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III. Background

The Aliens Control Act of 19911 was the only piece of legislation regulating the movement of non-nationals into South Africa when, in 1993, South Africa signed a first “Basic Agreement” with UNHCR.2 As detailed by Human Rights Watch in its 1998 report Prohibited Persons,3 the Aliens Control Act dealt with refugees and asylum seekers in an ad hoc manner. Without statutory basis for determining refugee status, procedures were instead contained in internal DHA circulars. The procedures could not readily be challenged in court and there was little recourse to either administrative or judicial appeal.

Although the number of prima facie refugees4 has declined from its peak in the early 1990s, South Africa has, since 1994, experienced a steady increase in the number of individuals seeking asylum. The ratification of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol5 (1951 UN Refugee Convention) and the Organization of African Unity’s 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU)6, as well as the growing number of asylum seekers in the territory, necessitated the creation of a comprehensive legal framework for refugees and asylum seekers in South Africa.

South African civil society long debated legislation that became the Refugees Act No. 130 of 1998 (Refugees Act),7 which did not come into force until its regulations were published in April 2000. The Refugees Act and its regulations define the legal standard for refugee status, establish South Africa’s asylum procedure, and set out the rights and obligations of refugees and asylum seekers. In spite of a comprehensive law, however, many refugees and asylum seekers continue to face significant obstacles to their right to seek and enjoy effective protection in South Africa.8

As of 1999, before the Refugees Act came into force, 54,759 asylum applications had been lodged.9 Out of this number, 8,504 were recognized as refugees, 25,020 were rejected, and 21,295 applications were pending. By end 2004, the provisional number of asylum applications pending according to the UNHCR had risen to 115,224 of which 32,600 were new applications.10 In addition, the Department of Home Affairs granted refugee status to 27,683 asylum seeker applications largely from the Democratic Republic of Congo, Somalia, Angola and Rwanda. This brought the total of the asylum seeker and refugee population to 142,907 by the end of 2004.11 The asylum application backlog makes up a large proportion of this group.

Poor planning and inadequate preparation for the coming into force of the Refugees Act has largely been responsible for the backlog of asylum applications. The government did not adequately manage the transfer of asylum applicants issued under the Aliens Control Act to the new system. Too few immigration officials were hired and trained to administer the Refugees Act.12 DHA and UNHCR implemented a Backlog Project to reduce the number of pending asylum applications issued under the Aliens Control Act between 2000 and 2001. In addition to reducing the number of pending asylum applications, this project was intended to equip DHA with a roster of well-trained refugee affairs officers.13 The UNHCR embarked on another backlog project from August 2005 (see below).


[1] Government of the Republic of South Africa, Aliens Control Act, Act 96 of 1991 (hereafter, “Aliens Control Act”).

[2] Prior to the government’s signing of the 1951 Convention relating to the Status of Refugees, South Africa and UNHCR signed a Basic Agreement (1993) binding the country to observe international refugee norms, such as the right to seek asylum.

[3] Human Rights Watch, Prohibited Persons: Abuse of Undocumented Migrants, Asylum Seekers, and Refugees in South Africa (New York: Human Rights Watch, 1998).

[4] Prima facie refugees are those who are immediately recognized as refugees in the absence of any evidence to the contrary; a practice usually relating to persons fleeing conditions of insecurity and conflict and arrive as part of a large-scale influx.  In such situations it is not always possible for the receiving country to ascertain the claim of refugee status for each and every individual.  See also UNHCR Executive Committee (ExCom) Conclusion No. 22 of 1981 which provides that persons who “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either part of, or the whole of their country of origin or nationality are compelled to seek refuge outside that country,” are asylum seekers who must be “fully protected,” and the fundamental principle of non-refoulement including non-rejection at the frontier¾must be scrupulously observed.”  

[5] 1951 Convention Relating to the Status of Refugees, 189 UNTS 150; and the 1967 Protocol Relating to the Status of Refugees, 606 UNTS 267 (hereafter, “1951 Refugee Convention”).

[6] Organization of African Unity, 1969 Convention Governing the Specific Aspects of Refugee Problems in Africa, 1001 UNTS 45 (hereafter, “OAU Refugee Convention”).

[7] See, for example, the work of the Southern African Migration Project (SAMP), http://www.queensu.ca/samp/; Jeff Handmaker, “No Easy Walk: Advancing Refugee Protection in South Africa,” Africa Today Vol. 48, No. 3, 2001, pp. 91-113; and Michael Barutciski, “The Development of Refugee Law and Policy in South Africa,” International Journal of Refugee Law, Vol. 10 (1998), pp.700-724.

[8] Universal Declaration of Human Rights, article 14.

[9] UNHCR Statistical Yearbook, 2003, pp 318-9.

[10] UNHCR 2004 Global Refugee Trends4 (provisional)—Overview of refugee populations, new arrivals, durable solutions, asylum seekers, statelessness and other persons of concern to the UNHCR, June 2005 pp 5-8.  The statistics can be sourced at:http://www.unhcr.ch/cgi-bin/texis/vtx/events/opendoc.pdf?tbl=STATISTICS&id=42b2834744.

[11] Ibid.

[12] Fedde Groot, UNHCR, “Challenges of the UNHCR’s Programme for Urban Refugees in South Africa,” in Loren B. Landau (ed.), Forced Migrants in the new Johannesburg: Towards a Local Government Response (Johannesburg: Forced Migration Studies Programme, University of Witwatersrand, 2004), p. 38.

[13] Human Rights Watch interview, Mr. Mbilinyi, UNHCR, Pretoria, op cit.


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