NARROW RULE
ROSHAN JAINATH|Published
I CAME to the Scalabrini judgment the way many people come to a rumour, which is to say that I first heard what it supposedly did long before I read a word of what it actually said.
Social media told me that the borders were gone, that South Africa had been handed to the world, and that every foreign face was now a threat. The posts were certain. The comments were furious. The judgment itself was nowhere in sight.
So I read it. I read Scalabrini Centre of Cape Town v Minister of Home Affairs, handed down on July 7, and I read it slowly, because a court judgment is not a slogan and it does not fit into a shareable picture.
I am not a lawyer, and I do not pretend to be one. I am a reader. I checked my reading against people who know constitutional law far better than I do. I wanted to know whether the country had been given away in a courtroom, as the posts claimed, and I wanted to know what the court had actually ordered and what it had left untouched.
What I found was a court dealing with a narrow rule in the Refugees Act, a rule that required asylum seekers who had entered or remained in the country unlawfully to prove good cause before their claims could even be considered.
Under that rule, a person fleeing a militia could be shut out for using the wrong border post or for arriving at a reception office a few days late. No one would ever ask whether death waited for that person at home. The rule was technical in form, but cruel in effect, because it allowed the manner of arrival to decide the fate of a person before the reason for arrival was ever heard.
The Constitutional Court, acting unanimously, said that this could not stand. Before South Africa sends a person back, it must first ask whether that person faces persecution. That is the heart of the judgment. Hear the claim, test the claim, and then decide.
What the judgment did not do is just as important, and it is the part that the angry posts never mention. The court did not abolish our borders. It did not repeal our immigration laws. It did not declare every illegal entrant a refugee. It did not legalise undocumented migrants. It did not hand out citizenship or permanent residence. It did not order that every asylum claim must succeed. Not one of those things appears anywhere in the judgment.
A claim can still fail. A failed claimant can still be removed. Criminals and security threats can still be excluded and deported where the law permits. Nothing in the judgment prevents the state from doing any of that. What the judgment prevents is blind rejection, the kind that turns a border official into a judge and a reception desk into a grave.
It is also worth understanding why irregular entry cannot settle the matter by itself. People running from persecution do not queue for visas. They do not collect certified documents. They do not book convenient flights. They run. How a person crossed the border tells you nothing about what awaits that person if we send them back.
Then there is the judgment that the outrage posts never quote.
In Director General, Home Affairs v Irankunda, decided in May, the very same court ruled in favour of Home Affairs. Once an asylum claim has been finally rejected, the applicant cannot keep lodging fresh applications on the same grounds and restarting the clock. The court that is accused of throwing open the borders sided with the department when the law stood with the department.
The principle across both judgments is plain. You are entitled to have a genuine claim heard. You are not entitled to game the system forever.
If people want someone to blame for the chaos, the court has already named a culprit.
In Scalabrini, it threw out the department's sweeping and unsupported claims about Afghan and Bangladeshi nationals and human trafficking. It condemned the gross ineptitude with which the department runs the asylum system. The problem was never a judge in Braamfontein. The problem is a state that cannot decide a claim in reasonable time.
So by all means, debate immigration. Debate border control. Debate fraud, capacity, security and deportation. Demand an asylum system that decides claims in months, not years. Demand borders that are properly managed. Demand that fraud is caught early. Demand that people with no lawful right to remain are removed according to law. Those are serious demands, and they deserve serious answers.
But do not invent a judgment the Constitutional Court never delivered and then use it to turn your neighbours into enemies. Constitutional government asks more of us than shouting foreigner at strangers. It asks us to read.
Roshan Jainath is a community activist and writer.
** The views expressed do not necessarily reflect the views of IOL or post.co.za