SA judge halts deportations as UN urges ban
Publish date: 31 August 2026
Issue Number: 1192
Diary: IBA Legalbrief Africa
Category: Immigration
A South African judge has barred deportations of undocumented foreign nationals, while the UN has called for vigilante groups in the country to be banned, and the African Union (AU) has formally been urged to act on the ongoing illegal immigrant sentiment in SA to preserve solidarity on the continent, notes Legalbrief. The Gauteng High Court (Johannesburg) has been inundated with urgent applications from undocumented foreign nationals challenging their deportations, a surge Judge Mandlenkosi Motha described as the 'aftershock' of March and March’s Abahambe (They must leave) campaign. GroundUp reports that between 17 and 21 August, nearly 60 matters were placed on Motha’s motion roll, with 21 proceeding. Most involved Ethiopian, Congolese and Nigerian nationals detained at Lindela Repatriation Centre who had not been interviewed by the Refugee Reception Office (RRO). In his judgment, Motha rejected the practice of releasing undocumented migrants back into society only to face re‑arrest, calling it 'the height of folly'. He said such 'catch and release' procedures were undignified, fostered corruption, and exposed vulnerable individuals to exploitation. 'The expression of an intention to apply for asylum is no reason to release an undocumented foreign national back into society under the hope that within 10 or 15 days they will present themselves to the RRO,' he said. The court barred the deportations and ordered Home Affairs to deploy immigration and refugee officials to Lindela or transport detainees to the nearest RRO for processing.
The ruling follows the Constitutional Court’s July decision that asylum seekers cannot be deported before accessing the asylum system. GroundUp reports the judgment struck down sections of the Refugees Act requiring transit visas, finding the provisions unconstitutional and inconsistent with the principle of non‑refoulement. Motha noted, however, that the apex court left lower courts in a 'Catch‑22' by failing to define what a 'merits‑based determination' entails. Motha also cautioned against courts becoming echo chambers dominated by well‑resourced NGOs, noting that grassroots organisations such as Operation Dudula and March and March were absent from the hearings despite representing significant public sentiment. 'To ignore the views of the impoverished and downtrodden members of society does not augur well for the future,' he warned. The respondents were ordered to pay the costs of all applications.
A UN committee has called on SA to prohibit and dismantle organised racist vigilante groups, citing at least four migrant killings and the displacement of at least 50 000 migrants amid a wave of xenophobic violence since early 2026. According to the Mail & Guardian, the Committee on the Elimination of Racial Discrimination (CERD) raised concerns about inadequate policing and insufficient accountability for attacks, unlawful evictions and home raids targeting migrants, refugees and asylum seekers. Its decision, adopted on 21 August and publicised on 27 August, adds international scrutiny to the government’s response after earlier warnings from African human rights authorities and a domestic court order requiring action against xenophobic conduct. CERD specifically named the Insizwa Nobunsizwa Development Foundation and March and March movement in expressing concern about racist hate speech and harmful stereotypes targeting migrants, particularly on the internet and social media. The committee called for measures to prevent the formation of organised vigilante groups responsible for racial discrimination, hate speech and hate crimes and to prohibit and dismantle such organisations. The committee highlighted reports of abductions, looting, destruction of migrants’ property and businesses, unlawful evictions by landlords, identity checks and home raids.
