By Lehlohonolo Lehana.
The Constitutional Court overturned the Supreme Court of Appeal (SCA) ruling that asylum seekers, who had been denied asylum, can reapply while remaining in South Africa.
The apex court handed down the ruling on Tuesday, 12 May 2026.
The case relates to Burundian nationals Amina Irankunda and Arava Niyonkuru, who fled their country for South Africa between 2008 and 2012.
The two argued that their new applications should be considered as Burundi had been hit by political violence during the 2015 presidential election.
At least 70 people were killed in unrest after then-President Pierre Nkurunziza took the controversial decision to run for a third term.
The duo applied for asylum in terms of the Refugees Act 130 of 1998.
Their asylum applications were rejected by a Refugee Status Determination Officer on the basis that they were manifestly unfounded.
However the Lower courts and the SCA had sided with them, saying the Refugees Act allowed for fresh claims based on “sur place” refugee status.
The Department of Home Affairs appealed to the Constitutional Court, saying the law does not permit endless re-applications. The apex court agreed, ruling that the Act is designed to give people one proper chance to have their claim heard and decided.
In the majority judgment, Judge Jody Kollapen highlighted the central issue was whether Irankunda and Niyoknkuru, as “failed” asylum seekers, are entitled under the Refugees Act to lodge subsequent applications.
He found that the SCA had failed to properly distinguish between an initial sur place claim and a repeat asylum application.
“The term sur place has been incorrectly used to describe the situation when a failed asylum seeker makes a subsequent application for asylum sur place based on changed circumstances,” the judgment states.
However, Justices Nonkosi Mhlantla Nicholls and Dhaya Pillay Rogers strongly disagreed, saying that the Refugees Act can be understood to allow new applications if there has been a big change in circumstances.
The dissent pointed to the act’s definition of an abusive application for asylum, which refers to repeat applications submitted after refusing one or more prior applications without any substantial change having occurred.
According to the dissenting judges, that wording implicitly recognises that repeat applications may be legitimate if conditions have materially changed.
They said that the majority’s interpretation could lead to unfair and unreasonable results.
Leon Schreiber, the minister of Home Affairs welcomed the ruling as a “major victory” against the “abuse” of the refugee system.
Schreiber called the ruling important for government efforts to bring about a more “effective and fair system to manage refugees and asylum seekers”.
The ruling ends a long-running case that was brought by two nationals from Burundi, who reapplied for asylum in 2018 after their applications were rejected in 2014.
South Africa has recently been hit by a wave of protests against undocumented migrants, with thousands taking to the streets in major cities to demand mass deportations.