern African Development Community (SADC) countries.
Refugee status determination and dissecting a persecution claim may be perceived as two
different enquiries. The latter enquiry is often the subject matter of statutory tribunals and
courts during judicial review proceedings. This study explains the key functions of roleplayers,
their different processes and inherent functions under the umbrella of refugee status
determination. It is recommended that attorneys and non-governmental organisations be allowed to actively
participate, from the inception stage, in South Africa’s refugee status determination process.
This will minimise the life-cycle of an asylum claim which often ends in judicial review
proceedings. This forces the DHA to be accountable, transparent and to reflect on its
commitment to treat asylum seekers, refugees and foreigners in good faith and dignity.
Mini Dissertation (LLM)--University of Pretoria, 2018.