The rights of foreigners in South Africa

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A key and growing issue in the world today, as it has always been, is the movement of people.

Migration, and terrorism-related-concerns dominate media internationally. Every terror attack brings more ‘keep them out’ language and in many countries, immigration fuels political parties’ electoral prospects.

Governance and the administration of human affairs is managed through nation states and has been since 1648 (Peace of Westphalia). There are many who argue that the nation state is not serving human rights and development optimally.

People move across borders and internally within states for a variety of reasons. Push factors are love and/or family, safety and security (to escape wars), for financial benefits, for advancement of careers, for religious or ideological reasons or beliefs. Where they go or attempt to go is also based on numerous considerations. Principally family unity or promises of safe and better futures for children are pull factors.

The Supreme Court of Appeal has recognised: “Human dignity has no nationality. It is inherent in all people, citizens and non-citizens alike simply because they are human.” This sentiment is not entirely different to Exodus 12:49 “There shall be one law for the native and for the stranger who sojourns among you.” In other words the rights guaranteed in Constitution and the law apply to all persons whenever they are either in South Africa, or outside South Africa, but are affected by conduct of the South African government.
Over the last two decades I have advised and represented many individuals in the immigration/refugee context in South Africa and other jurisdictions. Clergy (rabbis, Imams and priests), East European exotic dancers, an alleged Al Qaeda operative fleeing the late Colonel Gaddafi’s terror, alleged Chinese triads, Kurds fleeing Turkey, impoverished Africans trying to earn a living as security guards, wealthy Israeli diamond merchants, South American musicians, United States scientists, transgender, lesbian and gay running from persecution, foreign children attempting to join their South African parents or siblings and ‘allegedly illegal’ Zimbabweans detained for months without trial have been among my clients.

In South Africa I have regularly had only positive experiences with regard to my and my family’s citizenship/passport issues. Yet my foreigner clients routinely have only had nightmare experiences. Their files get lost, their applications are rejected years later without proper consideration. The reasons given demonstrate that the adjudicator was considering another (different) application. The documentation, including financials supplied were not understood, properly or at all. More often than not the process followed fell far short of requirements of the law. And when the process was challenged in court the government vigorously opposed at great expense to the tax payer.

Indeed in the case of a DRC refugee the SCA has, in a frustrated tone, lamented: “…Once it became apparent that Ms Dekoba claimed not to have been given an appeal hearing, that claim should have been fully investigated by the Department. Why then did the Department not immediately make arrangements for her to have the appeal and ensure that she would be present and appropriately assisted…? Had they done so instead of claiming that her rights had been exhausted there would have been no need for this litigation and Ms Dekoba’s refugee status would long since have been resolved. Instead, over five years after her appeal was due to be heard, like a game of snakes and ladders, she finds herself back where she was on 17 February 2009, awaiting a hearing of her appeal. In the meantime her son is now seven years old and presumably should have started his school career. All that could easily have been avoided had the Department’s officials taken a practical and sensible view of matters instead of engaging in costly and, as it turns out, fruitless litigation. This is not what we are entitled to expect from our public servants.”

In a slightly different context: although in South Africa the death penalty is unconstitutional, Home Affairs officials have had no difficulty in deporting or attempting to deport persons to face the death penalty in the US and Botswana. This governmental conduct has been held by the Constitutional Court to be constitutionally unacceptable.

It has been up to the courts to right the numerous wrongs committed by government departments time and again. The South African courts have stood up to their task admirably in both the immigration and refugee context. The immigration laws apply to foreigners who wish to either live in South Africa permanently and temporarily. The applicable legislative framework is generally rational and welcoming. In the immigration context proper provision is made for family unification and the encouragement of needed goods, finances and skills to be imported. Refugee law, on the other hand, is geared towards protection of (a) those outside their own countries, and who have a well-founded fear of persecution by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his origin and is unable or unwilling to avail himself or herself of the protection of that country or (b) owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order. The Refugee laws adequately give effect to South Africa’s international refugee obligations.

After World War II, the successful war powers decided that it was necessary to adopt internationally binding treaties to protect human rights. The most significant was the Refugees Convention (Geneva) of 1951. The idea was to impose obligations on States to provide protection to, for example, Jewish persons fleeing the horrors of Nazi Germany. States would not be permitted to turn back persons fleeing from being shoved into gas chambers. South Africa is a party to all refugee treaties, and has obligations to protect those escaping persecution.

What is of interest is that although South Africa has a well-developed set of laws and protections available why have government officials over such a long period of time and so consistently been so intransigent? It is hard to understand. An educated guess is that the government bureaucracy enforcing the race laws of apartheid inherited the task of administering the immigration and refugee laws. In doing so they continued the unfortunate superior attitude to the other. So foreigners have become the disentitled and marginalised black persons in democratic and free South Africa. Under apartheid the Nationalists were above those not classified white. A foreigner is now the untermensch. This development is not entirely dissimilar to developments all over the world. Perhaps this xenophobic attitude will change for the better as world order starts, as it must, transform towards a global perspective.

Anton Katz SC is a practicing advocate at the Cape Bar and is a member of the United Nations Human Rights Council Working Group on Mercenaries.

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