The precarious position of foreigners in South Africa  

By Tyla Dallas, Manager of Constitutional Programmes at the FW de Klerk Foundation.  

Article 4 of the African Charter on Human and Peoples’ Rights states:  

“Every human being shall be entitled to respect for his life and the integrity of his person.” 

There is reason for deep concern over the growing crisis confronting undocumented African refugees in South Africa. 

There have been several outbursts of xenophobic violence in South Africa since 1994.  At least 67 refugees died in xenophobic violence between 2000 and 2008.   There were further episodes in 2015 and 2019 – which led some African countries to repatriate some of their citizens. 

Nobody knows how many refugees there are in South Africa.  Estimate vary from 2 to 4 million.  According to the United Nations International Organization for Migration the percentage of South Africa’s population who were born outside the country increased from 2,8% in 2005 to 7% – or 4 million –  in 2019.  Some of this number would have official status of some kind – but this means that there are probably at least 3 million undocumented refugees in the country – making South Africa the largest recipient of refugees in the African continent. 

A number of recent developments point to an imminent crisis: 

• 182 000 Zimbabweans – many of whom have been in South Africa for more than 10 years – face the prospect of having to leave the country before the end of the year.  This is because their Zimbabwean Special Permits – in terms of which they were allowed to reside in South Africa – have been withdrawn.  This confronts the people involved with and enormous personal crisis.  As the Helen Suzman Foundation has pointed out many of them “have married South African nationals or have children who hold South African identification and travel documents.  The minister’s decision (to withdraw the permits) accordingly threatens to break up families and displace people, if impelements”.  The expatriation of these Zimbabweans would also have serious implications for the businesses that employ them.   
• The COVID pandemic has contributed to an unsustainable increase in unemployment – which now stands at 46% (expanded definition).  An opinion survey in 2018 revealed that 62% of South Africans believed (probably incorrectly) that illegal immigrants were taking jobs from South Africans – and many also thought that they were disproportionately responsible for crime. 
• Changes to legislation – such as the Refugee Act and Immigration Act – have seen asylum seekers no longer afforded the right to work and study unless specifically granted.  Refugees are prohibited from engaging in political activities, and are subject to blanket exclusions from working in certain sectors of the economy without the ‘golden goose egg’- a permanent residency permit.  
• At its policy conference in July, the ANC  called for the further  amendment of the Immigration Act to remove spousal and relative visas, as according to it- “there is no rational basis to link marriage and/or [a] form of relationship (relative) to the immigration factors”.  

 

All this resulted less than a month ago, in a letter that United Nations special rapporteurs wrote to International Relations Minister Naledi Pandor, stating: “without urgent action from the government of South Africa to curb the scapegoating of migrants and refugees, and the widespread violence and intimidation against these groups, we are deeply concerned that the country is on the precipice of explosive violence.”   In particular, the letter raised serious concerns regarding  hate-crimes targeting foreigners and their businesses, numerous changes to the system of issuing permits and violent vigilante groups such as Operation Dudula.  

The UN Refugee Agency defines a refugee as “someone who has been forced to flee his or her country because of persecution, war or violence.” It goes on to say, “a refugee has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or membership in a particular social group [and] most likely, cannot return home or are afraid to do so.”  

The UN report went further to note that the escalating violence is “often racialised, targeting low-income black foreigners and South African citizens accused of being “too black” to be local.” The government has until the end of this month to respond- but judging by the initial reaction by some state officials we can be sure South Africa will continue to downplay this issue and attack any member of civil society who dare say otherwise.  

However, South Africa has clear international and national obligations regarding the treatment of refugees.   As a member state to the African Union, South Africa is bound to uphold the African Charter which contains reciprocal obligations- the responsibility to ensure the life and integrity of a foreign nationals.  

Apart from this, the Constitution protects the basic rights of everyone who lives in South Africa.  Most fundamental rights should also be enjoyed by refugees.  The Helen Suzman Foundation and the Zimbawean Immigration Federation have decided to challenge the withdrawal of the Zimbabwean Special Permits in Court. 

Immigration presents a challenge to countries throughout the world  – and it can be argued that South Africa has done more than its fair share in extending hospitality to refugees.  However,  curtailing the limited rights and opportunities available to foreigners is not the appropriate response.  It would serve only to perpetuate the scapegoating of refugees  for the state of our economy, our unsustainable unemployment rate and the lack of adequate services and resources.  

It  would also fail to address the barriers within the Department of Home Affairs that are preventing foreigners from obtaining a legal basis to remain.  Incompetence and inefficiency in the Department have created  enormous obstacles for asylum seekers and refugees in their efforts to navigate the administrative burden of getting a permit.  

The government should heed the clear warning of the UN rapporteurs.  Special steps should be taken to prevent another wave of xenophobia.  The decision to repatriate Zimbabwean Special Permit Holders should be reconsidered in the light of the significant contribution they make to our economy and the rights they are supposed to enjoy in terms of our constitution.  We should have learned from our troubled past the unacceptability of disrupting communities on the basis of their identity and of dividing their families.   The removal of these people will have absolutely no impact on South Africa’s unsustainable unemployment – nor will it address the broader problems of the 3 million refugees in South Africa.  The solution to these problems – like so many of the other challenges that confront South Africa – lies in the adoption of policies that will ensure high levels of sustained economic growth and that will restore the competence and integrity of governance.   The solution also lies in the scrupulous observation of our Constitution and the rights that it ensures for everyone who lives in South Africa – including refugees. 

 It is now for our courts to decide how – and whether – these rights can best be protected in the case of the Zimbabwean Special Permit holders.