Refugee situation in Cape Town: stakeholder engagement; with the Minister

Meeting report

Opening remarks

The Chairperson said the meeting had been called to discuss the matter of refugees that had been staying at the Methodist Church in Cape Town. These refugees had been complaining about the living arrangements. They wanted to be resettled in Canada or Namibia, but the South African government had received reports from those two countries declining to acceptance them.

The Committee had invited the Refugees Appeals Board, but unfortunately the leader of the Refugees Appeals Board’s status as a refugee was being appealed. However, he was causing chaos and that was creating problems.

The City of Cape Town and the Department of Home Affairs (DHA) had been convened to work together and find a lasting solution to this matter. Some of the migrants had not been respecting South African laws and continued to disrupt the economic activity of the city. He believed that those individuals should be sent back to their homes. Members needed to obtain an account of how the relevant stakeholders could proceed with the process of sending the migrants back to their homes.

Minister’s remarks

Dr Aaron Motsoaledi, Minister of Home Affairs, gave a background on the situation of the refugees who were demanding to be resettled to a third country. He provided a chronological order of the events that had taken place from when a letter from the Women and Children Concern (WCC) organisation was submitted to the United Nations High Commissioner for Refugees (UNHCR) in Pretoria, with a full account of the events that had transpired.

He said that reintegration had been rejected by some refugees within the groups, and that had brought the Department back into the first phase. If they did not accept reintegration, there was nothing else that the Department could do. The countries that they wanted to go to were not accepting them. The Minister had reached out to the Namibian and Canadian governments. Both countries had outlined the process which needed to be followed, as outlined by the United Nations on applications for asylum. The refugees had to do so as individuals, on their own accord, and not as a group. Asylum applications could not be done as a group. The best way forward was to reintegrate these people back into their communities to settle the matter, because it could not remain a stalemate situation for too long.

City of Cape Town briefing

Ms Antoinette Markram, City of Cape Town legal adviser, said she was in involved in the litigation of the court cases mentioned by the Minister in his speech. The main concern for the City was the request to provide alternative or temporary housing for the refugees. Emergency housing was triggered when a person faced an eviction or became homeless. The City had consistently been told that the refugees had places to go to.

The Mayor had intervened and held discussions with various groups from the communities the refugees came from, and those who were willing to go return had been welcomed back. In the High Court Order, the judge had been concerned that if the City enforced its bylaws, the people would be left homeless. If the City had removed the refugees and placed them in another place, it would need to ensure that they were accommodated. This would in turn create chaos, because it would trigger financial implications and more people demanding accommodation from the City. For example, if one went back to 2008, when xenophobic attacks erupted, one would remember that the City spent more than R200 million providing alternative or emergency accommodation to the victims. In the end, the City had to go to court to get eviction orders and fix the places again.

Where the judge criticised the City for its role, one should remember that the City had previously been ordered to not enforce its bylaws due to the implications that would result. Mr Balus and Mr Pappy had provided home addresses in their bail applications, and this meant that they had alternative accommodation. 

Mr Richard Bosman, Executive Director: Safety and Security, City of Cape Town, said that housing was a huge issue in the country, and if this was allowed to take place and people were provided with alternative housing, they would have the entire Cape Town coming to Greenmarket Square requesting accommodation.

There had been no reports of xenophobia at all -- this was not the same as the 2008 xenophobic disaster. The refugees back in 2008 had all been reintegrated back into their communities.

Intimidation was still continuing, and many of the people that the City was transporting to Home Affairs on a daily basis for their documentation were requesting to be reintegrated into their communities. However, the moment they were seen engaging with the staff, they would be pulled away from them by a certain group of people within the refugees. There was a core group of people who were not willing to accept any form of assistance from the City, but only demanded that they be transported to another country, and that the City must pay. Even after the second court order was implemented, there were at least about 50 families that came to the City asking to reintegrated, but every time that happened, people would be pulled back and intimidated. People need to understand that efforts have been made to assist the refugees, but there was consistent intimidation and a hostile attitude from those who did not want to be reintegrated into their communities.

