Abenezer Jekamo v Minister of Home Affairs: From Scalabrini to the Full Court

Madubanya & Baloyi Attorneys Inc. is presently acting for Mr Abenezer Jekamo in proceedings that have become part of an important developing chapter in South African asylum and immigration law.

On 10 September 2026, the Judge President of the Gauteng Division referred a series of significant legal questions concerning asylum seekers and immigration detention to a Full Court of the High Court.

Importantly for our firm and our client, Abenezer Jekamo v Minister of Home Affairs, Case No. 2026-220414, has been designated as the consolidated electronic case file for the Full Court proceedings. The Full Court will hear the matter on 29 October 2026.

This is how we arrived here.

It Started With Scalabrini

On 7 July 2026, the Constitutional Court delivered judgment in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others (CCT 126/25) [2026] ZACC 30.

In the weeks that followed, an important question arose in the High Court: what happens when a person already detained under the Immigration Act expresses an intention to seek asylum?

Must that person be released while the asylum process is facilitated, or may Home Affairs lawfully continue the detention while facilitating access to the asylum system?

Two recent Gauteng High Court judgments — Mnamo and Others v Minister of Home Affairs and Others [2026] ZAGPJHC 948 (25 August 2026) and Ered v Minister of Home Affairs and Another (Reasons) (2026/163100) [2026] ZAGPJHC 970 (2 September 2026) — adopted differing approaches.

The disagreement became significant enough for the Judge President to intervene. His directive expressly records that “conflicting approaches have emerged” concerning the consequences of Scalabrini for undocumented foreign nationals in detention who express an intention to seek asylum.

Now the Full Court Must Decide

The questions referred to the Full Court go to the heart of the relationship between immigration enforcement, personal liberty and refugee protection.

Among them is whether a detained person who expresses an intention to seek asylum is entitled to immediate release; whether aspects of the Constitutional Court's reasoning in Ashebo v Minister of Home Affairs and Others [2023] ZACC 16; 2023 (5) SA 382 (CC) survive Scalabrini; the continued relevance of Ruta v Minister of Home Affairs [2018] ZACC 52; 2019 (2) SA 329 (CC); the effect of non-refoulement; and the obligations resting upon Home Affairs once an intention to seek asylum is communicated.

These questions reach far beyond the circumstances of a single litigant. Indeed, the Judge President has recognised their constitutional importance and invited interested organisations and persons to seek admission as amici curiae.

The outcome therefore has the potential to provide significant guidance on how courts, Home Affairs officials and practitioners approach detained persons who seek access to South Africa's asylum system.

And Our Client's Matter Is Part of That Journey

For Madubanya & Baloyi Attorneys Inc., this litigation is particularly significant.

We entered these proceedings to advance and protect the interests of our client. His matter now finds itself within litigation capable of contributing to the development of an important area of South African law.

The Judge President has designated Abenezer Jekamo v Minister of Home Affairs as the consolidated electronic case file for the Full Court proceedings, and the matter will proceed before the Full Court on 29 October 2026.

Where the litigation ultimately leads remains for the courts to determine. What is clear is that the questions now before the Full Court concern issues of considerable legal and constitutional significance — issues capable of shaping the future approach to asylum, immigration detention and access to refugee protection in South Africa.

And M&B will be there, representing our client as that next chapter is argued.

This M&B Litigation Journal is published for general information and public legal education and does not constitute legal advice. The proceedings remain pending. Nothing in this publication predicts or pre-empts the determination of the Court. Confidential and privileged information concerning our client and the conduct of the litigation has deliberately been excluded.