South Africa: Societal treatment of foreigners from other African countries, in particular from the Democratic Republic of Congo (DRC); access to equality courts; availability of state protection (2004-2007)
| Publisher | Canada: Immigration and Refugee Board of Canada |
| Author | Research Directorate, Immigration and Refugee Board of Canada, Ottawa |
| Publication Date | 29 March 2007 |
| Citation / Document Symbol | ZAF102483.E |
| Cite as | Canada: Immigration and Refugee Board of Canada, South Africa: Societal treatment of foreigners from other African countries, in particular from the Democratic Republic of Congo (DRC); access to equality courts; availability of state protection (2004-2007), 29 March 2007, ZAF102483.E, available at: https://www.refworld.org/docid/469cd69c20.html [accessed 4 June 2023] |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
In its 2004 report to the United Nations (UN) Committee on the Elimination of Racial Discrimination (CERD), the government of South Africa acknowledges that xenophobia is a problem (South Africa 2 Dec. 2004, para. 145). The government's report explains that immigrants and asylum seekers are easily identifiable among the local population as they do not speak the same languages, speak English with different accents, and can be visually distinguished from South Africans (ibid.). The report describes that in some instances African foreigners known colloquially as "makwere-kwere,"
... have been necklaced [execution by having a gasoline-filled rubber tire forced around the arms and torso and set on fire], or have had their houses torched and been driven out of communities, because of suspicion within the local community that they were criminals. Some have been thrown to their deaths from trains, while police dogs savaged three illegal Mozambicans as part of an illegal "training" exercise. (ibid., para. 146; see also US 6 Mar. 2006, Sec. 5)
In its report on public hearings conducted as part of South Africa's "Roll Back Xenophobia" campaign, the South African Human Rights Commission (SAHRC), an independent government body (SAHRC June 2006, 54), notes that several studies have found South Africa to be "an extremely xenophobic society" (ibid. 3 Nov. 2004, 22; ibid. 28 Oct. 2004, 1). Non-nationals reportedly experience "systematic discrimination, social exclusion and political alienation" (ibid. 3 Nov. 2004, 27). According to the report, immigrants from other African countries are particularly targeted for racial discrimination (ibid.).
Xenophobia is reportedly perpetuated by perceptions that the country is "overrun" with non-nationals and that foreigners are a strain on public services and pose a threat to the economy (SAHRC 3 Nov. 2004, 23, 25; South Africa 2 Dec. 2004, para. 156). Several sources note that foreigners are perceived as competition for scarce employment opportunities (ibid., 24; SAHRC 28 Oct. 2004; Mail and Guardian 28 Jan. 2007; South Africa 2 Dec. 2004, para. 146) and housing (UN 7 Aug. 2006, para. 6.), and as being involved in criminal activity (SAHRC 3 Nov. 2004, 24; ibid. 28 Oct. 2004; ibid. June 2006, 20; Mail and Guardian 28 Jan. 2007; South Africa 2 Dec. 2004, para. 146). Similarly, Time Europe reports that non-nationals are "routinely blamed for the high crime rates, the growing illegal drug trade, financial scams and rising unemployment" (17 Apr. 2005).
With respect to immigrants' perceived criminality, the SAHRC notes that non-nationals are "disproportionately" victims of crime (SAHRC 28 Oct. 2004, 1; ibid. June 2006, 21), while a Mail and Guardian news article, citing official records, states that non-nationals make up only three percent of the country's incarcerated population (Mail and Guardian 28 Jan. 2007).
Immigrants from the Democratic Republic of Congo (DRC) in South Africa
In 22 March 2007 correspondence with the Research Directorate, the Director of the Forced Migration Studies Programme at the University of Witwatersrand, located in Johannesburg, who has published extensively on the treatment of migrants, said:
... almost all foreigners in the country – regardless of refugee status – experience discrimination and harassment from bus drivers, people on the street, landlords, and the police. In addition, given the problems of getting adequate documentation from the Department of Home Affairs and xenophobia within the public sector, they experience difficulty in accessing those services to which they have rights: health care, education, and legal advice. These problems are only aggravated by the difficulties of language: South Africa has 11 national languages but these do not include French, Swahili, or Lingala. That said, there is no evidence that the Congolese are particularly targeted. Indeed, there seems to be far greater resentment against Nigerians (and other West Africans) and, increasingly, Zimbabweans. All of these groups are subject to general levels of harassment and are occasionally attacked. Since the Congolese tend to congregate in urban centres, they have largely escaped the township violence that has most affected people from neighbouring countries and, over the past year, Somali refugees.
