Legislative Change on Gender Based Violence and Femicide
On the 28th of January this year the President assented to laws that strengthen the fight against gender based violence (GBV) . He heralded this as a major step forward in fighting against the GBV epidemic and in placing the rights and needs of victims at the centre of interventions.
The President assented to:
- the Criminal Law (Sexual Offences and Related Matters) Amendment Act Amendment Bill,
- the Criminal and Related Matters Amendment Bill, and
- the Domestic Violence Amendment Bill.
Between the 2019/2020 period South African Police Services (SAPS) crime statistics reported rape and sexual assault cases were 42 289 and 7 749 respectively . Covid-19 led to an increase in GBV internationally and domestically as many women were confined in their homes with their abusers. Migrant women and girls face compounding levels of vulnerability and harm in the form of xenophobia, racism and gender-based violence. Migrant women and girls, particularly those that are undocumented or have expired documentation are hesitant and unlikely to report GBV given their migration status. Migrant women in South Africa and across the African continent encounter a number of challenges in accessing their right to safety and security and protection against GBVF . It is hoped that these amendments to the law will protect and promote the rights of migrant women and girls and make recourse more accessible.
The first amendment to the law improves the prevention of further sex crimes, especially to protect children, by expanding the scope of the National Register for Sex Offenders (NRSO), increasing the period in which an offender’s particulars must remain in the NRSO, and expanding the list of persons considered vulnerable. These are commendable protection measures with the potential to yield positive results if effectively implemented along with other measures such as improving the conviction rate, and successfully rehabilitating and reintegrating offenders into the community
The second amendment aims to reduce secondary victimisation of vulnerable persons in court proceedings through allowing for intermediaries and evidence to be given through audio-visual links in proceedings other than criminal proceedings. It is a sad reality that survivors re-experience traumatic events when they report their ordeal to the police, testify, get cross-examined, and face their perpetrators in court. Research has shown that secondary victimisation has negative health consequences, and it discourages survivors from reporting. The new changes to the law make seeking justice less onerous for survivors. In addition, the law tightens bail and minimum sentencing provisions in the context of GBV. This could bring relief to survivors with fear of and at risk of re-victimisation if the perpetrator is released on bail and would prevent a repeat of circumstances like those in the infamous Carmichele v Minister of Safety and Security and Minister of Justice case . Extending sentences should be coupled with improvements in identification, arrest and prosecution of perpetrators. To quote from retired judge Justice Edwin Cameroon, “what inhibits crime is certainty: certainty of follow up, certainty of detection, certainty of arrest, arraignment, prosecution, and certainty of punishment. In all this, how long the sentence is plays very little role” . In closing on this point, it is in the best interests of society that the criminal justice system is accessible, reliable and informed by research as opposed to merely calling for the heavy hand of the law.
Lastly, the third amendment to the law introduces two major changes in the legal framework of GBV. These are the introduction of electronic applications for protection orders and the removal of the “imminence” requirement under Section 8(4) of the Domestic Violence Act 116 (1998). For the latter, in practice it means that a survivor can report a violation of their protection order without being expected to prove that they will be killed if the police do not make an arrest immediately. Previously the police had to use their discretion to judge whether the threat of harm was likely to happen, and that the only way to prevent it was by making an arrest, even in instances where there was a protection order in place and warrant of arrest. With the pandemic context and the aftermath of high levels of lock down, these implementations are more than welcome since they will facilitate enhanced survivor protection. Secondly there is an expansion of definitions of “controlling behaviour” and “coercive behaviour” and “domestic violence” to include spiritual abuse, elder abuse, coercive behaviour, controlling behaviour, and/or exposing/subjecting children to certain listed behaviours. While the expansion is positive, it is important to consider the implications of some of these on the under-resourced police service (SAPS) responsible for policing a wide range of work. Overall, this amendment is certainly a significant positive step towards handling GBVF and adds to the protection of GBV survivors and those at risk.
