World Refugee Survey 2009 - South Africa

Introduction

South Africa hosted more than 256,000 refugees and asylum seekers, including about 116,000 Zimbabweans, 33,000 Kinshasa Congolese, 27,000 Somalis, 11,000 Ethiopians, and about 15,000 from Bangladesh, Pakistan, and India. More than 100,000 of them were in the asylum applicant backlog but some 37,000 held refugee status. Some 45,600 applied during the year, including 25,000 to 30,000 Zimbabweans in the border town of Musina in the last half of the year alone but the grant rate of about one and half percent for Zimbabwean applicants in 2006 and 2007 suggest that many whom authorities denied asylum may well have had legitimate need of international protection.

2008 Summary

In January, authorities arrested Refugee activist Braam Hanekom, leader of the leader of People Against Suffering, Suppression, Oppression and Poverty, on charges of riotous behavior at the Foreshore office of the Department of Home Affairs (DHA) after attempting to disperse about 500 Zimbabwean asylum seekers who were queuing up to be included the next day's processing. The following week, authorities arrested 27 asylum seekers for trespassing at the site and reportedly beat several of them. At the end of the month, police looking for illegal immigrants broke into and raided the Central Methodist Church in Johannesburg without a warrant and evicted, arrested, and/or beat nearly 1,500 mostly Zimbabwean migrants, asylum seekers, and some refugees with formal legal status in the country. They also reportedly manhandled the bishop, Paul Verryn, a noted anti-apartheid activist. Many of the asylum seekers had appointments with DHA to apply but the agency failed to issue documentation attesting to their status.

In March, xenophobic mobs killed four and left more than a thousand homeless in at lease six incidents in townships outside Pretoria. In one case, a mob in Brazzaville township beat and forced a Zimbabwean into his home where they burned him alive.

In May, similar violence broke out in Alexandra township near Johannesburg and spread to all but two provinces. In a few weeks, assailants killed about 62 people, injured about 670, and displaced more than 80,000, including refugees and asylum seekers, many of whom also lost their businesses, homes, and possessions. In response, the Government also set up camps in Gauteng and the Western Cape for those who had lost their homes before sending the military to secure their communities. Authorities also arrested 1,300 suspects and brought criminal charges against more than 400 of them.

In June, as the backlog in Zimbabwean asylum applications rose to about 40,000, DHA prepared to make one-day adjudications.

Despite the large number of IDPs and an official request from the Government's National Disaster Management Centre in June, the local UN Country Team decided not to activate the "Cluster Approach" that would have involved the Emergency Relief Coordinator and more formal, unified, and more resourceful international response. The local office of UNHCR reportedly advised against activation because the emergency would not last long enough, the emergency involved many refugees and asylum seekers responsibility for which UNHCR would assume, and the Cluster Approach could lead others to hold UNHCR and other lead agencies accountable for governmental actions. UNHCR did however provide displaced persons with stipends of 500 rand (about $54) or 1,200 rand (about $129) to reintegrate.

In July, DHA issued 6,000 temporary permits that would exempt camp residents in Gauteng from deportation through November. The forms they had to sign for them said that they could not apply for various forms of public assistance, housing, South African identity documents, or passports. Authorities also threatened to expel those who would not sign and removed a number who refused to the Lindela Repatriation Centre. Police arrested and beat a number of those displaced by the violence in Durban near its City Hall area after they stayed there overnight. The South African Police Service injured 23 residents of Glenanda camp when they fired rubber bullets at them at short range. Authorities took more than 700 mostly Congolese refugees who refused to register for the temporary status from the camp to the Lindela repatriation center and held them until the Pretoria High Court ordered their release. A few days later, they arrested and detained 208 with valid documents, charged them, withdrew the charges, and sent them back to Lindela. Most eventually returned to their home countries.

Gauteng and Western Cape authorities said they would begin closing their shelters by August 15, arguing the townships were safe to return to. In early August, however, assailants killed at least five resettled foreigners and the provinces extended the deadlines. DHA conducted rapid refugee status determinations in around Gauteng, rejecting 98 percent and largely denying access to appeal. Authorities expelled at least 1,000 more from the Glenanda camp, south of Johannesburg, when they refused to sign for the temporary cards and threatened to hold the unregistered at Lindela detention centre and then return them to their home countries.

In September, the Constitutional Court ordered authorities to keep temporary shelters open until it could hold a full hearing in November, but Gauteng authorities removed tents from Camp Akasia anyway, leaving about 800 foreigners without shelter and demolished three more camps at Glenanda, Boksburg, and Rand Airport.

In late September and October, government-contracted security forces reportedly dispersed asylum seekers outside the Nyanga Refugee Reception Centre in Cape Town by shooting them with rubber bullets and whipping them. DHA offered to investigate and punish the perpetrators but took no action.

By the end of the year, DHA admitted that the asylum system, used to screen out and further deport economic migrants, failed in addressing the crisis.

The constitutional court ruled that the Government was required to care for asylum seekers and refugees but not for illegal aliens. This prompted provincial governments again to hold summary reviews of hundreds of camp residents' asylum claims, most of whom failed, before closing down the sites by the end of November. Despite the lack of running water, sanitation, or food deliveries, some foreigners refused to leave for fear of reprisal if they returned to their host townships. According to Amnesty International, the accelerated procedures in the Gauteng camp took place without legal advice or assistance or interpreters, a 98 percent rejection rate, low quality decisions including factual errors, and lack of effective access to appeals.

