Oct 2, 2015 - Alice Brown, a human rights activist, Professor Jonathan ... Dhever of Fasken Martineau and Egon Oswald were finalists. Oswald, a single.
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Humanrightslaw
Refugee rights protection in South Africa MICHAEL ADDANEY AND GERTRUDE MAFOA QUAN
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outh Africa became party to the 1951 Convention relating to the Status of Refugees, the 1967 Protocol Relating to the Status of Refugees and the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in 1995. These instruments are the core international human rights laws that promote and protect the rights of refugees. To make these instruments enforceable at the national level, in 1998 South Africa adopted the Refugees Act 130 of 1998, which was later amended by the Refugees Amendment Act (33 of 2008).
These instruments guarantee the rights that every refugee, irrespective of their status, must enjoy to live decent life. These rights includes inter alia the right to housing, right to work, right to education, right to access the courts, right to freedom of movement within the territory and the right to be issued identity and travel documents to enable refugees to live dignified lives. Since its transition to democracy in 1994, refugees from across the African continent seeking refuge in South Africa have received a mixed reception. Their presence has not only impacted the country’s population dynamics but is also having a visible effect on public attitudes and political rhetoric. Despite the progressive nature of the 1998 Refugees Act, in compliance with international standards, refugees continue to be subject to discrimination, police harassment and xenophobic attitudes (LB Landau & K Jacobsen “Refugees in the new Johannesburg” (2006) 19 Forced Migration Review 44). Another critical factor affecting the protection of refugees has been the increasing xenophobia within public institutions. Over the past decade xenophobia has increasingly become a factor constraining the South African government in its development and implementation of refugee policies. Rising numbers of asylum seekers and refugees coupled with the already tremendous economic and social difficulties faced by the country has brought into question the capacity of government to deal effectively with the number of forced migrants entering or living within South Africa’s borders. A study undertaken by Landau and Jacobsen in 2006, Refugees in the new Johannesburg, confirmed the criticisms of refugee advocates in South Africa on the poor treatment of refugees by the police and the Department of Home Affairs (DHA). More than 67% of respondents indicated that the asylum application process at DHA took at least 18 months, rather than the six months period provided by legislation. Others opined that cases often take three or more years to push their applications through. Many respondents also reported having to pay bribes to DHA officials
just to enter the refugee reception centre. Sadly, the study discovered that refugees are far more likely to be victims of crime than South Africans, with 72% of the respondents or someone they live with having been a victim. The study concludes that rather than helping to protect foreigners, police appear to be contributing to the problem. Indirectly, the action from government, state agencies and local communities forces refugees back to their countries of origin. This puts refugees in a dire and vulnerable position. The circumstance of refugees is succinctly captured by Kondile J in Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) BCLR 339 (CC) as follows: “Refugees are unquestionably a vulnerable group in our society and their plight calls for compassion. Refugees have been forced to flee their homes as a result of persecution, human rights violations and conflict beyond their control. Very often they, or those close to them, have been victims of violence on the basis of very personal attributes such as ethnicity or religion. Added to these experiences is the further trauma associated with displacement to a foreign country.” Conversely, Professor Guy S Goodwin-Gill contends that “whilst asylum is a humane way of assisting victims of persecution and social disorder, appeals based solely upon compassion, solidarity and rights are only occasionally successful because there is awareness that governments will be moved only on their own terms, primarily in the discourse of national interest” (Guy S Goodwin-Gill “The Dynamic of International Refugee Law” (2014) 25 International Journal of Refugee Law 651). Moreover, the African Commission on Human and Peoples’ Rights held in the Institute for Human Rights and Development in Africa vs. Angola case that: “African States are faced with many challenges especially economic. Therefore, these States often resort to radical measures to protect their nationals and their economies from
Addaney
Quan
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Humanrightslaw non-nationals but no matter the circumstances, however, such measures should not be taken at the detriment of the enjoyment of fundamental human rights.” In light of this, the South African government has two options. The first is to find a solution in the form of a strategy that will translate into tangible and concrete projects to put an end to the challenges faced by refugees. The second is to attempt to achieve the impossible by sealing off South Africa’s borders, something no country in the world has been able to achieve. It may be worth a mention that the South African Constitution has been hailed as one of the best the world has ever seen and is anchored on the Universal Declaration of Human Rights, a “Bill of Rights” for the world. As such it has no boundaries and borders and applies to all persons, young and old, weak and strong, rich and poor, the citizen, the non-citizen, the asylum seeker, the refugee and the migrant. Human dignity is one of the fundamental principles of the South African Constitution and this principle must be applied to all persons
residing in its borders, not because they are citizens, but because they are human beings. The recognition of the dignity of others forms the foundation for the protection of their rights. Indeed all other rights are inspired through the recognition of human dignity and from human dignity all other human rights are given meaning. In the words of Nugent JA in the case of Watchenuka and Another v Minister of Home Affairs (2003, para 25): “Human dignity has no nationality. It is inherent in all people – citizens and noncitizens alike – simply because they are human. And while that person happens to be in this country – for whatever reason – it must be respected, and is protected, by s10 of the Bill of Rights.” Finally, human rights lawyers must demonstrate to the South African government that protecting the rights of refugees is not a matter of virtue, but a means of promoting its domestic and regional strategic interests. ◆
Addaney and Quan are masters in human rights candidates at the Centre for Human Rights, University of Pretoria in South Africa.
Pro bono
ProBono.Org’s 2nd Annual Pro Bono Awards Ceremony ERICA EMDON
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roBono.Org hosted the second Pro Bono Awards Ceremony on 17 September. Advocates, attorneys, candidate attorneys, the press, community advice office paralegals and others gathered together at The Hill restaurant at Constitution Hill to celebrate the contribution lawyers are making to the poor and needy through pro bono work. Advocate Thuli Madonsela addressed the audience, stressing the imperative of placing the rule of law at the centre of societal peace and progress, saying that “access to justice, incorporating legal empowerment of the poor, is an essential part of the rule of law.”
This year the award categories were of a qualitative nature, giving nominees the opportunity to showcase interesting cases and projects. Five judges had the difficult task of selecting three candidates in each category which, given the calibre of the entries, was not that simple. Alice Brown, a human rights
activist, Professor Jonathan Klaaren of Wits Law School, Clive RamathibelaSmith, well known radio personality and businessman, Nomboniso Nangu, the Director of the National Association for the Development of Community Advice Offices, and Nic Swart, CEO of the LSSA and LEAD, had to apply their minds to this. In the category of most impactful case, there were three exceptional contenders. Norton Rose SA submitted an entry on how they succeeded in negotiating an extraordinary settlement for a community displaced 19 years ago by the Transkei Sun. The settlement includes a payment of R50m compensation from the state, and an agreement by the hotel group to pay over R4m a year to the community. The second was the well-reported National Key Points case, in which Cliffe Dekker Hofmeyr succeeded in ensuring that information regarding National Key Points was made public. The winner of this category was Webber Wentzel for their Emolument Attachment Orders case, which was heard earlier this year. In the most dedicated and committed individual attorney category, Moray Hathorn of Webber Wentzel was the winner. For the past 16 years he has been tirelessly involved in a wide range of matters having a huge impact on the lives of thousands of poor people and in progressing the law. Sushila Dhever of Fasken Martineau and Egon Oswald were finalists. Oswald, a single