As Scalabrini Centre of Cape Town we applaud the President and legislature and all individuals involved in the process leading to the signing into law of these legislative amendments. We witness first-hand the consequences of GBV in our work with refugees and migrants some of whom have sought asylum in South Africa to flee persecution targeted at them on the basis of their gender. Some migrants are survivors of GBV in their country of origin and/or in South Africa. It is hoped that this article will assist in raising awareness of the new amendments to the legislation and help in their implementation. We strongly believe everyone has a part to play in eradicating the scourge of GBV and Femicide in South Africa, on the continent and across the world.
The Grace of the 12-month Grace period for Late Registration of Birth
The Scalabrini Centre and Partners Appreciate the Shift with Late Registration of Birth to 12 months and call for its continuation or expansion beyond 12 months
As a result of the pandemic there was a shift in the policy from requiring birth registration within 30 days to birth registration within 12 months, before increasing requirements in the late registration of birth process. This is an important step in ensuring the Constitutional rights realisation for every child in South Africa.
The Scalabrini Centre has engaged recently with in excess of one thousand clients including numerous South Africans and migrants all of which were/are struggling with the late registration of birth process and the additional administrative burden placed upon parents seeking to register their child’s birth once the 30-day period for registration came to an end.
In some such cases despite concerted and repeated efforts registration was not feasible within 30 days and thereafter late birth registration was not possible in a period of 3 to 5 years after the child was born. Children struggled and struggle to access school in the absence of a birth certificate. The shift to 12 months for birth registration is a great thing for both South Africans and non- South Africans. Home Affairs should continue with the 12 months period or even expand it further and the Scalabrini Centre would like to appreciate the wisdom in extension the period as this increases the dignity and rights realisation in the pursuit of the best interests of the Child.
We have found in practice that most parents whose children fell under the late birth registration process, which arises after 30 days, are the parents that did not have documentation at the time of the birth of the child. Both South Africans and Non- South Africans were and are experiencing the same issue. The extension to 12 months allows parents sufficient time to apply for the right document such as: South African ID documents, visas, asylum seeker visas and refugee status documents. One of the advantages of the 12 months birth registration period is it has and will continue to decrease the number of children in the late birth registration process, which takes years for children to get their birth certificates.
30 Days birth registration causes a lot of late birth registration due to the lack of documentation. Birth registration after 30 days deprives children of the right to identity, the right to nationality, and puts them at risk of statelessness. According to section 28 of the Constitution of South Africa ‘every child has the right to a name and a nationality from birth’. In South Africa, these rights can only be brought to life through the possession of a birth certificate. Additionally, birth registration after 30 days and the failure to issue birth certificates makes it difficult for children to access to education, health care and social services. We encourage parents and care givers to register the birth of their children as early as possible but appreciate the challenges faced in the absence thereof.
The Bill of Rights sets out a series of fundamental rights including the right to equality, to dignity, to administrative justice and the rights of the child and these can only be truly accessed with valid documentation (such as a birth certificate) that proves the person’s nationality, and therefore their legal and administrative existence in South Africa. Section 28 of the Constitution of South Africa requires that the ‘best interests of the child’ is the priority in all decisions and matters concerning the child.
A 12-month birth registration period or longer is in the best interest of the child because within a year the child will have a birth certificate compared to waiting for years to have a birth certificate languishing in the late birth registration process. We appreciate the rights protection afforded to South African and to Migrant Children alike and hope that this will continue and be improved upon in years to come.
Submissions on the Prevention and Combatting of Hate Crimes and Hate Speech Bill
“The Hate Crimes Working Group (HCWG) is a multi-sectoral network of civil society organisations and private individuals set up to spearhead advocacy and reform initiatives pertaining to hate crimes in South Africa and the region. Members of the network work in diverse sectors, namely: in LGBTQI+ and sexual orientation, gender identity and expression and sex characteristics (SOGIESC) rights; sex worker rights; migrant, refugee and asylum seeker rights; religious organisations; academic and research entities; gender-based entities; and broader human rights organisations. All our members combined have extensive track records in advocacy work in these and other focus areas. They all share a common concern regarding the impact of hate crimes in South Africa from the perspective of victims or from a legal, service provision, research-based or advocacy perspective.”
Angola Special Permit update
This instruction video guides Angolan nationals on how to apply for the Angolan Exemption Permit (AEP), following the announcement by the Department of Home Affairs regarding the AEP permit on 5 August 2021
Who can apply for the Angolan Exemption Permit?