The original number of these refugees was about 800, and that number had reduced to about 200. The remaining refugees were the ones who had refused to be assisted in order to be reintegrated. There had been no xenophobic reports on the people that had been reintegrated. The xenophobic attack claims were unfounded and untrue -- they were just made up to create smoke and legitimise the protest.

Some of the people that were occupying Greenmarket Square were not actually destitute. These people would go to occupy Greenmarket Square during certain times of the day, while others were still going to their jobs and going to their homes at night. The City made every effort to assist with various stakeholders. The City’s view had always been for reintegration, and no alternative accommodation. There were now just over 200 people left who were still demanding to be taken to Canada. The City would do everything it could to assist with reintegration, but it would not give into the whims and demands of these individuals simply because they did not want to be integrated back into their communities.

The City was now concerned, because the remaining group was a hard core of individuals who were continuing with the intimidation. The City had enforced its bylaws during the first interdict application, but people had been released and the city was taken to court. The court had held that there were certain bylaws that could not be enforced, pending the determination of the interdict. The court order was then executed on Sunday.

South African Human Rights Commission (SAHRC)

Mr Chris Nissen, Commissioner: SA Human Rights Commission (SAHRC), said the SAHRC’s presentation also covered the chronological order of events that had taken place up to now, and these had already been alluded to by the Minister in his speech. He indicated that the asylum seekers and refugees had rights within the Republic of South Africa. In discussions with the Minister, a number of issues had been explained and discussed, particularly on the documentation of the children of asylum seekers and refugees.

Intimidation had still been on-going, and when the court interdict was executed on Sunday, some of the refugees -- about 250 to 300 – had run back into the church. The minister of the church had given them notice to leave and vacate the church, but they were still there.

There were refugees that had come forward and requested to be reintegrated, and given support to resettle in their communities. The main concerning issue was the children within these groups.

There had been a reintegration plan in the beginning, but the problem had been proper coordination and the relevant stakeholders coming on board. However, that had since been resolved and all stakeholders were now working together to come to a lasting solution.

United Nations High Commission for Refugees (UNHCR)

Ms Miranda Gaanderse, Head of Field Office: UNHRC, said that the government of South Africa was a signatory to the 1951 Convention on the Status of Refugees, and its 1967 Protocol. The government held primary responsibility for the protection and safety of refugees and asylum-seekers within its borders. As such, the UNHCR played a supportive role, with services focused on technical support and strengthening civil society services.

With regard to the protest situation, the UNHCR supported a peaceful resolution of the protest situation, and had been continually engaging with protesters, as well as with other members of the refugee and asylum-seeker community, and key stakeholders in government and civil society, to find a solution.

The UNHCR had remained consistent in its key messages:

• We were concerned about the welfare of protesters, sleeping in the streets and inside the church, especially vulnerable women and children
• We were also concerned about the misinformation and promises that continued to be spread by self-identified protest leaders, which had perpetuated the situation
• We had been clear that the UNHCR could not offer group resettlement or relocation
• The UNHCR had repeatedly encouraged constructive dialogue to address the issues that protesters had put forward
• We also reinforced the point that refugees and asylum-seekers were not above the law, and must abide by the laws of the country, as did everyone within the borders of South Africa

Throughout the protest, the UNHCR and partners had continued to provide assistance through their regular programme, maintaining equal treatment and access to assistance for all refugees and asylum-seekers. In other words, there was neither special treatment, nor punitive treatment, for protesters, and they could seek out services on a par with all others through established mechanisms.

(See document for “Considerations)

Discussion

Ms L van der Merwe (IFP) said this was a sensitive matter, but clearly Members were now dealing with a group of foreign nationals that were not governable. They had gone as far as attacking the law enforcement, government and other officials. It was a struggle to pinpoint where this had taken place in another country. These individuals were now out on bail and were still committing crimes, and one of them had been accused of sexual assault.

