By Lesirela Letsebe

South Africa is a signatory to, among others, the 1951 United Nations Convention relating to the Status of Refugees (UN Convention), the 1967 Protocol Relating to the Status of Refugees and the 1969 Organisation of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (OAU Convention). To give effect to its obligations under these and other relevant international law instruments, principles and standards relating to refugees, in 1998 South Africa enacted the Refugees Act 130 of 1998 (Refugees Act), which was later amended by the Refugees Amendment Act 33 of 2008 (Refugees Amendment Act). Section 1 of the Refugees Act defines ‘asylum seeker’ as ‘a person who is seeking recognition as a refugee in the Republic’, and ‘refugee’ as ‘any person who has been granted asylum in terms of this Act’. ‘Asylum’ under this section denotes ‘refugee status recognised in terms of this Act’. The elements that could influence a determination on whether or not an asylum seeker should be granted asylum are described in the definition of ‘refugee status’ in s 3 as follows:

‘[A] person qualifies for refugee status for the purposes of this Act if that person –

(a) owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or

(b) owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere; or

(c) is a dependant of a person contemplated in paragraph (a) or (b).’

Section 3(b) is derived from art 1(2) of the OAU Convention that takes cognisance of Africa’s peculiar history where foreign powerful nations with imperialistic and colonialist interests on the continent, violently invaded powerless countries; or fermented internal conflict and sponsored civil wars to gain access to affected countries’ land and natural resources, as wars raged. While this happened, affected countries’ citizens faced displacement and forced movement into foreign countries to seek asylum (see for example, L Weinstein ‘The New Scramble for Africa’ ISR Issue 60, July – August 2008 (www.isreview.org/issues/60/feat-africa.shtml, accessed on 4-6-2014)). This is still a reality in many countries in Africa, especially the African Great Lakes region.

According to para 37 of the United Nations High Commissioner for Refugees Handbook and Guidelines on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook), the phrase ‘well-founded fear of being persecuted’ is the key phrase of the definition of refugee status. Accordingly, it implies that it is not only the frame of mind of the person seeking asylum that determines his refugee status, but that this frame of mind must be supported by an objective situation. The phrase ‘well-founded fear’ therefore contains both subjective and objective elements, and in determining whether well-founded fear exists, both elements must be taken into account (para 38, UNHCR Handbook). That an asylum seeker should be presumed to have a well-founded fear of persecution and should be given the benefit of the doubt until the status determination process is concluded otherwise, is best set out at para 39 of the UNHCR Handbook as follows:

‘It may be assumed that, unless he seeks adventure or just wishes to see the world, a person would not normally abandon his home and country without some compelling reason.’

The peculiar nature of refugees’ circumstances is best summed up by Kondile J in Union of Refugee Women and Others v Director: Private Security Industry Regulatory Authority and Others 2007 (4) BCLR 339 (CC) as follows:

‘Vulnerability of refugees

Refugees are unquestionably a vulnerable group in our society and their plight calls for compassion. As pointed out by the applicants, the fact that persons such as the applicants are refugees is normally due to events over which they have no control. They have been forced to flee their homes as a result of persecution, human rights violations and conflict. Very often they, or those close to them, have been victims of violence on the basis of very personal attributes such as ethnicity or religion. Added to these experiences is the further trauma associated with displacement to a foreign country.

The condition of being a refugee has thus been described as implying “a special vulnerability, since refugees are by definition persons in flight from the threat of serious human rights abuse.”’

Perpetrators of persecution

According to the UNHCR Handbook (para 65), persecution normally relates to action by the authorities of a country. It may also emanate from sections of the population that do not respect the standards established by the laws of the country concerned. Where serious discriminatory or other offensive acts are committed by the local populace, they can be considered as persecution if they are knowingly tolerated by the authorities, or if the authorities refuse, or prove unable, to offer effective protection.

