Opinion piece by Katlego Sesana, a master’s-degree candidate in political studies
from the North-West University (NWU)

Amid the ongoing immigration uncertainty and instability in South Africa, the country is once again confronted with an uncomfortable question: Who gets to have a final say on the immigration policy – is it the elected government that represents the people, or the courts who are custodians of the Constitution? 

This question has become relevant, particularly following the ruling by the Constitutional Court on 7 July 2026 in the case of Scalabrini Centre of Cape Town vs the Minister of Home Affairs. 

As the highest court in the country, the judgement highlighted some provisions of the regulations that govern the Refugees Act to be unconstitutional. At its core, the judgement determined that certain provisions could prevent foreign individuals who are already in the country from accessing the asylum seekers system, primarily due to procedural failures such as illegal entry across the borders of South Africa.  The long-awaited judgement held that claims by asylum seekers should be assessed based on their merits, rather than treating irregular entry as an absolute barrier to the asylum system.

From a legal perspective, the judgement is significant. However, from the political view, it exposes deeper tensions in the constitutional democracy of South Africa. 

In recent months, South Africans led by civil organisations and anti-illegal immigration movements, including March and March and Operation Dudula, have expressed frustrations about the influx of undocumented migration, pressure on public services, the rising levels of unemployment and the competition for already limited economic opportunities. These frustrations have since entered public policy debates. 

However, constitutional supremacy does not operate on rule by the majority alone. In South Africa the executive and parliament are compelled to respond to public demands. Yet, public policy remains subject to constitutional review. As such, the judiciary can invalidate any public policy or government action if it is in conflict with the principles of a constitutional democracy. 

What proves to be difficult in a constitutional democracy is that the majority can win elections, but that does not automatically mean they will win every constitutional argument. In this regard, Lekaba and Motloung (2025) offer an important understanding of this tension. They describe constitutionalism as a central feature of democracy in South Africa. Their analysis demonstrates that the supremacy of the Constitution does not operate in a political vacuum, but rather exists alongside a growing public dissatisfaction with political institutions and therefore demands fundamental changes.

The ongoing frustrations regarding immigration clearly highlight this conundrum. For many South Africans, the debate on immigration is not just a legal debate, especially for those who live in townships, rural and semi-urban areas. This debate is an everyday lived reality. It raises concerns about congested public facilities, informal business, housing, employment, crime and the ability of the State to control its borders. Whether these claims are legally correct is a separate matter. What cannot be ignored is that immigration has become a powerful source of political mobilisation, and to a larger extent political participation.

As a result, these public frustrations have become visible on the streets and across online platforms. From 5 to 8 October 2026, anti-immigration protests in Durban, Soweto and Pretoria West and other locations in the country erupted, with protesters blocking foreigners who wanted to access refugee centres for their claims for asylum to be assessed. This comes after the Department of Home Affairs (DHA) was forced to comply with the ruling issued by the Constitutional Court to allow foreigners to apply for asylum. 

However, the protests in Durban and Soweto escalated into violence, with multiple vehicles being torched and foreign-owned shops looted. The protests were directly linked to the directive issued by the DHA, with protesters demanding stricter action against the influx of undocumented foreign nationals. There is no excuse for violence, but the legitimate concerns behind it should be considered as a warning and the State should not ignore it.

These heightened protests bring debates on constitutional supremacy out of academic discussions and courtrooms and into communities and the streets, where immigration has become a contested socio-political issue. For protesters who believe that the State has for years failed to control its borders, the directive by the DHA may appear to contradict public demand for tighter immigration enforcement. From this point of view, the decision by the DHA to allow foreigners to access the asylum system can be interpreted as a sign of the government adhering to judicial requirements rather than listening to public demands.

However, the legal distinction between allowing an individual to access the asylum system and the granting of permission to legally stay in the country remains fundamental. 

An application for asylum does not mean automatic granting of refugee status, citizenship or permanent residence. As such, any interpretation that suggests otherwise should be treated as misinformation or disinformation. Instead, the ruling by the Constitutional Court should be interpreted as a request to protect and allow foreigners to have access to the asylum system. In this regard, concerns arise when access to the asylum system is viewed as evidence for a weak immigration policy that is aided and abetted by constitutional requirements.  

This is exactly where constitutional supremacy and public demand produce democratic tensions. According to Section 2 of the Constitution of the Republic of South Africa, which establishes the Constitution as the supreme law of the country, the decisions of the government must always comply with the Constitution. Even though citizens can exercise their political power by voting for a government that advocates for their interests, the policies of that government will still be subject to constitutional review. 

This creates a dilemma for a constitutional democracy. On the one hand, the citizens have the right to demand tighter immigration management policies and can also hold elected representatives accountable. On the other hand, the judiciary, led by the Constitutional Court, has the responsibility to protect constitutional rights for citizens and non-citizens alike. When it comes to politically sensitive issues such as the immigration debate, this dilemma can produce conflicts, particularly when judicial decisions are perceived to be against public demand.

However, if the majority of South Africans believe that constitutional supremacy has become too restrictive to their public demands, the Constitution itself does allow for amendments. 

An honest answer to the question posed in the beginning of this opinion piece is therefore that the Constitution does have a final say, but a Constitution that the citizens believe is working against them will not stay supreme for long. Consequently, the necessary changes should be made to suit lived realities. Until then, the current Constitution as it stands remains supreme, and the courts of the land have the power to agree or disagree, even if a significant majority of the public would prefer otherwise.

Katlego Sesana