Minister of Home Affairs and Others v Watchenuka and Another

The first respondent, a Zimbabwean national, entered South Africa with her disabled adult son and applied for asylum under the Refugees Act 130 of 1998. Pending the determination of her asylum application, she was issued with an asylum seeker permit under section 22 of the Act. In terms of the standard conditions contained in Annexure 3 to the Refugee Regulations, the permit prohibited employment and study. The respondent, a trained pharmacy technician with depleted savings, sought permission to work to support herself and her son, while her son had secured a place to study at a Cape Town college. She challenged the constitutionality and lawfulness of the blanket prohibition on employment and study applicable to asylum seekers.

The appeal was dismissed in part. The general prohibition on employment and study contained in the regulations was set aside as unlawful and unconstitutional. However, the order directing the appellants to permit the first respondent to work and her son to study was not upheld; instead, the matter was left for determination by the Standing Committee in accordance with constitutional principles.

This case is a leading authority on the rights of asylum seekers in South Africa. It affirms that asylum seekers are bearers of constitutional rights, including the right to human dignity, and that blanket prohibitions on work and study are unconstitutional. The judgment clarifies the separation of powers within the Refugees Act and limits executive overreach, reinforcing the principle of legality and the requirement for individualized decision-making in refugee administration.