ConCourt Delivers Impactful Judgments on Refugees, Tax Records, and Democratization in 2023

In a landmark year for South African justice, the Constitutional Court (ConCourt) handed down a series of pivotal judgments that have reshaped refugee rights, enforced public interest access to tax records, and outlined voter rules for coming elections. With 45 written decisions, the court has underscored its commitment to upholding constitutional values and ensuring the rights of migrants, as well as enhancing transparency in public affairs.

The court vigorously defended the rights of asylum seekers, striking down subsections 22(12) and 22(3) of the amended Refugees Act of 1998 as unconstitutional. These sections created a system in which the legitimacy of asylum seekers hinged on visa renewal rather than the threats they faced at home, violating the international principle of non-refoulement. This principle protects individuals from being returned to countries where they risk persecution. Acting Justice Ashton Schippers' unanimous voice in the judgment set a precedent for the humane treatment of migrants, dislodging bureaucratic hurdles that undermine their right to dignity.

Moreover, the court affirmed this approach in the case of Ethiopian national Beneyam Deselegn Ashebo, who had entered South Africa illegally and later faced possible deportation. Deputy Chief Justice Mandisa Maya emphasized that any foreigner indicating their intention to apply for asylum must be afforded the opportunity to do so, laying the groundwork that no delay in expressing this intention should prevent them from applying for refugee status.

These cases prompted scrutiny of the immigration system and the roll-out of the White Paper on Citizenship, Immigration, and Refugee Protection, which opens a window for reforming legislative frameworks governing migrant rights – a task that the Home Affairs Ministry and stakeholders like the Socio-Economic Rights Institute must approach with diligence.

In a stern rebuke to the Department of Home Affairs, the ConCourt also personally chastised Minister Aaron Motsoaledi and the Director-General for litigation over administratively detaining undocumented foreigners for deportation purposes. This move not only resulted in a personal costs order but projected an accountability norm within litigation proceedings.

Perhaps equally remarkable was the court's handling of access to tax records. In a case driven by the Financial Mail and amaBhungane Centre for Investigative Journalism, the ConCourt struck sections of the Promotion of Access to Information Act (Paia) and the Tax Administration Act that barred access to third-party tax records, deeming them invalid. This decision, primarily influencing legislative changes, signified a stride towards transparency, notably with reference to public figures like former president Jacob Zuma, without compromising the general confidentiality of tax information.

With regards to election preparedness, the court's decree necessitating only 1,000 endorsements for independent candidates eased the entry barrier to elections, aligning with the broader theme of democratization upheld throughout 2023's rulings.

The ConCourt also tackled matters involving Parliament and the status of the former Public Protector Busisiwe Mkhwebane, asserting the necessity for public participation in parliamentary hearings and addressing governance and oversight.

Jason Brickhill of the Socio-Economic Rights Institute pointed out an evolving trend in the ConCourt’s caseload. He highlighted a burgeoning tilt towards private law disputes, signaling a broadened jurisdiction beyond strictly constitutional issues.

The year 2023 for the ConCourt has indeed been far-reaching, and as it continues to solidify its status as the apex court, concerns about equitable legal access gains prominence — a reminder that while the court has made strides for institutional justice, the balance of access between individuals and corporations remains a prevailing issue.