World Refugee Survey 2008 - South Africa

Introduction

South Africa hosted about 144,700 refugees and asylum seekers, including about 48,400 Zimbabweans, 24,800 Kinshasa Congolese, 12,900 Somalis, 7,500 Ethiopians, 7,200 Malawians, and 5,900 Angolans. Most were in the 89,000 asylum applicant backlog but 36,700 held refugee status and about 18,900 de facto refugees did not apply, about 11,800 of them Zimbabweans. Some 45,600 applied during the year. Refugees and asylum seekers lived mainly in Johannesburg, Pretoria, Durban, Cape Town, and Port Elizabeth.

The Standing Committee on Refugee Affairs (SCRA) granted more than 1,300 refugees certificates of exemption enabling refugees to apply for permanent residence and UNHCR repatriated nearly a 100 and resettled 28.

Refoulement/Physical Protection

On average, authorities deported about 10,000 Zimbabweans per month for illegal entry. Between January and September alone the total may have been more than 150,000, many of whom Zimbabwean police detained upon their return. Authorities deported some refugees and asylum seekers for common crimes or failure to pay bribes.

In November, a High Court judge released 12 asylum applicants about whom the Department of Home Affairs (DHA) had given it information out of 50 the Government was about to deport the following day. Some of the rest remained at Pollsmoor prison because DHA had failed to issue them documentation as asylum seekers.

Civilians attacked foreigners, especially Somali refugees trading in informal settlements and townships, and police often ignored appeals for help and, in some cases, joined in. Between August 2006 and February 2007, unknown assailants murdered at least 40 Somalis in Western Cape alone in a possible attempt to drive them from the area. In November, a Zimbabwean asylum seeker died of a fractured skull when Linden police threw him into a van. Also in November, a security guard at the Foreshore refugee center assaulted an asylum seeker from Congo-Kinshasa, after which the victim filed a complaint.

In September, the Supreme Court of Appeals (SCA) upheld, and applied to all five national refugee reception centers, a 2006 High Court ruling that officials had acted unconstitutionally and illegally at Rosettenville and Marabastad refugee reception centers by arbitrarily turning away applicants. The court found it "incomprehensible" that the DHA had not hired more reception officers to ease the backlog, ordered the offices to post notices advising rejected applicants of their right to have their applications re-assessed, and ordered the Refugee Directorate to report in two months on progress resolving the backlog.

According to South Africa's 1998 Refugees Act, DHA officers heard claims and issued decisions at the five reception centers. Rejected applicants had 30 days to appeal to the Refugee Appeal Board whereupon the reception office gave them appeal dates and extended their permits for the duration. If the Board rejected the appeal, the applicant could apply to the High Court for review. Applicants could have counsel in both instances.

Under the Refugees Act, SCRA monitored the refugee reception offices and reviewed any case that asylum officers rejected as manifestly unfounded, abusive, or fraudulent. Legal representation before the SCRA was by invitation only.

Many refugees visited the DHA office daily or slept in the queue to obtain residence permits. In November, a Zimbabwean asylum seeker died of starvation queuing for a work permit outside the Cape Town Refugee Centre. Also in November, the DHA launched Operation Umbrella to pursue and deport persons in the country without documents. In December, asylum seekers sleeping outside the DHA office claimed that security guards had burned their personal belongings, including clothing, blankets, and bags.

South Africa was party to the 1951 Convention relating to the Status of Refugees, its 1967 Protocol, and the 1969 Convention governing the Specific Aspects of Refugee Problems in Africa, all without reservation. The 1998 Refugees Act prohibited refusal of entry, expulsion, or extradition of refugees. Its refugee definition included 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."

Detention/Access to Courts

In February, police used stun guns and arrested 27 people, including 6 Somalis, during anti-Somali riots in Motherwell, Port Elizabeth, after a Somali shop owner opened fire on 6 armed robbers and wounded a 15-year-old boy in the process.

Police often arrested foreigners illegally because they did not know how to interpret their permits. Police also arrested asylum seekers, demanded bribes in exchange for their release, and, in some cases, threatened to destroy their documentation. Refugees and asylum seekers commonly bribed DHA officials to allow them to jump from trains headed to the border for deportation.

Between mid-November and mid-December, authorities arrested 400 asylum seekers under Operation Umbrella, including some who could prove they had filed applications with the Home Office. In late November, refugees protested outside DHA offices against the ongoing operation, and the protest turned violent, leading to the arrest of two activists.

Detained refugees shared space with criminals in Pollsmoor prison in Cape Town. The Lindela detention center outside Johannesburg could accommodate 4,000 people but officials deported some 15,000 Zimbabwean migrants from the facility in the first few weeks of July.

By law, the DHA had to provide identity documents to recognized refugees, and it issued some 8,520 identity cards.

Refugees and asylum seekers initiated class actions, seeking asylum and employment. One asylum seeker also filed a complaint at a Cape Town police station that a police van ran over his foot. Officials announced an inquiry into the matter.

Freedom of Movement and Residence

South Africa did not confine refugees to camps, and they were generally free to move throughout the country and live where they chose.

The Constitution's Bill of Rights guaranteed freedom of movement to all persons in South Africa, and the Refugees Act affirmed that this applied to refugees. The Act did not specifically address the right of asylum seekers to freedom of movement but the Government generally respected it.

UNHCR and the Government jointly issued nearly a thousand international travel documents to refugees they determined to be in need of them. The Refugees Act, however, prohibited asylum seekers from traveling outside South Africa without DHA approval. Failure to comply could result in detention upon return until the claim was resolved.

Right to Earn a Livelihood

Although the Refugees Act granted refugees the right to work, it was difficult to do so in the formal sector. Many businesses did not recognize the validity of refugees' documents for employment, as they were red rather than green like the identification booklets of citizens and permanent residents, and the law specifying identification did not include refugee documents. Employers avoided hiring foreign workers without residence permits, fearing government penalties. Consequently, many worked in the informal sector. Refugees with advanced degrees in engineering, medicine, and finance often resorted to entry-level work.

Many Somalis engaged in small businesses, selling snacks, beverages, and clothing, but became targets of xenophobic violence. In the February riots in Motherwell, a crowd destroyed over 30 shops owned by Somalis, following which a number of Somali shopowners requested that the Government compensate their losses, provide them with more protection, and withdraw police officers they suspected of collaborating with local businessmen to undercut Somali businesses. Refugees could gain the necessary permits to start businesses and there were no restrictions prohibiting refugees from acquiring property.

Those who worked in the formal sector benefited from labor legislation and social security because of their contribution to social security programs. In April 2008, a Labor Court ruled that illegal immigrants had the same labor rights as other workers.

Although refugees qualified for worker's compensation, the Government funded them by direct deposit to bank accounts, which many refugees, lacking documentation, could not open. First National Bank allowed refugees to open bank accounts for the first time in 2006.

Public Relief and Education

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

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

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

Some refugees and asylum seekers lived on the streets, outside the DHA offices, at bus stations, construction sites, and self-made shelters. Various churches sheltered homeless refugees. In March, Johannesburg police and a removal company evicted some 100 refugees in urban renewal projects after the SCA rejected their appeal for temporary housing, potentially affecting 70,000 more.

The law restricted 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 included refugees in its 2007-2010 UN Development Assistance Framework (UNDAF). The UNDAF noted 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 aimed to train experts to "support national asylum institutions/mechanisms" and it planned to harmonize laws and systems for asylum seekers, refugees and migrants at the regional level.