South Africa’s Department of Home Affairs plans to introduce a bill in Parliament by the end of March 2025 to amend the Refugee Act and resolve constitutional flaws identified by the Constitutional Court. This follows a 2023 ruling by the Constitutional Court, which upheld a Western Cape High Court decision declaring parts of the Refugee Act unconstitutional.
Constitutional Court Ruling on the Refugee Act
The court’s decision, handed down in December 2023, confirmed that the current Refugee Act was unconstitutional in its treatment of asylum seekers. Specifically, the Act was deemed invalid because it stated that asylum seekers who failed to renew their visas within a month of expiration would be barred from reapplying, effectively considering them as having abandoned their applications. This clause was found to violate the Constitution, and Parliament was ordered to rectify it.
Home Affairs’ legal advisor, Moses Malekane, provided an update this week to the portfolio committee, noting that the department had already drafted an amendment bill targeting the problematic clauses. The bill is currently undergoing internal consultations, and once finalised, it will be presented to the executive committee for approval before submission to the Minister of Home Affairs.
Aiming for Parliamentary Approval by 2025
Malekane stated that because the amendments are a response to a Constitutional Court mandate, the bill may not be opened for public comment. Once the draft is approved by the executive committee, Cabinet will be asked to approve its introduction to Parliament.
Furthermore, Malekane highlighted the department’s intention to seek exemption from the socio-economic impact assessment process as soon as the bill receives ministerial and committee approval. The department anticipates completing the process in time to table the bill in Parliament by March 2025.
Upcoming One-Stop Border Post Bill
In parallel with the Refugee Act amendment, the department is working on the One-Stop Border Post Bill, as announced by director-general Tommy Makhode. This legislation will streamline cross-border processing by establishing joint border posts with neighbouring countries. The bill aims to create common control zones that will permit both South African and foreign officials to operate under a unified framework for more efficient border management.
Parliamentary legal advisors Lonwabo Sopela and Lehotlo Moshoko expressed their support, affirming the constitutional and procedural validity of the draft bills.
Border Post Public-Private Partnerships Underway
The Home Affairs Department is also progressing with initiatives to develop six strategic border posts through a public-private partnership. Key border crossings, including Beit Bridge, Lebombo, Klopfenstein, Ficksburg-Maseru, and the eSwatini border posts, are expected to benefit from this development.
According to Makhode, bids for this partnership were collected in September 2023, with the evaluation process starting this November. Given the complexity of the agreements involved, the evaluation phase is expected to span 180 days, with an anticipated conclusion around March 2025. Once completed, the department will submit the evaluation report to the National Treasury to commence negotiations with the successful bidders.
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