However, the Minister should consider having refugee centres at the borders so that when people enter the country, they were assessed there to establish whether they were legitimate asylum seekers., There were about 232 of this Cape Town group that were still not documented -- how long would it take to document these refugees? The section 32 permits were problematic, and they keep being renewed.  

How long would it take to finalise the applications of the group? She was also pleased that there were no incidents of xenophobia that had taken place, and wanted to know which communities the refugees had come from.

She asked the Minister to comment on the way forward, and whether there had been any engagements with the Minister’s counterparts at an international level regarding the refugees in question, particularly the countries from which the refugees had come.

Mr Balus had had his permit rejected in 2007, and it was now 2020. She found it very difficult to understand how it could possibly take 14 years to explore all legal processes regarding the application of an asylum seeker. She was not pleased about this, and asked for further details about Mr Balus. Lastly, she asked for details around documenting all undocumented migrants within the South African borders.

Mr A Roos (DA) wanted to know whether the Minister’s thoughts on sending the migrants back home would eventually prevail. He asked whether anybody had investigated the claims of attacks, because if they had been, the bad elements from within these groups could have been isolated and exposed. The 1951 Convention required protection for legitimate asylum seekers, because the government should have isolated the legitimate ones from the bad apples. He believed that the Department of Home Affairs had failed in this regard.

The Regulation of Gatherings Act created a significant challenge, because somehow it contributed to the escalation of this matter. Parliament needed to look into this.

The South African Police Services also had a duty to implement bylaws, if the claim remained that the City of Cape Town had done nothing. Before all of this happened, there had been a national plan to combat xenophobia and racism against foreign nationals. Since 2016, the City of Johannesburg had been appealing about the protection of the street vendors that were being attacked, but this was ignored. There was a national action plan that was ready to be rolled out, so what was the Minister’s understanding of that plan, and where were they in terms of implementing that plan?

Lastly, he wanted to know whether Mr Balus’s permits had expired and the process to follow regarding his misdemeanors.

Mr D Moela (ANC) indicated that there was consensus on the way forward and there was no need to grandstand on this, because it was a matter that needed all parties to come together. He concurred with Ms Van der Merwe that SA was a country with its own laws, and it could not be correct to allow people to come to South Africa and break its laws. No South African went into another country and expected to be given special treatment. It was SA’s duty to protect its laws. If people could not follow its laws, they must be sent back to where they came from. One could not allow a situation where people came into the country and did as they pleased.

Mr J McGluwa (DA) was not happy that the South African Police Service (SAPS) was not present to also make a presentation on this matter. He viewed this action as contempt for the Committee. What had happened in Cape Town were the symptoms of an existing problem, not the cause of the problem. Home Affairs must take responsibility for what had happened in Greenmarket Square, because the Minister had emphasised how the spheres of government must work together. 

What had happened to the Department’s exclusive responsibility to attend to issues of this nature? There were officials in this Department who had sworn allegiance to this country but there were intense challenges at the borders. The Department did not even have the statistics of the total foreigners or refugees in the country.

The Department must explain the vacuum at the borders of this country. If it failed to address the illegal entries into the country, this problem would continue.

Mr N Nkwankwa (UDM) said it seemed that there was a tug of war between the City of Cape Town and the Department. Members were not here for that. He expected a solution from the stakeholders; he expected one voice from the stakeholders, not the problems. It was good that these issues had been ventilated, but Members were not going to sit here and entertain this engagement.

Regarding the UN Convention of 1951 and the other conventions, one could not help but think that some of them were written for different contexts. Looking at the processing centres, for example, it said one could not turn someone away until they had gone to a processing centre, and most of the developing countries had their processing centres within their countries, and that created chaos. It allowed people to come into the country without being processed at the border. How was the Department able to track people who had been in the country for three or four days if it could not trace people whose visas had expired after 90 days?