Law and Policy

Refoulement/Physical Protection

Authorities deport Zimbabweans daily for illegal entry regardless of their protection claims and routinely refoule African asylum seekers upon arrival at airports without formal opportunity to apply for protection. Authorities deport other refugees and asylum seekers for common crimes or failure to pay bribes. Many refugees and asylum seekers returned to their countries out of fear of xenophobic violence on the part of South African nationals and harassment and detention by South African officials.

The Refugee Reception Office in Johannesburg, South Africa's largest city, has been closed to new applicants since 2005 despite High Court orders to reopen. Applicants there have to go to Pretoria, where many refugees visit the DHA office daily or sleep in queue for residence permits.

In November, Parliament passed the Refugees Amendment Act of 2008, bringing the definition of "refugee" in South African law in line with the 1951 Convention relating to the Status of Refugees and its Protocol and 1969 Convention governing the Specific Aspects of Refugee Problems in Africa, to all of which South Africa is party, without reservation. The 1998 Refugees Act prohibits refusal of entry, expulsion, or extradition of refugees. Its refugee definition includes individuals forced to leave their countries because of "events seriously disturbing or disrupting public order in either a part or the whole of [that] country."

According to the Refugees Act, DHA officers hear claims and issued decisions at the five reception centers. Rejected applicants have 30 days to appeal to the Refugee Appeal Board whereupon the reception office gives them appeal dates and extends their permits for the duration. If the Board rejects the appeal, the applicant can apply to the High Court for review. Applicants can have counsel in both instances.

Under the Refugees Act, the Standing Committee for Refugee Affairs (SCRA) monitors the refugee reception offices and reviews any case that asylum officers reject as manifestly unfounded, abusive, or fraudulent. Legal representation before the SCRA is by invitation only.

Detention/Access to Courts

Police often arrest foreigners illegally because they do not know how to interpret their permits. Police also arrest asylum seekers, demand bribes in exchange for their release, and, in some cases, threaten to destroy their documentation. Refugees and asylum seekers commonly bribe DHA officials to allow them to jump from trains heading to the border for deportation.

Detained refugees share space with criminals in Pollsmoor prison in Cape Town. The Lindela detention center outside Johannesburg can accommodates 4,000 people but officials put up to 15,000 there at a time.

The 1998 Refugees Act requires DHA to issue documents known as Section 22 cards, after the section of the Act providing for them, to asylum seekers. These indicate the bearers' rights to remain in the country but they are valid for only 30 days and applicants must renew them constantly. DHA also issues recognition certificates valid for two years to recognized refugees, who may then apply for identity and travel documents. The identity documents contain the 13-digit number that banks and many social service organizations recognize but there is a large backlog in issuing them.

Freedom of Movement and Residence

South Africa does not confine refugees to camps, and they are generally free to move throughout the country and live where they choose.

The Constitution's Bill of Rights guarantees freedom of movement to all persons and the Refugees Act affirms that this applies to refugees. The Act does not specifically apply this to asylum seekers but the Government generally allows it.

UNHCR and the Government jointly issue about 1,100 international travel documents per year to refugees they determine to be in need of them. The Refugees Act, however, prohibits asylum seekers from traveling outside of South Africa without DHA approval. Failure to comply can result in detention upon return until the claim is resolved.

Right to Earn a Livelihood

The Refugees Act grants refugees the right to work and the courts have recognized a rights of asylum applicants also to work but it is difficult to do so in the formal sector. Many businesses do not recognize the validity of refugees' documents for employment, as they are red rather than green like the identification booklets of citizens and permanent residents, and the law specifying identification does not include refugee documents. The one to three month duration of asylum applicant documentation combined with the large application backlog and the delayed processing of renewals also effectively restricted their legal employment options. Employers avoid hiring foreign workers without residence permits, fearing government penalties. Consequently, many work in the informal sector. Refugees with advanced degrees in engineering, medicine, and finance often resort to entry-level work.

Many Somalis engage in small businesses, selling snacks, beverages, and clothing, but are targets of xenophobic violence. Refugees can gain the necessary permits to start businesses and there are no restrictions prohibiting them from acquiring property.

Those who work in the formal sector benefit from labor legislation and social security to which they also contribute in taxes. In April, a Labor Court ruled that illegal immigrants have the same labor rights as other workers.

Although refugees qualify for worker's compensation, the Government funds this by direct deposit to beneficiaries' bank accounts, which many refugees, lacking documentation, cannot open.

Public Relief and Education

South Africa generally does not restrict humanitarian agencies from aiding refugees and asylum seekers.

Refugees have the right to the same level of basic medical services as nationals under the Refugees Act. By law, refugees and asylum seekers have access to anti-retroviral treatments on par with nationals but some medical workers illegally turn them away.

Refugees have the same right to education as nationals under the Refugees Act. Refugees who had not obtained identification booklets, however, often have trouble enrolling their children in schools.

Some refugees and asylum seekers live on the streets, outside the DHA offices, at bus stations, construction sites, and self-made shelters. Various churches shelter homeless refugees.

The law restricts public relief to citizens and permanent residents, but a series of lawsuits slowly expanded rights, as in the emergency relief for which Somalis could apply after they lost family members and property in the riots.

The Government includes refugees in its 2007-2010 UN Development Assistance Framework (UNDAF). The UNDAF notes that the particular needs of vulnerable groups, including refugees, "must be given special consideration in the UNDAF" to help South Africa "transform its society into a non-racist, non-sexist, non-exclusionary democracy." It also stated that among its national goals, it aims to train experts to "support national asylum institutions/mechanisms" and to "harmonize laws and systems for asylum seekers, refugees and migrants" at the regional level.