Prohibition against forced return of asylum seeker or refugee to country of persecution: The principle of non-refoulement

The UN and AU recognise the special case and particular vulnerability of refugees by prohibiting any measures by State parties that are geared towards refusing refugees entry into State parties’ territories, their expulsion and extradition or return from the host countries. Consistent with arts 33 of the UN Convention and 2(3) of OAU Convention, read together with art 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, s 2 of the Refugees Act extends refugees’ protection thus:

‘General prohibition of refusal of entry, expulsion, extradition or return to other country in certain circumstances –

Notwithstanding any provision of this Act or any other law to the contrary, no person may be refused entry into the Republic, expelled, extradited or returned to any other country or be subject to any similar measure, if as a result of such refusal, expulsion, extradition, return or other measure, such person is compelled to return to or remain in a country where –

(a) he or she may be subjected to persecution on account of his or her race, religion, nationality, political opinion or membership of a particular social group; or

(b) his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order in either part or the whole of that country.’

The above protection is non-violable in international law and enjoys recognition in terms of art 53 of the Vienna Convention on the Law of Treaties (Vienna Convention) as follows:

‘For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognised by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.’

In Abdi and Another v Minister of Home Affairs and Others 2011 (3) SA 37 (SCA) Bertelsmann AJA, held as follows:

‘The appellants would face a real risk of suffering physical harm if they were forced to return to Somalia. It is obvious that no effective guarantee can be given that the appellants would not be persecuted or subjected to some form of torture, or cruel, inhuman and degrading treatment if they are compelled to re-enter that country. It is the prevention of this harm that the Act seeks to address by prohibiting a refugee’s deportation. Deportation to another state that would result in the imposition of a cruel, unusual or degrading punishment is in conflict with the fundamental values of the Constitution’ (at para 26).

Under s 28 of the Refugees Act, a refugee may be removed from the Republic in the interests of national security. However, the Minister of Home Affairs must afford a reasonable time to the refugee concerned to obtain approval from any country of his or her own choice (other than his or her country of nationality where he or she in the first place fled persecution), for his or her removal to that country.

The UNHCR Handbook distinguishes between economic migrants and refugees (see para 62). The distinction is found in the voluntary nature of the economic migrants’ movement from their countries to others, as opposed to the often imminent and coercive nature of the refugees’ movement. The one is jovial and adventurous, while the other is inevitable, leaving the affected with the difficult options either to flee, or stay and face consequences. Economic and other forms of migration are governed by the Immigration Act 13 of 2002, which requires those intent on travelling to the country to seek prior permission.

Refugee status not always indefinite

Persons that have gained recognition as refugees will under s 5 of the Refugees Act cease to be so recognised if they re-avail themselves of the protection of their country of nationality; or having lost their nationality, they reacquire it voluntarily by some voluntary and formal act; or they become citizens of the Republic, or acquire the nationality of some other country and enjoy the protection of the country of their new nationality; or they voluntarily re-establish themselves in the country which they left; or they can no longer continue to refuse to avail themselves of the protection of the country of their nationality because the circumstances in connection with which they have been recognised as a refugee have ceased to exist and no other circumstances have arisen which justify their continued recognition as refugees. Section 27(c) of the Refugees Act is an exception to the rule that refugee status is not indefinite. A refugee may under this provision apply to the Standing Committee for Refugee Affairs (SCRA) for a certification that he or she will remain a refugee indefinitely, in which case he or she can, once so certified, begin applying for an immigration permit.

Conclusion

In the unstable world in which we live, where various interests and alliances continue to grow, shift and conflict, no country is guaranteed peace. Anyone is a potential asylum seeker in another’s country in a predictable or unpredictable future. If we appreciate this, we should be compassionate with refugees and understand that they are not in this country on a holiday, but are here because they need humanitarian protection until human rights abuses in their own countries have ceased. All they need to do is abide by the country’s laws like every other citizen or economic migrant.

Lesirela Letsebe BIuris LLB (University of Limpopo) LLM (UP) is an attorney at Lawyers for Human Rights in Johannesburg.

This article was first published in De Rebus in 2014 (July) DR 25.