- Angolans who were issued with the Angolan Cessation Permit (ACP) but did not apply for the Angolan Special permit (ASP).
- Angolans who were issued with the Angolan Special permit (ASP).
- All Angolan refugees or asylum seekers who were issued with Section 24 or Section 22 permits before 31 August 2013, this being the date when the Tripartite Commission Agreement was signed marking the end of the Civil War in Angola.
What are the requirements for application?
- Angolan passport valid for more than 12 months on date of application.
- Proof of Refugee/Asylum Seeker Permit issued before 31 August 2013
- Copy of Angolan Cessation Permit (ACP) or Angolan Special permit (ASP)
Do I need to pay an application fee for the Angolan Exemption Permit?
Yes, the Visa Facilitation Services (VFS) processing fee is R1 090. This is a requirement for the processing of your application and is NOT negotiable. Applicants under the ACP and ASP dispensation were not required to pay application fees. However, the Angolan Exemption Permit comes with rights of residency, which attract a fee for the processing. Clients who intend to apply for permits for their spouses and children must take note of the application fees requirement.
Is there an expiry date to these permits as was the case with the ACP and ASP?
The Angolan Exemption Permits will be issued with permanent residency and will not have an expiry date. The Minister of Home Affairs has in the past granted the rights of permanent residency for a specified period of time. This time around, permanent residency will be granted indefinitely which will allow permit holders when granted to apply for identity documents.
Is there a closing date for applying for the Angolan Exemption Permits?
The Department of Home Affairs has not indicated when applications will be closed. However, we advise clients to submit their applications timeously to avoid a rush, should Home Affairs announce a closing date at a later time.
Can spouses and children apply for the Angolan Exemption Permit?
Spouses and children of the affected Angolan nationals will be allowed to apply for mainstream visas or permits after the main member has obtained his/her exemption permit.
- The spouse of an individual who has been granted permanent residency can apply for a temporary spousal permit
- Children of the permanent resident of school going age are eligible to apply for a study permit.
- Children who are not yet in school are eligible to apply for a relative’s visa.
All of these applications can be made from within South Africa. This is a positive move as this waives the requirement for first time applications to be lodged from the country of origin. In the interim these spouses and children should apply for a valid passport.
How does one apply for the police clearance report?
A South African Police Report, will be obtained by the department on behalf of the applicant, and a fee must be paid for this report.
Please note that an additional R185.00 is required for the police clearance report. This fee is payable at the VFS offices and they do NOT accept cash payments.
Applicants must ensure that they have made provision for payment by card for this service.
How long after submission of the required documents will it take before permits are issued?
The turnaround time to issue the Angolan Exemption Certificate may take up to eight weeks. However, it may take longer than that and applicants can track the status of their applications on the VFS website.
Are we required to submit proof of employment or study as in previous years?
The Angolan Exemption permit will be issued with rights of permanent residency and with that comes the right to work and study in South Africa. Supporting documentation for your application is explained in step 1 above.
Will Scalabrini be assisting with submission of applications for the Angolan Exemption Permits?
Scalabrini is not able to assist with applications at this point. However, we are planning to do a step-by-step tutorial guide on how to submit the online application on the VFS website.
What is the history behind the ASP permit?
Several ASP permit holders have asked for an explanation of the history behind ASP and how we got to this stage.
During the 1990s, thousands of Angolans sought refuge in the new democracy of South Africa, escaping a devastating civil war that continued for decades. This group of Angolans were granted temporary refugee status by the South African government which was renewed approximately every four years.
In 2012, the UNHCR recommended that, due to changes in Angola, States could cease refugee status for Angolans. Pursuant to this UNHCR recommendation, the South African government, the UNHCR and the government of Angola agreed that Angolan refugees living in South Africa no longer needed the protection of the South African government since the Angolan civil war had concluded and political stability had returned to Angola. In 2013, the South African government announced cessation and between May and August 2013, withdrew the refugee status of Angolan refugees.
