SA seeks to suspend ConCourt asylum ruling

In its attempts to prevent another round of violent anti-immigration protests, sparked by a recent Constitutional Court ruling that sections of the country's Refugees Act was unconstitutional, South Africa (SA) plans to now ask the courts for a supervisory order to guide its response to the judgment, notes Legalbrief. SA's Justice Minister Mmamoloko Kubayi yesterday raised the possibility that the order could allow for a suspension period to give the government time to prepare to implement the ruling. Anti-immigration groups have seized on the resulting rush of asylum applications at Home Affairs offices to incite protests in the run-up to the local government elections on 4 November. News24 reports that the military was deployed in Durban over the weekend after protesters cut a swathe of destruction through the city, prompting KwaZulu-Natal (KZN) Premier Thami Ntuli to acknowledge that local police were overwhelmed. A South African National Defence Force (SANDF) deployment reportedly on its way to KZN to monitor anti-illegal immigrant protests is reported to also have been sent to deal with any potential violence that may follow former President Jacob Zuma’s (possible) death. The SANDF has not confirmed this as a reason for the deployment, or commented on the claim as yet. The Citizen reports that Zuma's party, the Mkhonto we Sizwe Party, said any speculation of this nature ‘can cause unnecessary anxiety, fuel political uncertainty, and undermine public confidence. Any claims connecting military deployment to President Zuma’s health or death should be supported by credible, verifiable evidence and responsibly contextualised, it said.

Kubayi said the government’s decision was taken upon legal advice sought in response to the court’s unanimous ruling in Scalabrini Centre of Cape Town and Another v Minister of Home Affairs and Others, in which it confirmed a High Court ruling that four sections of the Refugees Act are unconstitutional and invalid. ‘Following a detailed legal consultation, we have been duly advised that government can approach the courts to seek a supervisory order in this regard. A supervisory order, in practical terms, would enable the court to retain oversight of the implementation process and to provide guidance on how the order should be operationalised,’ the Minister said at a briefing by the Inter-Ministerial Committee (IMC) on Migration, which she chairs. News24 notes that Kubayi said approaching the court would allow the government to avoid administrative disruption while ensuring that the rights of asylum seekers recognised by the courts are realised in a progressive but meaningful way.

Police have arres­ted 30 people in con­nec­tion with last week’s viol­ent anti-migrant protests, reports Business Day. Twenty-five of the 30 arrests were made in KZN, includ­ing the alleged ring lead­ers of a plot to dis­rupt a planned foot­ball match in Durban, said Kubayi. The other five arrests were made in Gauteng. Kubayi said the Depart­ment of Home Affairs planned to intro­duce a new online sys­tem for asylum seekers on 10 Novem­ber, which would provide applic­ants with an appoint­ment at a refugee recep­tion office and a receipt reflect­ing their applic­a­tion. Law enforce­ment agen­cies would be instruc­ted not to detain or deport asylum seekers who were in pos­ses­sion of valid asylum applic­a­tion receipts, she said. Home Affairs Min­is­ter Leon Schreiber said the new asylum applic­a­tion sys­tem would include indi­vidu­als’ bio­met­ric details to reduce the scope for fraud.

Anti-foreigner violence also erupted outside SA's Constitutional Court on Friday. It follows the now-withdrawn directive the Department of Home Affairs issued late last month, effectively compelling refugee reception offices to accept asylum applications in line with the top court's judgment. An estimated 300 people gathered outside the Constitutional Court on Friday. More than one person had attempted to enter the premises with a panga, while remnants of burnt tyres and a torched vehicle were visible. The court building was under lockdown amid a heavy police presence until the protesters eventually handed over a memorandum, and dispersed, making their way to the Home Affairs offices in the city centre. News24 reports that they demanded a response to the memorandum within seven days. Freedom Under Law (FUL), a South African NGO that promotes constitutionalism, the rule of law and judicial independence, has strongly condemned the incident. It said for any court to have to pause its operations due to violent actions aimed at it, must be condemned in the strongest terms. 'These violent actions are a direct attack on the rule of law and on our constitutional democracy. They represent nothing less than an attempt to intimidate and undermine the judiciary by fuelling populist protests against it,' said FUL executive officer Judith February.

As violent anti-immigration protests swept through Soweto, Johannesburg and Durban, the Inter-ministerial Committee (IMC) on Migration moved to quell public disquiet driven by social media as well as rising tensions at several refugee centres over the implications of the recent Constitutional Court judgment on asylum seekers and the Refugees Act.  During the protests, homes were set alight, cars were torched, while foreigners and locals were accused of assault. As reported in Legalbrief Africa, the Constitutional Court in July ruled that refugees and asylum seekers must be given the opportunity to access processing centres, regardless of whether they entered SA illegally. News24 reports that the restrictions prevented claims from being assessed on their merits – effectively reopening the asylum system to applicants previously barred on procedural grounds. The judgment was followed by a Home Affairs directive for refugee reception offices to accept new applicants. The March and March anti-foreigner movement disrupted operations at the Durban Refugee Reception Centre, demanding that officials stop processing asylum applications.

Meanwhile, the Department of Employment & Labour has clarified that the proposed amendments to the Employment Services Amendment Bill do not give new employment rights or automatic citizenship to refugees. This comes after statements and discussions circulated on social media regarding the proposed amendments to the Bill, which sparked debate about laws for foreign nationals, refugees, and asylum seekers. ‘These claims are incorrect and do not reflect the purpose or effect of the proposed amendments,’ the department said. BusinessTech reports that it stressed that the proposed amendments do not change the existing immigration requirements or employment regulations in SA. Instead, the updates were proposed to align statutory definitions with current legislation, like the Immigration Act, to ensure legal consistency. In a Daily Maverick analysis, Mondli Makanya notes that the 30 June date, which March and March set as a deadline for undocumented migrants to leave SA, was just the symbolic peak of their campaign, but they never stopped. ‘Jacinta Ngobese-Zuma, Phakel’umthakathi Ndabandaba (leaders of anti-immigration organisations) and their mobs of ruffians have since June continued their crusade against foreign nationals living in this country. They claim they have been targeting those who are illegally here and are a burden to society, but it has been totally indiscriminate. Before and after 30 June these gangs have been going on human hunts, banging on doors and residences in search of foreigners.’

The latest round of violent protests come just after the AU’s Human Rights Commission rejected claims that SA is inherently xenophobic despite a resurgence of attacks on foreigners this year. TimesLIVE reports that the African Commission on Human and Peoples’ Rights coupled the assessment with criticism of vigilantism and weak accountability, calling for stronger protection of migrants. The assessment follows a visit to SA from 28 September to 2 October, during which the delegation gathered information through meetings with government officials, independent institutions, civil society and UN representatives, and visits to Lindela repatriation centre and a youth detention facility. After observing challenges during its mission in the country, it ‘rejected any suggestion that SA is inherently xenophobic or Afro-phobic or unique in experiencing incidents of xenophobia or Afrophobia’. The commission commended migrant rights protections and government action against intimidation, but flagged political scapegoating and vigilantes blocking services.