Do South Africa’s laws embrace the interests of migrants?

South Africa’s national legislation incorporates the basic principles of refugee protection, including freedom of movement, the right to work, and access to basic social services. Below, we review some of the programmes put in place by the South African government to combat the effects of xenophobia and address the plight of immigrants.

White Paper on International Migration (WPIM)

Over the 2016/17 period, the Department of Home Affairs produced a White Paper on International Migration (WPIM) which was approved by the Cabinet. The WPIM included plans to set up one stop border centres which would attend to the processing of asylum applications in the border regions, whilst not admitting asylum seekers to the country until their application had been finally adjudicated. However, this was criticised as amounting to the administrative detention of asylum applicants and likely to lead to the creation of shanty towns in border regions where this processing would take place. The WPIM is still in its infancy and will continue to be reviewed by the government in 2018.

Hate Speech Bill

The Department of Justice opened the Hate Speech Bill for comment until 1 December 2016 and many submissions were received. The submissions raised concerns that the Bill would not pass constitutional muster. In view of South Africa’s history of marginalisation and exclusion the Bill needed to consider issues of openness, accountability and transparency. This required the Bill to strike a balance between hate speech, freedom of expression and non-discrimination. The current Hate Speech Bill fails that delicate balancing act in its narrow definition of hate speech. There are many recommendations for the parameters of the Hate Speech Bill to be construed narrowly, in line with the Constitution in order not to unjustifiably infringe on other freedoms. The Bill should also include a range of defences or exemptions such as a defence of truth or public interest to counter a charge of defamation.

Regularisation programmes

South Africa has implemented two regularisation processes directed at Zimbabwean and Lesotho nationals. These processes have been progressive and have recognised the need to find a mechanism to regularise economic migrants who are in SA but are unable to regularise their immigration status.  The Special Dispensation for Zimbabweans Project (DZP) was initially introduced in 2009 and has undergone two incarnations; the first was met with much suspicion and skepticism and resulted in 294, 511 applications and 242, 731 permits granted. The second ran from 2014-2017 and was called the Zimbabwe Special Dispensation Permit (ZSP), applicable to those already in SA and who participated in the first DZP process. In 2017, the Zimbabwe Exemption Permits (ZEP) were launched and open to those already in possession of the ZSP. The new permits will be effective from March 2018 to December 2021.

However, the registration process posed some challenges for some Lesotho nationals due to the requirement to register online and the fact that not all Lesotho nationals wishing to regularise their stay in South Africa had identity documents. One of the key commendable features of the LSP was the amnesty provided to all Lesotho nationals who had previously obtained ID documents fraudulently. These processes recognise that there are significant numbers of undocumented SADC citizens in particular in South Africa who are already part of the work force and who are contributing to the growth of the country. Similar regularisation programmes should be extended to a wider group of persons and a broader range of countries.

This article has been adapted from submissions made before the South African Human Rights Commission’s ‘National Hearing on Cohesion and Xenophobia in South Africa’. The submissions were made on behalf of the Southern Africa Litigation Centre and drafted by Kaajal Ramjathan-Keogh and Walker Syachalinga.

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