Constitutional Hill

On immigrants, refugees and those camps

There seems to have been some talk about setting up refugee camps for those people displaced by the xenophobic violence around the country. This has been rejected by the government because it argues that it has a duty in terms of the Constitution and International law to integrate refugees and not to lock them up in camps.

In this debate there seems to be much confusion.

One should distinguish between refugees (who have certain rights in terms of International Law and domestic legislation) and undocumented immigrants (who have rights under the Constitution but do not have the same rights as refugees in terms of legislation and International Law).

Only a very small number of the people affected by the violence are actually refugees with the legal status of refugees. We have a legal obligation to integrate them into our society.

Most of the reported 5 million foreigners from elswehere in Africa entered South Africa illigally or are now staying here illegally and they are not refugees in the legal sense – although they are often seen as economic refugees.

One can only be legally classified as a refugee if a determination is made that one has a ¨well founded fear of persecution¨ on the basis of one´s political affiliations, ethnic or religiouis origin, sexual orientation and the like. Only a small number of people now living in South Africa without the right papers would qualify for this if they applied.

Because our borders are not well guarded and because of the vast differences in economic opportunities available in neighbouring countries and in South Africa, many people flood to South Africa. They are often industrious and ready to do almost anything to get ahead and are often – in the long term – very good for the development of a country. Just think the USA who became the only world power based on immigration.

In theory people staying in South Africa illegally can be deported but only if this is done in a way that would comply with the rights in the Bill of Rights and the supporting legislation – including the right to a fair hearing – before any decision is made to send them back. Most of the rights in the Bill of Rights apply to ¨everyone¨ and not only to SA citizens.  Sadly, often the rights of such undocumented immigrants are not respected and they are merely sent back only to return on another day.

But in the end, as the apartheid government found out, it is impossible to keep so many people away from economic opportunities by merely putting them on busses and trains and sending them back to their own countries (or ¨homelands¨ in the apartheid era) where they face even worse conditions and a lesser chance of making a living.

The only way to deal with the matter is to find a regional solution and this would have to include a solution of some sort of the Zimbabwean crisis. Sadly our government has helped – directly or indirectly – to prop up the person mainly to blame for the economic meltdown in Zimbabwe so this solution never materialised.

All those people venting at the undocumented immigrants should shout at the government to do more to get Robert Mugabe out of office and a new government there up and running.

But what do we do now? If we cannot (and based on humanitarian and human rights grounds, should not) deport 5 million people from South Africa and if tens of thousands of them are now destitute because of the violence, would it not be better to set up some temporary camps to assist them to survive?

I suspect the government thinks this is a toxic idea because it would LOOK so bad in the world media while – so they might think – it may also encourage more economic refugees (who are not legal refugees to come into South Africa.

But unless something drastic happens to improve the economy of Zimbabwe, the millions of undocumented immigrants will remain part of our lives, violence or no violence. A sensible government would try and steer a course between the anger of its own people and the need to accept the inevitability of millions of immigrants in our country.

Sadly, denial instead of proactive management has characterised the management of this issue and now it has blown up in our faces.

  • khosi


    What are you saying?

  • z

    what’s really sad is the politics of the Cape coming into play here.

    “Palesa Morudu, of Premier Ebrahim Rasool’s office, said a joint operations centre managed by the province and the city had not yet been activated. The city was handling most of the relief work as the Western Cape had not yet been declared a disaster area.”

    The city and province are also disagreeing regarding the site close to my home, which has very good facilities, belongs to the province and is currently housing about 280 people. I also picked up via the grapevine that Zille and Rasool had disagreements regarding another site the province did not want them to use.

    The one near us is a perfectly good site, with great facilities, much better than any of the others in the area, and easy to secure with a single access road.

