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International judges have slammed the lackadaisical approach South African courts take towards foreign nationals, lamenting that they have set a precedent for countries with stricter immigration laws.
Home Affairs Minister Aaron Motsoaledi addressed Parliament’s portfolio committee last week, calling for an overhaul of the country’s legal regime, which currently allows for a serious abuse of systems by foreign nationals.
“I’m sure you are aware that after 1994 we went all out to be a model country and did things which nobody else in the world was doing, and were not aware that reality is not like that. There is a lot of abuse of our systems. Just to give you an example, two weeks ago there was a conference here in Cape Town of international judges on migration. One of their complaints was that in South Africa we are making judgments that are impacting negatively on them because the judgments are being quoted by international non-governmental organisations as benchmarks,” Motsoaledi said.
He referred to two judgments which he said were causing problems.
In one instance, a court ruled that a foreign national could look for employment while awaiting the outcome of their refugee status application.
He said a number of employers then began abusing that judgment, citing it when hiring undocumented immigrants.
“They avoid hiring South Africans deliberately. I have seen that with truck drivers,” he said.
According to South African law, people seeking asylum are given a section 22 permit that allows them to be in the country for three to six months.
Motsoaledi said the permit allowed for asylum seekers to be classified as legal even if they entered the country illegally.
Read: SA must implement stricter immigration laws
The second judgment protects undocumented immigrants from arrest even after the section 22 permit has expired.
“These things are causing problems. International judges are saying they don’t have such things in their countries, but if South Africa [makes such judgments then they] are going to be affected. If it is judges who complain, you can imagine the kind of trouble we are in.”
Speaking on the abuse of systems, Motsoaledi claimed that 95% of foreign nationals who applied for asylum were, in fact, jobseekers.
According to home affairs, of the 16 041 applicants from the top 10 countries that made submissions for asylum, only 1 439 were granted.
The majority of those who were granted asylum were from the Democratic Republic of the Congo (DRC), followed by Somalia and Ethiopia.
“The 1951 Refugee Convention, upon which our Refugees Act of 1998 is based, was unambiguous on who qualifies for refugee status. There must be war in your country; tell me, where is there war on the continent? Or in Pakistan or Bangladesh?
“Tell me where there is war; even in the DRC the war is in one region. Number two, you must be persecuted for political, religious, cultural, traditional or gender reasons. It says so.
“I know the issue of gender persecution is all over Africa, people talk very carelessly about it. But there are very few areas where there are actual persecutions. For instance, in Kenya they passed an anti-gay act but they don’t apply it, but people come here and say: ‘I am running away because there is that act.’
“But the act says you must give proof. Most of the people who come to our reception centres – be it Cape Town, Port Elizabeth, Durban or Musina – cannot prove what the act does, but the courts look at them as people who have run away, whose lives are in danger.”
He went on to say that those who were unsuccessful in appealing their rejection for asylum turn to impregnating or marrying South Africans as plan B.
“While you wait to appear in court you get married to a South African. That whole appeals process then falls off because now you have a partner here. Most ominous is that the court says when you make a ruling you must make it in favour of children ... therefore they impregnate locals and say ‘I have a child here, I am not leaving’.
“I am sure you are aware that I am not exaggerating because [in the past financial year we recorded] 632 marriages which were said to be fraudulent, but they were not fraudulent. People get married for this type of transaction and thereafter they want to cancel the marriage.
“When we [the department] refuse, they go to those who went to Wits Law Clinic and start crying that they were married illegally by officials. They are not illegally married, they just think it is time to terminate the marriage but don’t know that once you marry legally the only way to terminate the marriage is through divorce, and you must go to court for that. Plus you need money and a lawyer, and they don’t have either.
“So we need to review our legal regime. Is there any way in which we can change some of these things because they are being used against the country?”
In emphasising that South Africa is not xenophobic, Motsoaledi said that arrangements had been made at certain borders where officials look the other way for those frequently entering the country from neighbouring countries for schooling and work purposes.
“How can we be xenophobic when we have more baSotho than Lesotho, more baTswana than Botswana? More Indians than anywhere else in the world other than in India?”
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