Behind the arrests | Part 2: Hundreds of migrants detained during xenophobic violence remain in legal limbo

2019-12-18 06:08
A banner waves outside the Cape Town Methodist Church. (Jenni Evans, News24)

A banner waves outside the Cape Town Methodist Church. (Jenni Evans, News24)

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Newtown, Johannesburg: It is uncharacteristically cold for December, and shoppers have braved the rain, zigzagging from shop to shop as the Christmas season breathes new life into the inner-city economy; an economy dented by a surge of xenophobic violence in September 2019.

The violence has abated, for now, and many traders who hail from outside South Africa have reopened their businesses.

But hundreds of migrants remain trapped in the legal system - swept up during the mass arrests that followed violent looting, despite being victims of the violence. Many more were arrested and deported, allegedly without due process - not because they were violent looters, but because they did not have the proper documentation. Meanwhile, many of those responsible for the violence are free to roam the streets.

The police arrested about 700 people, according to a briefing by ministers in the justice cluster at the time. The government insisted at the time the attacks were not xenophobic and were merely criminal in nature.

At least 185 people found themselves appearing in the Johannesburg Magistrate's Court alone in September on mostly public violence charges. Many of them were denied police bail as the authorities tried to keep migrants behind bars until the violence abated, News24 was told by court officials.

ALSO READ | Behind the arrests: Hundreds of xenophobic attack suspects in custody, but is the "just a crime" approach working?

Wayne Ncube, the acting director for Lawyers for Human Rights (LHR) and head of its strategic litigation programme, said the majority of those arrested were not responsible for the violence, but were victims of it.

"A ridiculously large number of migrants were arrested - close to 500 at one time," Ncube told News24. He said most were sent to the Lindela Repatriation Centre and deported. Some are now involved in criminal trials, but many do not have documentation, so they cannot get bail and their trials cannot proceed.

Ncube calls this "administrative jail".

He said one family who was arrested were victims of the violence - they were kidnapped and dragged along by a looting mob. They were told by the police they were arrested for their own safety, only to discover they were being charged with public violence.

Meanwhile, those who were responsible for the violence and looting were mostly processed, granted bail, and let go, according to Ncube.

He said the State often made use of the doctrine of common purpose to prosecute groups, for example, during protests. But in this case, that approach was not chosen. Instead, the State charged everyone individually, making prosecutions exceptionally difficult, and proper case management, and the law, allegedly fell by the wayside.

Because the police or the National Prosecuting Authority's (NPA) case management systems do not take note of whether cases were related to xenophobic violence, there is no way to judge the criminal justice system's effect on xenophobia on any significant scale.

Government knew

At the time, News24 reported that in spite of the government's denial of xenophobia, an internal briefing document indicated the security cluster was well aware that attacks were on the way.

But police spokesperson Brigadier Vish Naidoo told News24 at the time: "It is not conclusive that these attacks were motivated by anti-foreigner sentiments.

"On the contrary, of the seven people who died during the violence, no more than two were of foreign nationality, the rest were South Africans. So, could this be xenophobic?"

By mid-September, 12 people had been killed.

But a New Frame investigation found many of the South Africans who died were killed protecting migrants, or were caught in the cross-fire. Meanwhile, two migrants were burned beyond recognition.

There are other clues that, deep down, the government, or at least parts of it, knew it was dealing with xenophobia.

In Katlehong, the City of Ekhuruleni converted two community centres into safe houses for hundreds of migrants on the run from the mobs. At least 700 people, including nearly 300 children, sought refuge at the DH Williams Community Centre.

The centre consists of a large auditorium, complete with a large stage, tiered seating, and changing rooms. Blankets and some mattresses stored in one of the changing rooms are reminders of the terrified migrants who sought refuge there. The staff said transport to the centre, as well as meals, blankets, and other necessities were all provided for by the municipality.

These migrants had to leave the centre at the end of September. Staff said all went back to their countries of origin. Or at the very least, this was the message conveyed to those working at the centre.

Ironically, details of these centres were made public in a September 10 statement by the justice cluster ministers titled South Africa is not a xenophobic country.

Xenophobia remains

Many migrants also left the country then, fleeing the xenophobic violence.

A Bangladeshi trader interviewed by News24, who did not want to be named for fear of victimisation, has been in South Africa for six years. He speaks broken English despite all his years living in the country - perhaps an indication of how poorly many migrants have been integrated into South African life.

His shop closed for a week when the attacks broke out.

"It was terrible. It was the worst xenophobia we [have] seen here."

Gesturing around the street, he said through nicotine-stained teeth: "You see these shops? All closed. All closed."

Further down the bustling street, a man who came here from Somalia a decade ago also did not want to be named for fear of being victimised.

"All of us closed our shops. I stayed indoors in my home with my family. We were too scared to go outside for six days. We waited for the violence to stop before we left," he said, pointing upwards to a block of flats nearby.

He added he knew many migrants who had fled the country then.

Difficult to stay 

The spokesperson for the Consortium for Refugees and Migrants in South Africa (Cormsa), Abigail Dawson, said the government appeared to be more interested in seeing migrants and refugees going back to their countries of origin, than helping them to stay in the country legally, or protecting them from prejudice and violence.

In September, the Department of Home Affairs told Parliament it had spent R42m on flights to deport undocumented migrants in the last year alone.

If you are a refugee in South Africa, staying here legally is a bureaucratic and financial nightmare.

Applying for refugee status means travelling to one of just four (often closed) refugee reception offices in the country - an odious and expensive exercise for people who have often arrived in the country, fleeing war and poverty in their home countries, with little resources. The wait for an appointment can be many, many months.

Dawson said the violence that took place in September was an "eruption" of a problem that was always there. She added the mass arrests that took place was a "box ticking" exercise by the state, that showed how the government was more interested in finding ways to deport migrants, than solving the xenophobic crisis in the country. 

Staying here

In downtown Johannesburg, the shops that closed were quickly replaced with new ones. Business is booming, but migrants here know that the xenophobic sentiment never really goes away.

A bulky migrant originally from Nigeria, who also did not want to be named for fear of victimisation, said he had been in South Africa for 20 years. He did not leave in September, although many of his compatriots did. He could not talk for long, he said; the shop was buzzing with shoppers purchasing the weaves and clothes that line every wall.

He said many people also took advantage of the free flights home offered by the government in September because despite years of working in South Africa, they had not been able to afford a flight or bus ticket home, until now.

He said he closed his shop for 10 days in September. But he credits the police with providing him with some protection, saying friendly officers who knew him would call him to tip him off when the mob was approaching.

Why was he not among those who left?

"Prejudice is everywhere," he said cynically. "When I am here, it is xenophobia. When I go home, it is racism and tribalism. Everywhere I go, there it is. You cannot escape it, so what is the point of leaving?"

Ncube said there was no political will to deal with xenophobia, and the mass arrests were essentially the result of the state responding to a problem it helped create. Politicians repeatedly blame migrants for the country's woes, when a growing body of research shows that migrants are not responsible for the country's unemployment crisis, for example. 

Yet the public cries out for solutions to the country's problems, and migrants are easy targets. And once they have left the country, the state will say it is clamping down on criminality. Meanwhile, innocent migrants languish in legal limbo, away from the public eye.

Read more on:    johannesburg  |  crime  |  immigrants  |  xenophobia
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