Developing story: the full bench hears argument on Thursday 29 October 2026 and no date for judgment has been given.

A full bench of the Gauteng High Court in Johannesburg will hear arguments on Thursday on whether people who say they want to apply for asylum can be held in detention, after two judges reached opposite conclusions on the question.

Judge President Aubrey Ledwaba convened the full bench and has put all pending immigration matters on hold until it rules. Its decision will determine how a July Constitutional Court ruling, in a case brought by the Scalabrini Centre of Cape Town, is applied in practice.

Two judges, two answers

Judge Stuart Wilson ordered that detainees who say they want to apply for asylum be released immediately. Judge Mandlenkosi Motha held that such people should not be deported but may remain in detention, and directed that they be processed at Lindela or the nearest Refugee Reception Office.

The Constitutional Court found in July that 2020 laws created an "unlawful procedural barrier" to asylum by requiring undocumented entrants to show good cause before entering the asylum system. The full bench must decide how that finding applies to people already in detention.

What the parties argue

  • The Department of Home Affairs says detention is lawful and that Refugees Act protections apply only after a formal application, not a stated intention to apply. It admits it lacks the capacity to process applications and said of proposals for same-day or five-day processing: "The evidence shows that this cannot be done."
  • March and March, an anti-immigration movement, argues that releasing undocumented people would cause "chaos in the administration of justice" and that contraventions of the Immigration Act are serious offences.
  • The Wits Law Clinic argues that detention is unlawful.
  • The Consortium for Refugees and Migrants in South Africa and Refugee Social Services say applicants face "administrative paralysis and bureaucratic inertia" and that public opinion is no basis for bypassing the law.
  • Kopanang Africa Against Xenophobia and the Scalabrini Centre argue that asylum seekers should be treated as presumptive refugees and that the Immigration Act permits detention only ahead of deportation.
  • The UN refugee agency, UNHCR, says administrative difficulties are real but "require workable arrangements", and that a claimant's freedom cannot depend on the department's capacity to arrange transport.

The capacity problem

Figures put before the court show the scale of the backlog. On 5 October about 2,549 people presented at Refugee Reception Offices, which have a combined capacity of about 104 applications a day. Only 82 applications could be lodged that day and 786 appointments were handed out, some stretching to February 2027.

The department reopened the offices, which had been effectively closed for six years, and then withdrew that decision, citing operational capacity, safety and national interest. Protests by March and March led to violence at offices in Durban and Pretoria. The department also says it is not accepting applications from people it considers to have entered the country for non-asylum reasons, or who applied only after being arrested and detained.

What we do not yet know

  • When the full bench will hand down judgment.
  • How many people are currently in detention and affected by the dispute; the available coverage does not give a figure.
  • Whether the department's position on who it will accept applies to people already detained.