Court victory for asylum seekers
Somali and Ethiopian asylum seekers and refugees have scored a longed-for victory against official xenophobia – the Supreme Court of Appeal has thrown out key elements of ‘Operation Hardstick’.
This is a police programme in terms of which, among other strategies, Somali and Ethiopian businesses in Limpopo were shut down regardless of whether or not they had valid licences.
After a gruelling series of court cases the Somali Association of South Africa and the Ethiopian Community of South Africa, along with individual members, have been rewarded by an appeal decision that rules against some of the essential elements on which Operation Hardstick was based.
The appeal court made an order spelling out that asylum seekers and refugees are entitled to apply for new business and trading licences. They may also apply for existing licences to be renewed and they may apply for and renew consent to operate tuck-shops and spaza shops.
The five judges also agreed that it was unlawful and invalid for the authorities to close businesses operated by refugees and asylum seekers with valid permits. This was another strategy used during ‘Hardstick’.
On top of it all the court also ordered that the local, provincial and national authorities must pay the legal costs of the case brought by the Somali and Ethiopian organisations.
Explaining the issues at stake, the judges said the case dealt with the rights of refugees and asylum seekers, lawfully in South Africa, to earn a living through running spaza or tuck-shops.
On one side the Somalis and Ethiopians said they had the right to be treated equally to South African citizens; they were entitled to apply for and be granted licences to trade and that they – like South African citizens – enjoyed the constitutional right to dignity.
By preventing them from earning a living when they were desperate and destitute the authorities were effectively denying their dignity.
On the other side of the legal battle stood a long list of authorities – Limpopo’s department of economic development, environment and tourism; the Ministers of Police, Home Affairs and Labour; Limpopo’s MEC for Safety, Security and Liaison; the National Police Commissioner; Limpopo’s provincial police commissioner; the Standing Committee for Refugee Affairs and two of the most affected municipalities.
According to these authorities, asylum seekers and refugees ‘do not have the same rights as South African citizens’ and the right to seek self-employment is a right reserved for South African citizens.
The judges heard that the police raided and shut down businesses run by people from Somalia and Ethiopia, a claim unchallenged by the authorities. During these raids equipment, stock and other items were confiscated.
The appeal judges quoted background information from the high court decision in the matter:
Judge Natvarlal Ranchod recorded that the intention of Operation Hardstick had been to shut down businesses in Limpopo operating without proper permits - ‘at least 600 businesses’ were closed.
Judge Ranchod also recorded allegations – again not denied – of the police telling traders that foreigners were not allowed to run businesses in South Africa, that the permits issued to asylum seekers and refugees did not entitle them to operate a business here and that ‘foreigners should leave the municipality’.
The appeal judges further referred to a representative of the Somali Association, Mohammad Hirey, who said affidavits by other members of the organisations ‘tell a story of the most naked form of xenophobic discrimination and of the utter desperation experienced by the victims of that discrimination’.
Hirey’s allegations of xenophobic threats against refugees and asylum seekers were also not challenged by the authorities. Nor were his explanations of problems experienced by his community in entering the formal job market: language difficulties, their shortage of skills because of the situation in their home countries – and xenophobic prejudice.
Often the only way to support themselves was to start their own small businesses.
During the appeal hearing one key moment summed up the attitude of the authorities to the Somali, Ethiopian and other asylum-seekers in this country.
It came as the judges were hearing debate about what asylum-seekers and refugees could do to keep themselves and their families alive during the three year period it often took for refugee status to be finalised, particularly since South Africa, unlike some other countries, did not provide financial support to asylum seekers and refugees.
‘It is difficult to understand the attitude’ of the authorities, said the court in its judgment.
‘When, during argument before us, we enquired of counsel what was to happen to destitute asylum seekers and refugees, no answer was forthcoming. There appeared to be some suggestion that, regrettably, some persons might be left to their destitution.
‘This attitude is unacceptable and contrary to constitutional values.’
The court urged that even though the authorities might be frustrated by the growing population of people seeking asylum and refugee status, their frustration must not ‘blind them to their constitutional and international obligations.’ It should also not ‘diminish their humanity,’ said the court.
Then followed a warning by the court that would have been welcomed by the Somali and Ethiopian organisations and individuals that brought the case. ‘The authorities must guard against unwittingly fuelling xenophobia,’ said the judges.
They said the case had left them with an uneasy feeling that the reason the authorities tried to close spaza shops and tuck-shops by refusing permits, ‘was in order to induce foreign nationals who were destitute to leave our shores.’
That wasn’t their job, said the court. What they should be doing instead was to ‘facilitate and expedite applications for refugee status.’
The appeal judges found that Judge Ranchod erred when he said that the authorities were correct in their interpretation of the law.
They held that there was no blanket provision against asylum seekers and refugees looking for employment. And they were strongly critical of the authorities for the way they handed the legal fight. In particular it was a cause of ‘grave concern’ to the judges that the specific allegations of police abuse were not dealt with by the authorities in their answering affidavits.
Lawyers for Human Rights, the legal NGO that represented the Somali and Ethiopian applicants in the case, called the outcome ‘a great victory’ adding that it was ‘delighted’ with the result.
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