The Constitution has the last word, for now
For ordinary South Africans, the question is no longer abstract: when the courts and the government appear to pull in different directions on immigration, whose voice counts? That question moved from lecture halls into the streets after the Constitutional Court ruled on 7 July 2026 in the matter of Scalabrini Centre of Cape Town versus the Minister of Home Affairs. The answer matters for everyone who relies on public services, seeks work, or simply wants to know that the rules of the country are being applied fairly.
The judgment itself was narrow and legal in character. As the highest court in the land, the Constitutional Court declared certain provisions of the regulations governing the Refugees Act unconstitutional. At its core, the ruling held that those provisions could shut foreign individuals out of the asylum system for procedural reasons, chiefly because they had entered South Africa irregularly. The long-awaited judgment determined that asylum claims should be assessed on their merits, rather than treating irregular entry as an absolute barrier to the system.
For the public, the practical effect is that the Department of Home Affairs was compelled to comply with the ruling and allow foreign nationals to apply for asylum. That directive is what set the country alight, quite literally in places. From 5 to 8 October 2026, anti-immigration protests erupted in Durban, Soweto, Pretoria West and other locations across the country, with protesters blocking foreigners seeking access to refugee centres to have their claims assessed. In Durban and Soweto the protests escalated into violence, with multiple vehicles set alight and foreign-owned shops looted.
The anger did not come from nowhere. In recent months, South Africans mobilised by civil organisations and anti-immigration movements, including March and March and Operation Dudula, have voiced frustration about the influx of undocumented migration, pressure on public services, rising unemployment and competition for limited economic opportunities. For many, particularly those living in townships, rural areas and semi-urban areas, immigration is not a legal debate but an everyday reality. It raises concerns about congested public facilities, informal businesses, housing, employment, crime and the ability of the state to control its borders. Those frustrations have entered public policy debates and become a powerful driver of political mobilisation and, to a large extent, political participation, visible both on the streets and across online platforms.
Whether every claim made in that heat is legally correct is a separate matter. What cannot be ignored is that the concerns behind the protests should be treated as a warning the state must not ignore. At the same time, there is no excuse for violence, whatever the depth of the grievance.
Here the constitutional architecture becomes decisive. Under section 2 of the Constitution of the Republic of South Africa, the Constitution is the supreme law of the country, and government decisions must always comply with it. Citizens may vote for a government that advocates for their interests, but that government’s policies remain subject to constitutional review. The judiciary can invalidate any public policy or state action that conflicts with the principles of a constitutional democracy. The difficulty is plain: a majority can win elections, but that does not automatically mean it will prevail in every constitutional argument.
Lekaba and Motloung (2025) offer a useful perspective on this tension. They describe constitutionalism as a central feature of South Africa’s democracy, and their analysis shows that the supremacy of the Constitution does not operate in a political vacuum. It exists alongside growing public dissatisfaction with political institutions, and that combination creates demands for fundamental change.
For protesters who believe the state has failed for years to control its borders, the Home Affairs directive may look like a government adhering to judicial requirements rather than listening to public demands. Yet a legal distinction remains fundamental: allowing an individual to access the asylum system is not the same as granting permission to remain in the country. An application for asylum does not mean the automatic granting of refugee status, citizenship or permanent residence. Any interpretation suggesting otherwise should be treated as misinformation or disinformation. The ruling should instead be read as a requirement to protect access to the asylum system for foreign nationals, whose constitutional rights, like those of citizens, the courts are obliged to protect.
This is precisely where constitutional supremacy and public demand produce democratic tension. On one hand, citizens have the right to demand tighter immigration management and can hold elected representatives accountable. On the other, the judiciary, led by the Constitutional Court, carries the responsibility to protect constitutional rights for citizens and non-citizens alike. On politically sensitive issues such as immigration, that dilemma can produce conflict, especially when judicial decisions are perceived to run counter to public demands.
There is, however, a democratic outlet. If most South Africans come to believe that constitutional supremacy has become too restrictive of their public demands, the Constitution allows for amendments. An honest answer to the question posed at the outset, then, is that the Constitution does have the final say, but a Constitution that citizens believe is working against them will not remain supreme for long. Necessary changes should be made to suit lived realities. Until then, the 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 is a master’s student in political science at North-West University (Mahikeng), with research interests in South African politics, political institutions, governance, constitutionalism and public policy. His current research focuses on South Africa’s evolving political landscape following the 2024 general election.