Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others

The Scalabrini Centre of Cape Town and its Trustees (the applicants) brought an urgent application for interim relief pending a constitutional challenge to certain provisions of the Refugees Act 130 of 1998 and its Regulations. The applicants contended that asylum seekers wishing to approach a Refugee Reception Office (RRO) must first obtain an appointment slip, often requiring a wait of six to eight months. When eventually granted access, the first interview is conducted by immigration officers under s 21(1B) of the Act, limited to questions of condonation and procedure rather than the merits of the asylum claim. If the asylum seeker fails this interview, they are arrested, detained, and brought before a court to initiate deportation. The applicants argued that almost all new asylum seekers attending RROs are refused the right to apply for asylum and are arrested for deportation, and that the challenged provisions effectively barred asylum seekers from the refugee system based solely on adverse immigration status without considering the merits of their claims. The respondents disputed these factual allegations as hypothetical, though the applicants provided five actual case examples with confirmatory affidavits. The respondents proposed a settlement in which they would issue instructions not to arrest or deport foreign nationals who indicated an intention to apply for asylum pending determination of their application, but this was rejected by the applicants.

• Whether the applicants established a prima facie right to interim relief interdicting the implementation of the challenged provisions of the Refugees Act and Regulations pending a constitutional challenge.
• Whether the challenged provisions (ss 4(1)(f), 4(1)(h), 4(1)(i), and 21(1B) of the Refugees Act and Regulations 8(1)(c)(i), 8(2), 8(3), and 8(4)) offend the principle of non-refoulement as enshrined in s 2 of the Refugees Act and the Constitution.
• Whether the court could grant an interim interdict restraining the exercise of statutory power by the executive in light of the separation of powers doctrine as articulated in OUTA and EFF.
• Whether the Constitutional Court's obiter dicta in Ashebo v Minister of Home Affairs regarding the compatibility of the challenged provisions with the principle of non-refoulement should be followed.
• Whether foreign nationals who are illegally in South Africa and indicate an intention to apply for asylum are entitled to be released from detention and not arrested pending the finalisation of their asylum applications.

1. The respondents were interdicted from initiating any process to deport any foreign national present in the Republic who has indicated an intention to apply for asylum in terms of s 21(1)(b) of the Refugees Act. 2. The interdict is to endure pending determination of the Part B relief in the main application. 3. Costs incurred in seeking the interim relief are costs in the cause of the main application. 4. The main application (Part B) was set down for hearing on the semi-urgent roll on 27 February 2025, with a timetable for delivery of the record, further affidavits, and heads of argument.

Where the Constitutional Court has previously made findings (even obiter) that particular statutory provisions do not offend fundamental constitutional principles such as non-refoulement, a single judge of the High Court will not readily grant an interim interdict suspending those provisions pending a constitutional challenge, unless the applicant can demonstrate 'in the clearest terms' that the separation of powers between the judiciary and the executive can be disregarded. The court is bound by the principle in OUTA that a temporary restraint against the exercise of statutory power may be granted only in the clearest of cases after careful consideration of separation of powers harm. Furthermore, the court held that the criminal law must take its course regarding the arrest and detention of illegal foreigners who evince an intention to apply for asylum, and that the State is not obliged to release such persons from detention but must facilitate an opportunity for them to show good cause for their illegal entry or presence.

The court made extensive obiter comments on the conduct of litigation by both parties. It criticised both parties for disregarding the rules relating to the contents of affidavits in motion proceedings, noting that affidavits should not contain argumentative matter, unnecessary references to case law, or legal opinions on domestic law. The court commented that 'the manner in which the litigation has thus far been conducted leaves much to be desired' and that the disregard for the rules displayed a 'lack of discipline'. The court also noted that the main application had not progressed for four months because the applicants had focused all their attention on interim relief and had not taken steps to compel the respondents to furnish the rule 53 record. The court expressed the view that it was unfortunate that a challenge of considerable constitutional importance was proceeding 'at a snail's pace'.

This case illustrates the interaction between the doctrine of separation of powers and interim interdicts against the implementation of legislation pending constitutional challenges. It confirms that obiter dicta of the Constitutional Court carry significant persuasive force for lower courts when considering whether to grant interim relief that would restrain the executive from exercising statutory powers. The case also reinforces the principle that the criminal law must take its course regarding illegal foreigners who express an intention to apply for asylum, following the Constitutional Court's decision in Ashebo. It demonstrates the high threshold for obtaining interim interdicts against the executive in constitutional matters, particularly where the Constitutional Court has already expressed a view on the compatibility of the impugned provisions with constitutional principles.