The Angolan refugee community – which has integrated into South African society over the last twenty years – was deeply impacted by the possibility of forced return. A 2014 research report by the Scalabrini Centre identified the community’s deep levels of socioeconomic integration and The Cessation, a short documentary, traced the impact of the cessation process on three Angolan refugees living in Cape Town. Aside from the socioeconomic integration of the Angolan community, an entire generation of children born to Angolan parents have never set foot in Angola and know South Africa as their home.
The legal process for cessation involved the withdrawal of refugee status through the issuance of notification to the individual by the Standing Committee for Refugee Affairs, to which he or she may respond.
Angolan refugees who had their status withdrawn were provided with three options: voluntary repatriation to Angola, apply for continued refugee status, or apply for a temporary residency visa to remain in South Africa.
The large majority of affected Angolans applied for the temporary residency visa. This came to be known as the ACP permit: a two-year work, study or business permit which was issued under relaxed immigration rules valid from 2013 to 2015. According to the Department of Home Affairs, 2,049 ACP permits were issued in total.
As the expiry dates of the ACP permits neared, it became apparent that ACP permit holders could not extend their permits, due the strict Regulations of the Immigration Act. In May 2014, the Scalabrini Centre began discussions with Home Affairs to advocate for continued legal stay of ACP permit holders, under relaxed immigration conditions, based on their strong ties to South Africa.
The Scalabrini Centre asked Home Affairs to extend these permits or provide permanent residency. However, Home Affairs declined. In October 2015, the Scalabrini Centre submitted an application for permanent residency made on behalf of the entire category of ACP-permit holders. Home Affairs did not respond.
In November 2016, after a year of legal steps and negotiations, the Minister for Home Affairs agreed in an out of court settlement to consider and determine applications for permanent residence in terms of section 31(2)(b) of the Immigration Act for all ACP permit holders. The procedure for this application was set out in a Court Order by the Western Cape High Court.
The Court Order tasked the Scalabrini Centre with receiving permanent residency applications, and was bound to deliver these applications to Home Affairs on 15 February 2017. In December 2016, the Scalabrini Centre opened a receiving centre. This ran until 20 January 2017, at which point 1,776 Angolan applicants had come through its doors. In total, 1,241 permanent residency applications were received at the Scalabrini Centre.
Angolans in other South African cities sent their applications to the Scalabrini Centre via the Legal Resources Centre, Lawyers for Human Rights and the Refugee Rights Centre at Nelson Mandela University. This brought the total number of applications to 1,737.
Angolan ACP permit holders were asked to provide a variety of documents, including police clearance certificates, proof of work, bank statements and proof of integration into South African life. Some applicants submitted applications that were hundreds of pages long, documenting two decades of lives and the Angolan community's contribution to democratic South Africa.
These applications – bound in 160 files comprising of an estimated 80,000 pages – were delivered to Home Affairs on 15, 16 and 17 February 2017. It took three days to process receipts for the lodgment of these applications.
The Court Order stipulated that the Minister of Home Affairs must issue individual decisions for each applicant by 15 May 2017. An extension was agreed upon and in July 2017, the Minister of Home Affairs decided to grant conditional rights of permanent residency to the entire class, for a period of four years. Conditions included that applicants must submit photos, biometrics, police clearance certificates and supporting documents via VFS. Applicants had until 15 December 2017 to provide the necessary documentation to VFS.
Scalabrini Centre Releases 2020 Annual Report
This year, life changed for all of us. At SCCT, the Covid-19 pandemic had a wide and deep impact on our services and clients.
Whilst we transitioned our programmes online, our assistance to migrant and refugee populations in South Africa adjusted and adapted to their changed realities. We witnessed clients who – having survived precariously prior to the pandemic – fell into desperate need as jobs disappeared during the national lockdown. But we also witnessed an innovation and resilience – clients (from as far as Brasil) joined our remote English courses whilst others stood in solidarity to assist others in their communities.
One beautiful phenomenon that emerged amidst the hardship of 2020 was an unexpected generosity for those worst impacted by the pandemic. If ever you have been far from home, you will know that the generosity of strangers is a very special and powerful commodity. In ancient Greek culture, xenia (which translates as ‘guest-friendship’) was a sacred rule of hospitality – in which rituals of generosity and courtesy were provided by hosts to strangers who were far from their homes. Xenia sets out reciprocal actions that apply to both host and guest, and is a theme which threads through important texts – such as the Qu’ran and the Bible – and is crystallized in our own cultures – like our sense of Ubuntu.