An April 2005 paper published by the University of Witwatersrand on Congolese nationals residing in South Africa, notes that Congolese immigrants and refugees have engaged in public protest against xenophobia (Amisi and Ballard Apr. 2005, 6). The paper describes Congolese nationals as maintaining strong connections with their ethnic origins and resisting assimilation out of necessity, given the "unwelcoming" environment in South Africa (ibid., 17). Congolese nationals interviewed for the paper noted that practicing Christianity and speaking a South African language helped garner acceptance (ibid., 24). The paper comments more generally that "attacks, aggression and name-calling" are daily occurrences for refugees (ibid., 23).
Equality courts
South Africa's Promotion of Equality and Prevention of Unfair Discrimination Act (2000) recognizes, in its preamble, that "systemic inequalities and unfair discrimination remain deeply embedded in social structure, practices and attitudes" (South Africa 9 Feb. 2000). Article 24 of the act specifies that the state and all persons are responsible for upholding and promoting equality (ibid.). Article 6 of the Act prohibits discrimination on the basis of race and Article 7 outlaws: a) the circulation of racist propaganda, b) activities that perpetuate racial exclusion, c) rules or practices that uphold one group's control by excluding persons belonging to other groups, d) the differential quality of services provided to members of a particular racial group, and e) denying a person access to opportunities or failing to accommodate a person's needs on the grounds of race (ibid.).
Under the act, magistrate's courts and High Courts throughout South Africa are mandated to act as "equality courts" (ibid., Art. 16), which are empowered to hold inquiries into whether discrimination against the complainant has taken place (ibid., Art. 21). Equality courts are empowered to respond to cases of discrimination with a wide range of orders; for example, that parties to a dispute make a settlement, that damages be awarded, that steps be taken to stop discriminatory practices or that the case be submitted for criminal proceedings (ibid.).
The Director of the Forced Migration Studies Programme at the University of Witwatersrand in Johannesburg stated in 23 March 2007 correspondence with the Research Directorate that he did not know if foreign nationals could access equality courts. He did, however, note that legally recognized refugees and permanent residents should, theoretically, have access to the courts if their papers are in order (Director 23 Mar. 2007). He noted two cases where Lawyers for Human Rights, the South-African non-governmental organization (NGO), filed discrimination complaints on behalf of groups of refugees (ibid.). In one of the cases, the court ruled that it was constitutional for the private security sector to exclude refugees from employment (ibid.; see also Business Day 13 Dec. 2006), although, while dismissing the case, the presiding judges simultaneously warned against xenophobia (ibid.).
Government efforts to eliminate racial discrimination
The United Nations (UN) High Commissioner for Refugees (UNHCR), the SAHRC and South Africa's National Consortium on Refugee Affairs (NCRA) convened in 1998 to launch South Africa's "Roll Back Xenophobia" campaign (SAHRC 3 Nov. 2004, 41; UN 7 Aug. 2006, para. 6; South Africa 2 Dec. 2004, para. 93). The campaign has held workshops on xenophobia, including a programme that educated members of the media on migration (SAHRC 3 Nov. 2004, 41). The campaign has also published material informing migrants of their rights and cooperated in national and international lobbying efforts (ibid., 42).
A December 2006 news article reports that South Africa's Department of Home Affairs created a counter-xenophobia unit (Baltimore Sun 3 Dec. 2006). The unit is reportedly mandated with increasing dialogue between communities, training law enforcement and immigration officers and engaging with civil society and the private sector (ibid.). George Masanabo, the unit's chief, is quoted as saying the unit's task is "insurmountable" (ibid.).
In November 2004, the SAHRC and the Parliamentary Portfolio Committee on Foreign Affairs held open hearings on xenophobia and rights abuses experienced by foreigners in South Africa (AI 2005). The report issued by the SAHRC and the Parliamentary Portfolio Committee on Foreign Affairs following the open hearings notes that non-governmental organizations had taken the lead in campaigning against xenophobia (SAHRC 3 Nov. 2004, 47). The report noted that the government made numerous commitments to uphold the rights of refugees and migrants, including ratifying international laws that protect their rights, enacting national legislation, and participating in conferences on migrant rights (SAHRC 3 Nov. 2004, 43, 50). Participants in the SAHRC's open hearings, however, expressed that the governments' implementation of these commitments was "sporadic and inconsistent" (SAHRC 3 Nov. 2004, 43). UNHCR's written submission to the open hearings notes that although South Africa's president has openly condemned xenophobia, only a small number of parliamentarians and cabinet ministers have publicly agreed with the president (SAHRC 3 Nov. 2004, 44).
