Amid the ongoing immigration uncertainty and instability in South Africa, the country is once again confronted with an uncomfortable question: Who gets to have the final say on immigration policy: the elected government that represents the people or the courts, which are the custodians of the Constitution? This question has become relevant, particularly after the Constitutional Court ruling in Scalabrini Centre of Cape Town versus the Minister of Home Affairs on 7 July 2026.
As the highest court in the country, the judgment declared certain provisions of the regulations governing the Refugees Act unconstitutional.
At its core, the judgment held that certain provisions could prevent foreign individuals in the country from accessing the asylum system, primarily because of procedural failures, such as entering South Africa irregularly.
The long-awaited judgment held that asylum seekers’ claims should be assessed on their merits rather than treating irregular entry as an absolute barrier to the asylum system.
From a legal perspective, the judgment is significant.
Politically, however, it exposes deeper tension in South Africa’s constitutional democracy.
In recent months, South Africans, mobilised by civil organisations and anti-immigration movements, including March and March and Operation Dudula, have expressed frustration about the influx of undocumented migration, pressure on public services, rising unemployment and competition for limited economic opportunities. The frustrations have since entered public policy debates.
However, constitutional supremacy does not operate on majority rule alone. In South Africa, the executive and parliament are compelled to respond to public demands. But public policy remains subject to constitutional review. As such, the judiciary can invalidate any public policy or government action that conflicts with the principles of a constitutional democracy.
A difficulty in a constitutional democracy is that the majority can win elections but that does not automatically mean it will prevail in every constitutional argument.
In this regard, Lekaba and Motloung (2025) offer an important perspective on this tension. They describe constitutionalism as a central feature of South Africa’s democracy. Their analysis demonstrates that the supremacy of the Constitution does not operate in a political vacuum; rather, it exists alongside growing public dissatisfaction with political institutions and therefore creates demands for fundamental changes.
The frustrations over immigration clearly highlight the conundrum. For many South Africans, the debate on immigration is not just a legal debate, especially for those who live in townships, rural areas and semi-urban areas. It is 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.
Whether these claims are legally correct is a separate matter. What cannot be ignored is that immigration has become a powerful driver of political mobilisation and, to a larger extent, political participation.
As a result, the public frustrations have become visible on the streets and across online platforms.
From 5 to 8 October 2026, anti-immigration protests in Durban, Soweto, Pretoria West and other locations across the country erupted, with protesters blocking foreigners seeking access to refugee centres to have their asylum claims assessed.
This comes after the department of home affairs (DHA) was forced to comply with the ruling issued by the Constitutional Court allowing foreign nationals to apply for asylum.
However, the protests in Durban and Soweto escalated into violence, with multiple vehicles set alight and foreign-owned shops looted.
The protests are directly linked to the directive issued by the DHA.
Although protesters are demanding stricter action against the influx of undocumented foreign nationals, there is no excuse for violence.
The legitimate concerns behind the protests, however, should be treated as a warning that the state must not ignore.
The 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 from the DHA may appear to contradict public demands 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 granting permission to remain legally in the country remains fundamental.
An application for asylum does not mean the automatic granting of refugee status, citizenship or permanent residence. As such, any interpretation suggesting otherwise should be treated as misinformation or disinformation.
Instead, the ruling by the Constitutional Court should be inter-preted as a requirement to protect access to the asylum system for foreign nationals.
In this regard, concerns arise when access to the asylum system is viewed as evidence of a weak immigration policy supported by constitutional requirements.
This is exactly where constitutional supremacy and public demand pro-duce democratic tension.
Under section 2 of the Constitution of the Republic of South Africa, the Constitution is the supreme law of the country. Government decisions must therefore always comply with the Constitution.
Even though citizens can exercise their political power by voting for a government that advocates for their interests, that government’s policies will still be subject to constitutional review.
This creates a dilemma for a constitutional democracy.
On one hand, 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.
These rights apply to citizens and non-citizens alike. When it comes to politically sensitive issues such as the immigration debate, the dilemma can produce conflicts, particularly when judicial decisions are perceived to run counter to public demands.
However, if most South Africans believe that constitutional supremacy has become too restrictive of their public demands, the Constitution allows for amendments. As such, an honest answer to the question posed at the beginning of this opinion piece 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.
As a result, 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.