How xenia plays out in the modern world, especially in the context of migration in South Africa, is vital to our work at SCCT – and vital to migrants and refugees far from their homes.
Through our various client-facing programmes, we were deeply aware of an extreme hardship facing our clients under lockdown. Between April and August 2020, for example, our Welfare Programme had provided direct aid to approximately 5,045 people (their target for this period is usually 364 people). This hardship reflected the wider struggles facing South Africa: during the pandemic our unemployment rate rose to just over 30%.
You would think that in this context of dwindling incomes, unsteady jobs and uncertain futures, ‘xenia’ would be at its lowest. But we witnessed an organic, bountiful generosity from all corners of society. Take our crowd-funding campaign that raised R197,000 for welfare assistance to those who are refugees or migrants facing serious hardship under lockdown. Or take Artists4Equity – an online artists’ auction – which raised R17,000 for the same fund, through the generosity of its organisers and participating artists. Or Joel’s Table, who approached us to inform us of his pop-up restaurant evening, which raised R2,000 for SCCT’s fund.
These donations all stand for something: they stand for hospitality and generosity – a form of ‘xenia’ – even in the face of crisis and pandemic. If anything, this pandemic has been a humbling reminder of the fragility of what we have. Perhaps it is this reminder that sparks such deep generosity.
This year saw some key successes at SCCT including the Advocacy Programme’s success in the High Court resulting in the Social Relief of Distress Grant being extended to certain asylum seekers and special permit holders. Our programmes harnessed modern technology to provide remote services in innovative ways: UNITE completed all curriculum modules using Zoom and WhatsApp, whilst English School used a newly designed WhatsApp curriculum! UpLearn created and launched a new professional development curriculum and, behind the scenes, teams like Facilities and Communications worked hard to make sure all these programmes ran smoothly and were represented to the outside world.
Enjoy reading, and we hope wherever you are, you are a provider or recipient of ‘xenia’ – which is generous and magic, even in the smallest of doses!
Press Release: Scalabrini Returns to Court for Cape Town Refugee Office Case
The Scalabrini Centre of Cape Town is back in court challenging the Department of Home Affairs’ non-compliance with the court order ordering the re-opening of a fully functional Refugee Reception Office in Cape Town.
The ‘Special Master’ case is set down for hearing in the Western Cape High Court on 12 and 13 May 2021.
The Scalabrini Centre of Cape Town and the Somali Association of South Africa, represented by the Legal Resources Centre, are going back to court to ask for a ‘Special Master’ to oversee the Department of Home Affair’s compliance in the matter Scalabrini Centre of Cape Town v Minister of Home Affairs (Case 1107/2016) – previous litigation which successfully sought the re-opening of a fully functional Refugee Reception Office (RRO) in Cape Town.
In 2017, the Supreme Court of Appeal (SCA) found the closure of the Cape Town RRO to be unlawful. The SCA ordered that the DHA reopen and maintain a fully functional refugee reception office in or around the Cape Town Metropolitan Municipality by Friday 31 March 2018. The Director-General was also ordered to submit monthly progress reports to the applicants showing progress toward the reopening of the Cape Town RRO.
DHA attempted to appeal this matter to the Constitutional Court, but in December 2017 the Constitutional Court dismissed the DHA’s application and directed it to comply with the SCA Order. To date, no fully functional RRO has been reopened in Cape Town, nor have regular monthly progress reports been submitted.
DHA’s non-compliance has led the Scalabrini Centre of Cape Town, as applicants in the matter, to re-approach the Courts. We are seeking the appointment of a Special Master to oversee compliance to reopen the RRO.
For a fuller explanation on the previous Scalabrini Centre of Cape Town v Minister of Home Affairs case, and why a fully functioning RRO in Cape Town is needed, visit our explainer page.
For more information, contact:
Head of Advocacy & Legal Advisor, the Scalabrini Centre of Cape Town
Regional Director: Western Cape, Legal Resources Centre
Miranda Madikane, director of Scalabrini, reflects on the organisation’s year in her end-of-year letter. Image credit: Maria Rivans for Wellcome Collection.