There was a need to solve the problem of the refugee processing centres at the borders, because there were people within South Africa who were not accounted for. The other issue was the conventions which talk about the responsibility of the state to protect refugees. He agreed with this statement, but it was based on the assumption that the refugees and asylum seekers were always going to behave in that country. What did it say in the instance where they did not behave, like in this instance? It was simple -- they must go. However, one must isolate the criminal element, so that those that had been misled were integrated back into their communities.

What had happened with the intelligence services? In these instances, they were supposed to infiltrate these groups and isolate the criminal elements and have them taken out of South Africa. There was only so much one could tolerate.

He had been in a meeting in the townships a few days ago, and the members of the community had said plainly that if the state failed to resolve this issue, the people would resolve it themselves because the state had the responsibility to enforce the laws of this country. Laws were the reflection of how South Africa wished to organise itself, and how South Africans wanted to be governed. If one undermined the laws, one was not only undermining a piece of paper that had been passed by Parliament, but the will of the people of South Africa how they had stated they wanted their affairs to be structured. This was what South Africans could not tolerate.

If people wanted to go to Canada, what does that have to do with South Africans? These people did not go to Canada in the first place -- they came here. They did not go to other African countries, but came here, so if they want to go to Canada, they must go. It should not the government’s responsibility to relocate them, particularly in instances where the demands are unreasonable.

There were instances where the people were using children as a shield, because they did not want to be arrested. This placed certain people above the law, just because they were women or they had children to look after. That could not be allowed, because they could easily be used to push agendas of other individuals who wanted to do as they wished in the country.

Some of these people had been asked to make financial contributions to these groups and to the leaders. The monies were to sustain the leaders so that they could continue fighting for them to be taken to third countries.

Mr Q Dyantyi (ANC) said that the problem was not that people came into the country, but that SA’s laws were being challenged, ignored and neglected. Legislation for the regulation of borders had recently been passed, and the issue that must be focused on and addressed was that one needed to deal decisively with individuals who come into SA and break the laws.

On the way forward, two options had been presented, which included the reintegration of the displaced communities. However, the problem was that these refugees do not want that. For this option to be successful, the City of Cape Town (CoCT) had said that 600 people had gone back to where they were coming from, but there was no clear indication of who these people were, where they were, or what they were doing. The second issue with the CoCT was the housing matter -- where did these individuals come from, and where did they go back to? The lack of details, or a written presentation, was problematic.

Were the sexual abuse matters reported? Were there any specifics around those cases? Members needed specifics on such serious assertions. There was the lack of a road map of the reintegration that had been mentioned earlier by the City of Cape Town officials.

Lastly, what the country was offering was not being accepted. Therefore, the only option was to have them taken back to where they came from. There was a need to know how the UNHRC was going to assist in ensuring that these refugees were sent back to their native countries.

The SAHRC had mentioned that there were vulnerable groups amongst the refugees. However, this was not clear because there were no detailed facts about who was vulnerable amongst the groups. The homeless people in Cape Town every night were checked and removed from the City, and this created a certain prejudice against certain members of the public.

Mr M Lekota (COPE) said that Home Affairs had provided a direction on where the problems had started, and had made it clear that various stakeholders had began to appreciate their roles, guided by the judgments of the courts. In fact, the only problem now was the individuals that insisted on leaving the country, and that was the group that was in Cape Town.

These people came to this country on their own accord and were afforded the opportunity to make a living. It seemed now that they were having another agenda, and were now making demands to be sent to Canada. South Africa was not a travel agent, and could not be exploited by people had come into the country illegally in the first place.

South Africa had always had people coming in from other countries since the discovery of the mines in Kimberley. People had come from India and grown sugar cane here. He refused to believe that South Africa was a xenophobic country. People in this country had been living in unity, so where was this xenophobia coming from? 