Nigeria's President has demanded urgent action to sustain Africa's solidarity and unity at yesterday’s 21st Extraordinary African Union (AU) Summit, reports Premium Times. President Bola Tinubu has formally reported the recurring xenophobic and Afrophobic attacks against Africans and other nationals in SA to the AU, warning that the incidents undermine the continent's solidarity, unity and peaceful coexistence. Specifically, he requested prompt collective action from the continent's leaders, including the placement of this matter on the agenda for the 40th Ordinary Session of the Assembly. The Nigerian leader made the nation's position known in a message delivered by his deputy, Vice-President Kashim Shettima, at the 21st Extraordinary Session of the Assembly of the AU in Luanda, Angola. The President urged African leaders to reaffirm their commitment to the safety, protection and dignity of all African nationals. ‘While recognising South Africa's sovereign right to enforce its immigration laws and acknowledging its contributions to the continent, Nigeria stresses that such attacks undermine African solidarity, unity and peaceful coexistence, and require urgent collective attention.’ ‘It is on this note that Nigeria calls on this august Assembly to place the matter on the agenda of the upcoming 40th Ordinary Session of the AU Assembly, scheduled for January 2027, for consideration and appropriate action,’ he declared. Tinubu called for stronger continental efforts to combat xenophobia and Afrophobia, stressing that dialogue, preventive diplomacy, and collective action remained essential to preserving African unity.
The South African Government’s decision to apply immigration laws and close loopholes – long overdue in my opinion – has not gone down well with some governments on the continent. Some perceive this as Trumpian in nature, while Ghana’s government went a step further in petitioning the AU, observes journalist Fred Khumalo. ‘On the face of it, this might seem hostile, but Ghana’s petition is not merely justified – it’s a vital duty of Pan-African stewardship,’ Khumalo writes in News24. He notes at the heart of Ghana’s intervention is an urgent concern for human safety and continental solidarity. ‘Sporadic outbreaks of violence targeting African migrants endanger lives, threaten small businesses, and erode the mutual trust essential for projects like the African Continental Free Trade Area,’ Khumalo explains. He argues that by framing these flare-ups as an ‘urgent matter of continental interest’, Accra rightly underscores that the rights of African nationals cannot stop at national borders. Under the AU Constitutive Act and the African Charter on Human and Peoples’ Rights, member states commit to safeguarding the dignity, liberty, and human rights of everyone residing within their jurisdiction. ‘When foreign nationals face physical danger simply because of their origin, it challenges the legal and moral obligations shared by all signatory states,’ Khumalo writes. He recalls when March and March announced undocumented foreign nationals should vacate the country by 30 July, hundreds of Malawians fled to the consulate for safety. On sporadic occasions, some of them have been taken in buses to Lindela, the transit camp where foreigners get stationed before they are sent to their home countries. However, two months later, Malawians are still squatting outside their consulate. He notes this is a clear violation of human rights from all perspectives.
Khumalo argues Malawian authorities have shirked their responsibility and the South African Government has not lived up to the letter and spirit of the AU’s African Charter on Human and Peoples’ Rights. Rather than pursuing contentious legal litigation, Ghana’s petition outlines a structured, diplomatic path focused on preventative continental governance,’ he explains. Ghana is asking the AU to place xenophobic violence on the agenda of AU Summits, to strengthen AU monitoring of member states’ human rights compliance, to deploy an official AU fact-finding mission to investigate root causes and to facilitate AU-led dialogue initiatives to foster pan-African unity. Khumalo believes these requested actions demonstrate a measured and constructive approach. He notes that Pretoria, through the Department of International Relations & Co-operation, has cautioned against isolating single nations. ‘South African authorities highlight that law enforcement has moved to condemn violence and arrest perpetrators, arguing tensions stem from broader, systemic issues – such as economic anxieties, high unemployment, and continental migration pressures – rather than state-sanctioned hostility,’ he writes in News24. SA advocates for a holistic continental discussion on the ‘push and pull factors of migration’. Khumalo argues Pretoria’s position underscores exactly why an AU-level dialogue is essential. ‘Addressing migration pressures, socio-economic strain, and border management requires shared responsibility across origin, transit, and destination states,’ he explains. He argues Ghana’s intervention is the spur Pretoria needs to review and properly implement and monitor its immigration programme. ‘Ghana’s request for formal AU involvement provides the exact multilateral platform needed to bridge these perspectives, to bring about shared responsibility across origin, transit and destination states. Elevating this issue to Addis Ababa doesn’t mean pointing fingers at SA. It means equipping the continent to solve a shared, systemic challenge together,’ Khumalo concludes.
