The Helen Suzman Foundation has welcomed the ruling by the Western Cape High Court, which declared that certain provisions of the Refugee Act No. 30 of 1998 are invalid and unconstitutional.
The judgment follows an application by the Scalabrini Centre for Cape Town that sought an order declaring sections 4(1)(f), 4(1)(h), 4(1)(i), and 21(1B) of the Refugees Act No.130 1998, and regulations 8(1)(c)(i), 8(2), 8(3) and 8(4) of the Refugees Regulations 2019 unconstitutional.
In its court papers, the centre argued that the act opens up the risk of sending applicants for refugee status in South Africa back to unsafe countries, before their applications have been properly determined by the Department of Home Affairs.
The order will now have to be confirmed by the Constitutional Court and trigger an amendment by the national assembly as per the timeframe to be given by the same court.
The Helen Suzman Foundation (HSF) joined the court battle as amicus curiae (friend of the court) to make submissions on how the impugned provisions negatively impact the rights of children of asylum seekers.
In its judgment, the high court agreed with HSF, stating that “the impugned provisions are not capable of an interpretation that protects the best interests and dignity of children in their own right. In fact, children have no say in determination at all.”
Moreover, the court agreed with HSF’s position that the impugned provisions are not consistent with standards set out in the United Nations Convention on the Rights of the Children and the African Charter on the Rights and Welfare of the Child, which guarantee the right for the child to have his/her own best interests taken as a primary consideration during application of asylum by his or her parents.
In a statement after the court victory, the HSF said it sees this judgment as not only a victory for the children of asylum seekers but also more consistent with the spirit of the constitution in protecting the rights of a particularly vulnerable group of persons like children.