South Africa was one of the most cosmopolitan countries in the world. Secondly, many of the people that came here came from conflict ridden areas. South Africa contributed to the UN financially. The UNHRC must take the money that SA had contributed to assist in looking after the refugees. South Africa was not the only country that was required to adhere to international laws -- all other countries must play their roles. Why were these individuals crossing country after country to get to South Africa, and then demanding to be taken to Canada or Namibia? This was unacceptable, and must not be allowed.

Ms L Tito (EFF) said that there was a budget to provide temporary shelter for these people, but the Department of Social Development had refused to do so. These individuals had addresses, so why was nothing being done to track them to ensure that they were found? She asked which departments were not coming on board to assist in dealing with this issue.  

Ms T Legwase (ANC) asked how far the City of Cape Town was in implementing the reintegration, or sending refugees back to their countries. Members need to be provided a progress report on the assessment of the individuals that had been mentioned.

Mr M Hendricks (Al-Jama-ah) said that a political solution was needed, and it looked like the President must take the lead as the head of the African Union. There should be a three months’ moratorium, and an approach to the CoCT to organise with the Department of Public Works (DPW) for an empty structure that could be used for temporary accommodation. After the three months, they must be sent home. The President must make a decision that these individuals should be repatriated to their own countries. A Presidential solution to this was needed.

Ms H Mkhaliphi (EFF) said this was a very sad matter, because Members seemed to want to isolate these incidents. They had occurred in Cape Town, and it led to xenophobic attacks. She attributed the current situation to the colonial borders that were previously imposed on the continent. When they tried to separate the people, they knew that they were going to fight over crumbs. In order to address this issue, one needed to be fair in ascertaining the situations in their own countries, and then come up with a holistic solution. If this matter was treated in isolation, there would be no solution.

The Minister had indicated that the CoCT had failed to play its role, and there were colleagues who were saying that Home Affairs wanted to play the blame game. In the court order, it had been clear that the stakeholders had to go and find a lasting solution. In Durban during December, there had been a similar situation, so clearly one was witnessing crises occurring all over the country.

Africa had to unite, but one could not support anarchy. Even South Africans, if they commit crimes, must be punished. The DHA must have a clear plan, review the policies and work with various stakeholders to ensure that South African laws are enforced.

The City of Cape Town did not treat black people from other countries the same way they treat Europeans. That was a fact, but there was a need for everyone to come together. Criminals must be separated and dealt with appropriately. The Department must go back to the drawing board and come up with a lasting solution.

Immigration lay with the Department, and it must be on top of things. Clear planning on dealing with immigration must be adopted. Even though the Minister had interacted with three mayors, there was no way forward, which made it clear that the Department was dealing with this matter with kid gloves. In this matter, the DHA must ensure that it plays a coordinating role.

Mr M Chabane (ANC) agreed with Mr McGluwa regarding the SAPS’s apology for not attending the meeting. The focus of the issue was on the current situation, and the Department had reported to the Committee on the overall challenges that affected it on the borders, as well as the weaknesses.

The position of the Department and the UNHRC provides some guideline in terms of going forward. There was no country that could allow its own citizens to show a middle finger to the Constitution of the country. There were foreign nationals that were integrated within the country and were living in the townships, and it must be made clear that this was an isolated incident which needed to be dealt with. Failure to resolve this matter quickly would lead to more problems of this nature in the future.

The South African Local Government Association (SALGA) needs to participate actively in ensuring that the municipalities themselves took on the responsibility of enforcing their bylaws. When the country was plagued by xenophobia in 2008, the President had gone on a mission across the world to speak on the matter, and had assured the international community that this matter was being dealt with. The same stance needed to be taken.

Ms P Majodina (ANC) suggested an integrated approach that would cover all aspects of this matter. Political agendas and motivations had to be isolated, and the repatriation timeliness must be clear in the plan.

Responses

City of Cape Town

Ms Markram spoke on the failure to enforce the bylaws, and explained that this because of the court order not be enforce them. Secondly, the City had offered a place and shelter to the people who were affected but it was a difficult situation because it seemed that everything it offered would be refused.