In its 2004 report to the UN Committee on the Elimination of Racial Discrimination (CERD), the government of South Africa concludes that "much more work needs to be done" to protect migrants and asylum-seekers from discrimination (South Africa 2 Dec. 2004, para. 152). Members of the CERD said that the government needed to target racial discrimination against black non-nationals "more vigorously" (UN 7 Aug. 2006).
A January 2007 Reuters news article cites a leaked copy of an African Peer Review Mechanism (APRM) report on South Africa, which was to be presented at an African Union (AU) summit, that identifies xenophobia (among other issues) as a serious problem (Reuters 29 Jan. 2007). The report was, according to the article, taken off the AU summit agenda, following what the government of South Africa said were "factual errors" in its content (ibid.).
This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of additional sources consulted in researching this Information Request.
References
Amisi, Baruti and Richard Ballard. April 2005. "In the Absence of Citizenship: Congolese Refugees Struggle and Organisation in South Africa." Forced Migration Working Paper Series (N° 16). University of Witwatersrand [Johannesburg, South Africa]
Amnesty International (AI). 2005. "South Africa." Amnesty International Report 2005.
Baltimore Sun. 3 December 2006. Scott Calvert. "Foreigners Feel the Violence of South Africa Xenophobia It's 'Us Versus Them' Mentality That Stirs Bitterness, Officials Struggling With Immigration Woes." (Post Gazette/Factiva)
Business Day [Rosebank, South Africa]. 13 December 2006. "Top Judges Warn of Xenophobia Danger." (The Financial Times/Factiva)
Director of Forced Migration Studies Programme, University of Witwatersrand, Johannesburg, South Africa. 22 March 2007. Correspondence.
_____ . 22 March 2007. Correspondence
Mail and Guardian [Johannesburg]. 28 January 2007. "Rise in Xenophobia Tarnishes SA's Image." (ISI Emerging Markets Africawire/Factiva)
Reuters. 29 January 2007. Marie-Louise Gumuchian and John Chiahemen. "Controversial S. Africa Report Off Summit Agenda." (Factiva)
South Africa. 9 February 2000. Government Gazette. Vol. 416 No. 20876. Act No. 4, 2000, Promotion of Equality and Prevention of Unfair Discrimination Act, 2000.
_____ . 2 December 2004. United Nations (UN) Committee on the Elimination of Racial Discrimination. Reports Submitted by States Parties Under Article 9 of the Convention:Third Period Reports of States Parties Due in 2004 – South Africa. (CERD/C/461/Add.3 19 May 2005)
South African Human Rights Commission (SAHRC). June 2006. Loren B. Landau; Kaajal Ramjathan-Keogh, Gayatri Singh. Shadow Report on South Africa's Compliance With the Provisions of the Internaitonal Convention Against All Forms of Racial Discrimination.
_____ . 3 November 2004. Loren B. Landau; Kaajal Ramjathan-Keogh, Gayatri Singh. Report: Open Hearings on Xenophobia and Problems Related to It.
_____ . 28 October 2004. Xenophobia and Problems Relating to It.
Time Europe. 17 April 2005. Simon Robinson. "The New Face of Prejudice: Xenophobia Knows no Color in the New South Africa."
United States (US). 6 March 2007. Department of State. "South Africa." Country Reports on Human Rights Practices for 2006.
Additional Sources Consulted
Oral sources, including: Lawyers for Human Rights (LHR), The National Consortium on Refugee Affairs (NCRA), the South African Law Commission, the South African Legal Resource Centre (SALRC), and Thembo Lesizwe did not provide information to the Research Directorate within the time constraints of this Response.
Internet sites, including: AfriMap; African Union; AllAfrica; Amnesty International (AI); Centre for Violence and Reconciliation (CSVR); British Broadcasting Corporation (BBC); European Country of Origin Information Network (ecoi.net); Freedom House; Human Rights Watch (HRW); Lawyers for Human Rights South Africa; National Consortium on Refugee Affairs (NCRA); Office of the United Nations (UN) High Commissioner for Refugees (UNHCR); Reliefweb; United Kingdom Home Office; UN Integrated Regional Information Networks (IRIN); U.S. Committee for Refugees and Immigrants (USCRI).