    It really does seem like the province tries to sabotage the city wherever it is able to. But it is mere conjecture at the moment. A Burundian who was sitting in on the discussions also seem to have the same impression. I wasn’t there myself, but I accidentally interrupted them (;

  • Anonymouse

    Z, yes, it would appear as if, instead of taking hands and strengthening each others hands in the common good, the ANC (at least the Western Cape part thereof) is trying to score political points by re-ploclaiming its political dominance over the DA in the Province – establishing its one-track-minded decisionmaking power on matters such as these. What a shame?!

  • Pierre De Vos

    Wessel, I confess to being one of the bleeding hearts who really do not think we can stop people from coming to South Africa. In a global world (and given the vast differences in economic opportunities) this is going to happen. Maybe by being more vicious we can keep out one million people – but then four million remain.

    My point, Khosi, is that we should find a way of managing the sitution. We should not deny that there are 5 million non-South Africans living among us. In the short term that means we should give humanitarian assistance (by setting up camps in necessary). In the longer term it means we should try and find ways of dealing with immigrants by legalising them so that they have same labour rights as South Africans and cannot be exploited (one of the arguments used by those who have vented against foreigners. We should also put pressure on the Mugabe regime (economic and political pressure – not military pressure) to make it clear to them that they cannot continue stealing elections and hanging on to power. That would be a start.

  • Pierre De Vos

    I see the UN High Commissioner for Refugees agree with me:,,2-7-2382_2329976,00.html

  • Anonymouse

    Prof de Vos, any chance of claims like these succeeding?,,2-7-2382_2330306,00.html
    If so, can the illegal government of Zim lodge a claim?
    I see that one of the Kenian ministers said that SA’s special envoy has to be kicked out of Kenya due to the Sa government’s inability to ontrol violence against its citizens in SA.

  • z

    Does anyone know anything about regulations in regard to declaring “a disaster area”, as in the above quote?

    20000 displaced people, maybe even more, needs a huge relief effort. I don’t understand the bureaucracy of why it takes so long to be declared just that. People think food is an issue, but you need so much more: baby food, nappies, blankets, jackets, sanitaries, volunteers, it goes on and on. In one place 6 volunteers were handling 600 people! They spend a lot of time just sorting through donations, which is very time consuming. Then they need the capacity to spend the monies coming in.

    Thank goodness though for Lekota, who was allegedly the only minister to respond to Zille’s call for help. This is not the time for politics! Apparently Zille has been offering help to home affairs for a while now in terms of venue and support staff to sort out the immigration mess. But come on, how is that going to look in the headlines: “DA helps Home Affairs sort out mess”. Ain’t gonna happen.

    Sorry for the rant. And no I am not a member of any political party. I am just upset at how things are being handled.

  • khosi



  • Clara

    “We should also put pressure on the Mugabe regime … (not military pressure) …”

    Spoilsport! Whyever not, when this would be the perfect opportunity to try out those brand-new submarines of ours?

  • khosi

    Hayi wena Clara. The violenc(ie) is no good(i), you see Mad(e)m.

  • z

    Not sure whether we have cruise missiles for those submarines to fire at Zim (them being landlocked and all). Also not sure what the typical range is for those fired from submarines. Maybe we can go test them out on some Somali pirates, I’m sure they don’t love us much at the moment, and nobody likes pirates (except maybe Captain Jack Sparrow)

    But if Clara really wants us to test out some of the new equipment, we should maybe give those Gripen Advanced Light Fighter Aircraft a test run. But then we should be careful, cause Zimmies recently bought some new air force goodies from their buddies in China. Not to mention the migs they already have. (They did a recent fly by during the counting process)

    The only problem I foresee for Zim is the long queues at the petrol station.

  • Clara

    “them being landlocked and all”

    I see you’ve been putting a good deal of thought into my proposal, Z … hahaha … actually I was thinking of putting little wheels under those submarines – you know, give them a dry run?

    Khosi, what was THAT all about?

  • Mpho

    1. The Immigration Act is racist! No need to argue any further. 2. Why are people who fled to South Africa almost 10 years ago when they escaped military camp having their Refugee Status application heard and turned down only now (as is the case with one of my clients) when Refugee status is determined at the point of application, not at the date of the decision. We don’t play fair.