SAHRC

The Commissioner said that from the beginning of the interaction with the refugees, there had been a roadmap produced on how to deal with the situation. There were also cases that were laid with the SAPS in connection with sexual abuse.

The mere fact that there were children out there without shelter and basic services was gravely concerning. However, there were people from the Greenmarket Square group that had come forward requesting to be integrated back into their communities. The group in the church had refused to leave, and were blocking people from accessing the church. The minister of the church was gravely concerned about this, because the church was a place that was open to everyone.

These people came from all over -- there were one or two that came from Kuruman, and one family from Durban. When the refugees spoke about going to Canada, everyone else had come because they thought, and still believed, that they would be taken to Canada. There were refugees who were now refusing to leave because they believed that the group that was still in the church would be taken to Canada.

UNHRC

Ms Gaanderse commented on repatriation, and said that UNHCR supported voluntary repatriation to the places of origin that were conducive to a safe and sustainable return in dignity. The key word was “voluntary.” They recognised that some of the protesters had engaged in criminal conduct, and emphasised again that refugees were not above the law. However, the UNHCR would urge stakeholders to be mindful of the principle of non-refoulement, a cornerstone of international refugee protection, which prohibits the expulsion or return of a refugee to the border of a territory where his or her life of freedom would be threatened. It was for this reason that refugees and asylum-seekers who engaged in criminal activity were subject to the national criminal justice system of the country where they had sought asylum.

From this, one could take a few positive points, and it was good to see that there had been a comprehensive approach, with engagement from multiple stakeholders. The UNHRC would play its part, but one had to distinguish between those who had committed criminal acts and those who were still willing to go back to their communities.

Department of Home Affairs

Minister Motsoaledi said that SA was a democracy, and when the courts had ruled, they must be obeyed. When he came before the Committee, he had quoted judgments that had come from the courts, laying out what each stakeholder should have done and should still do in playing their part in this situation.

It would be wrong to regard everybody who was in South Africa from another country as an illegal migrant. Statistics showed that 38 people were undocumented in Pretoria, and 356 were documented, which meant that they were eligible to the basic services available to all South Africans because they had a right to be here. Once one had a section 24 permit as a refugee, one had every right except the right to vote, but one did not get those rights from the Department of Home Affairs. When a documented refugee had an issue, even if it was about water or ablution services, people made it a Home Affairs problem.

He had written to SALGA and tried communicating with the mayor of Tshwane, because immediately after the first court case, he had written a letter and informed him that this was his matter. There were bylaws in the country that had to be enforced. People needed to refrain from pointing fingers and blaming everything that had to do with foreign nationals on the Department of Home Affairs, especially people with Section 24 permits and those who were documented in the country.

The mayor of Tshwane had written a letter and run away from implementing the bylaws and what the residents were saying. He had made it a Department of Home Affairs issue, when it required him to enforce the bylaws. The mayor had taken that letter and given it to Mr Roos -- a member of his political party -- and this was confirmed by the fact that Mr Roos wrote an article in the Citizen condemning Home Affairs for not doing its work. The information contained in that article was information taken from the mayor’s letter.

When the judge had said people must be assessed, he was suggesting that they must be assessed individually, and that job was given to the City of Cape Town. That would have assisted in identifying where these individuals had come from and their status. The Department had conducted that exercise, but it had been ordered by the court not to release that information.

Way forward

The Chairperson said that from the engagement, it seemed that there was consensus on what should be done as a way forward. Timeliness needed to be provided, as progress reports came before the Committee.

The Committee would give the Department and the City of Cape Town a month to come up with an active and progressive plan on how to move out of this situation in a manner that was dignified and upheld the Constitution of the Republic, up until point where these refugees were taken home.

The report would include individuals that had been deported, individuals that had been integrated back into the communities, and the status update. Both the Department and the City of Cape Town would work on this, and the Committee would monitor progress on a weekly basis.

The Minister said that the judgment about the CoCT was about the people who were outside the church, not inside the church.

The meeting was adjourned.