Dear partners, friends, colleagues!
This year has been a whirlwind, which has blown both good and bad into our lives.
Our first 2020 newsletter, at the onset of the pandemic, marvelled at the adaptability of the Scalabrini team in reaction to the national lockdown – an adaptability mirrored in our clients’ everyday lives as they navigate and survive in South Africa. Our second newsletter looked at the unexpected depth of warmth and hospitality that the pandemic created amongst the general public. And now, as our last newsletter closes off this turbulent year, it is time to settle into the festive season and reflect. I find myself reflecting on this idea of coming ‘home’.
Whatever your faith or beliefs, December is a time of year when we seek to draw closer to our friends and families. It is intended as a time of rest and reflection and many of us return ‘home’ to be with loved ones. I think I am safe in saying that, if any of us are able to be safe, and with loved ones this December, we are in a very fortunate percentage of the world – and the pandemic has only served to highlight this.
Much like the opening scenes of the film ‘Wizard of Oz’ (in which a tornado rips into the protagonist’s life and whisks her home away) the pandemic seemed to tip our worlds upside-down in a mighty whirlwind; our concept of ‘home’ might too have been affected. Many people have been unable to reach loved ones due to the travel restrictions brought about by Covid-19. For others, ‘home’ is not a safe or happy space – and our recent SGBV campaign has aimed to signpost those who are not safe in their homes.
As you can imagine, for the majority of our clients, returning to their homeland is simply an impossibility – pandemic or no pandemic.
Homesickness was recently explored (and beautifully illustrated) in a recent article in which a student from Scalabrini’s English School was featured. This was one article in a series about homesickness. This specific piece looked at refugee communities’ homesickness – ‘when you can’t return home’. The idea of ‘home’ and ‘missing home’ has been found to form more than just a personal feeling among those seeking asylum. Homesickness for many refugee communities is something much more profound, deep and communal – a shared sentiment that shapes the communities’ identity and diaspora cultures. Mirroring this, our Far From Home Series collected up some beautiful, strong words from people on migrant and refugee status in South Africa who survived the pandemic ‘far from home’. Marc, for example, from the Democratic Republic of Congo, stresses that ‘we need to be strong and never lose hope. I understand that things are even worse especially when you are far from home … every time we put food on our table, we shall remember those who don’t have.’ This strength, despite being far from home, is what strikes me so often at Scalabrini.
This festive period, I hope you are able to rest and reflect with those you love. If you are not able to, I hope you can take strength from others around you and know that you are not alone. Onacisse, who participated in Far From Home, leaves us with some hopeful advice: “Check up on family and friends, and appreciate them each every day, it reduces stress especially during this tough time. I hope and believe that one day we will rejoice with our loved ones, because Coronavirus is not going to stay forever. And after this pandemic life is going to change for the better.”
I wish you a peaceful December break, and we hope that 2021 will bring us warm breezes rather than whirlwinds!
Director at Scalabrini Centre of Cape Town
Promoting human rights through our affordable and socially-responsible Guesthouse
As Human Rights Day approaches, tourists and travelers can contribute to ensuring migration rights, simply in the accommodation they choose!
The term ‘conscious travel’ has a green glimmer to it – one usually thinks of promoting environmental sustainability – but it also encompasses community impact and human rights. The Scalabrini Guesthouse offers affordable accommodation in the heart of Cape Town’s city centre and all of the revenue goes directly to supporting Scalabrini – an organisation which provides vital services to refugees, migrants and South Africans with a vision of fostering peaceful integration between all.
With the December season upon us, people will be traveling around the country to spend time with loved ones. This migration is reflected in the people using Scalabrini’s services: people who have travelled to South Africa in search of a better life for themselves and their loved ones. The simple choice that you make about where to stay in Cape Town can help with making someone’s integration into South Africa a bit easier.
When the hard lockdown hit South Africa, our welfare team jumped into action to support people who are migrants and refugees, as there was very little government support available to them, and those in informal jobs were hardest hit. The welfare team assessed and assisted over 5,000 people during the hard lockdown and continue to do so now as the lockdown has eased. The Welfare Programme is just one of the areas that the guesthouse revenue supports.
