Legitimate refugees and asylum seekers rights and SA's international obligations in the judicial crosshairs.

2014-09-27 14:56

Prefatory remarks

There is no blanket prohibition,if you ever care to study our laws, against legitimate asylum seekers and refugees from seeking employment in South Africa,provided that their status is being determined by our immigration authorities.Otherwise if an asylum is prevented from seeking and obtaining gainful employment, it puts him/her on the brink of starvation, which informs his condition with humiliation and starvation and degradation. Such a person becomes prey to economic exploitation and attractive to criminal activity.

Our Supreme Court of Appeal recognised this when it laid down the law regarding the rights of asylum seekers and refugees in a judgment handed down on the 25 January 2014.

Please go to the website www.supremecourtofappeal.gov.za and check out the judgment in case of Somali Association of South Africa v Limpopo Department of Economic Development, Environment and Tourism [2014] ZASCA 143 (26 September 2014).

Who knows the trials and tribulations that assylum seekers and refugees undergo daily in South Africa.

It takes almost three, at times five years, before their status is processed and either confirmed or denied. In that period they are often subjected to exploitation by unscrupulous people.

Many of them are taken under the wing of charitable organisations whilst they wait in limbo.

I discovered that many of them are business orientated and quite a few are professionals as well who can hold out on their own if provided with the chance whilst their status and claim for refugee or asylum is being considered.

I met and spoke to a man, who told me he was formerly a lawyer from Somalia, in Durban employed now employed as a car guard.

Its humiliating and offensive to their human dignity that, given our international obligations they should be treated so callously in the interim by the authorities constitutionally entrusted with the task of processing their status claim.

For instance, there is a legal,constitutional and international obligation to protect them from abuse and exploitation by for example, allowing them to conduct business and subsist on their own volition instead of succumbing to exploiters and abusers or being a drain on our economy.

I dont have the stats, but on a few ocassions I saw foreign nationals in court facing criminal charges and, having spoken to one lawyer representing them pro bono, I was told that they were refugees who, having landed in SA could find no support and so turned to criminal elements to subsist instead of begging.

The problems they encounter as they seek to enter the job market, include language difficulties,shortage of meaningful skills and, yes, "xenophobic prejudice", as a result of where they come from.

And so often, the only means of supporting themselves

( remember many of them were self sustaining business people in their countries of origin) is to seek self employment through the establishment of tuck shops or "spaza shops".

The Court recognised that as a result they provide accessible, convenient access to goods such as food and cell-phone airtime in the communities in which they (are) settled.

Importantly "they also sustain themselves and their families with the income they earned from these (legitimate) businesses."

So provided with no or very little protection or help they often trade, albeit illegally, on the streets to members of the public and they are often harassed by police authorities and have their goods confiscated and arrested as well.

These are the types of refugees and assylum seekers I am referring to. Of course, invariably and inevitably there are those economic migrants or parasites who don't deserve the same level of compassion and protection as the former deserve and I am not concerning them.

I reiterate that quite a few are business oriented as well as professionals and who, given the chance, can hold their own given the opportunity.

Why not?

Pay attention that I am referring to them being allowed to legally conduct business and operate in South Africa [whilst their status is being processed by the authorities].

A few months ago,I saw blazing headlines in a Gauteng based but nationally circulating newspaper of police raids reminscent of apartheid era heavy handedness, against street vendors most of whom were such refugees and assylum seekers.

Our Supreme Court of Appeal reminds us of our obligations, especially our government's obligations vis-a-vis refugees and assylum seekers.

If you check out the judgment have referred to supra in which our Supreme Court of Appeal held that asylum seekers and refugees had an entitlement to apply for licences to trade in spaza and tuck-shops , you would understand its reasoning which reflects much wisdom and foreword thinking on the part of our judiciary.

Section 22 of the Constitution was not a bar, it declared, and that the right to dignity was implicated.

It considered the vulnerable position of asylum seekers and refugees in the light of South Africa’s international obligations.

I will not let xenophobists or people lacking the will to engage government and society from holding sway by remaining apathetic or reticent about it.

What is being done to them is so wrong and unacceptable.

Read this judgment on the website of www.saflii.org.za for yourself.

Don't take my word or feelings for it.

Saber Ahmed Jazbhay

27.9.2014

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