With many people still feeling overwhelmed by the effects of lockdown and not knowing how they can help, the Scalabrini Guesthouse offers a solution to this, while also being able to enjoy your time off.
Heart of the city
The guesthouse is located in the centre of Cape Town – meaning the beaches, mountains and other attractions are easily accessible. Each room comes with its own bathroom, there is daily housekeeping and laundry services are on offer. A fully-equipped kitchen allows for self-catering, but there are also plenty of great restaurants nearby!
Sindiso Hlokomayo – Facilities Manager
Scalabrini court victory for people seeking asylum in South Africa
Home Affairs has been interdicted from implementing certain provisions of the Refugees Act and new Regulations (both implemented on 1 January 2020), which sought to return asylum seekers back to their home country where they could be face detention without trial, rape, torture, or death, merely because he or she was a month late in renewing a visa.
On 30 November 2020, Judge Baartman handed down judgement in the Western Cape High Court, which suspended the operation of certain provisions of the Refugees Act, 1998 and the 2018 Regulations thereto (both of which came into effect on 1 January 2020). The suspended provisions are commonly referred to as the ‘abandonment provisions’.
The suspension will operate until the constitutional attack against the impugned provisions has been adjudicated on by the Western Cape High Court and, to the extend necessary, confirmed by the Constitutional Court.
The Scalabrini Centre of Cape Town, represented on a pro bono basis by Norton Rose Fulbright and Advocates David Simonsz and Nomonde Nyembe sought to prevent the short and long term operation of the abandonment provisions, as the provisions infringed on asylum seekers’ rights to life, freedom and security of person, dignity, and equality; and prevented South Africa from fulfilling its international law obligations towards refugees, including the international law principle of non-refoulement.
The abandonment provisions provided that in the event that an asylum seeker fails to renew their asylum visa timeously, their applications for asylum are deemed abandoned. Arrest and deportation would follow for individuals with valid and undecided claims for asylum; back to countries of origin where they could face death, torture, sexual violence, and other forms of persecution from which they originally fled, or to countries experiencing grave disturbances to the public order. Only where an asylum seeker has a compelling reason (and proof thereof) for delaying to renew a permit following a lapse (such as hospitalisation or imprisonment) can the Department of Home Affairs pardon the late renewal.
This is deeply problematic as it means that refugees can be returned to face persecution, without ever having the substantive merits of their asylum application determined. It also leaves asylum seekers vulnerable in South Africa as essentially undocumented foreigners who will struggle to access health care, employment and education while they await the decision of whether their reason for late renewal meets the Department of Home Affairs high threshold.
The reality for asylum seekers is that they are frequently required to renew their asylum visas. In the renewal process, they experience extraordinary delays caused by the administrative failures of the Department of Home Affairs. These are often exacerbated by socio-economic factors such as not having the means to travel to far away Refugee Reception Offices as frequently as is required, waiting in long queues at the Refugee Reception Offices, facing corruption from officials who refuse to renew visas without bribes, or the general inefficiency of the Refugee Reception Offices that are over-worked but under-staffed.
In light of these realities many asylum seekers fail to renew their visas for valid reasons. Judge Baartman delivered a powerful judgment, emphasising that the case does not involve imaginary victims – the suspended abandonment provisions affect real asylum seekers who could face serious human rights violations should the provisions continue to operate. She criticized the Department’s conduct in the case, which was characterised as regrettable and unhelpful.
The judgement will come as a relief to many asylum seekers who have been unable to renew their visas for valid reasons and will give them an opportunity to do so without the fear of being treated as an illegal foreigner and returned home. This includes many asylum seekers who may have been prevented from renewing their asylum documents prior to the pausing of services at Refugee Reception Offices during the national lockdown – a pause which is set to remain in effect until at least 31 January 2021. Scalabrini Centre, represented by Norton Rose Fulbright, firmly believes the abandonment provisions are unconstitutional and persists in a challenge to this effect.
Norton Rose Fulbright Inc
Nicki van’t Riet, Director: firstname.lastname@example.org
Laura Macfarlane, Associate: email@example.com
Scalabrini Centre of Cape Town
Sally Gandar: Head of Advocacy & Legal Advisor: firstname.lastname@example.org