1. Executive Summary………………………………………………..Annexure A

2. A Report on the proceedings of hearings…………………………..Annexure B

3. A Summary of the Recommendations……………………………..Annexure C

4. Background Paper for Open Hearings……………………………..Annexure D

Background Paper: Open hearing on xenophobia and problems relating to it (SAHRC, 28 October 2004).

Mr Jody Kollapen, Chairperson, SAHRC

Ms Zonke Majodina, Deputy Chairperson, SAHRC

Mr Dumisane Job Sithole, Chairperson, PPFA

Ms Nonkumbi B Gxoloa, Member of Parliament, PPFA

Ms Hloni Mpaka, Member of Parliament, PPFA

Mr Mewa Ramgobin, Member of Parliament, PPFA

Mr Joe Seremane, Member of Parliament, PPFA

Mr Len K Joubert, Member of Parliament, PPFA

Mr Tom Manthatha, SAHRC

Session One

Chairperson: Mr Jody Kollapen, Chairperson, SAHRC

Mr Kollapen opened the meeting at 09h30. He welcomed participants to Human Rights House and extended a special welcome to Mr Sithole, the chairperson of the Parliamentary Portfolio Committee on Foreign Affairs and his five-person delegation. Mr Kollapen went on to introduce Ms Zonke Majodina, the deputy chairperson of SAHRC and Mr Tom Manthata, also from the SAHRC

He explained how the meeting represented the first joint hearings between the SAHRC and a portfolio committee, saying that this gave credence to the partnerships, which are often talked about.

He went on to explain that according to the provisions set out in the South African Constitution the SAHRC is accountable to Parliament, who in turn has an important executive role to play.

Introducing xenophobia as an important issue of mutual concern, Mr Kollapen highlighted that these hearings represent a genuine attempt to promote democracy through ‘government by discussion’. He emphasised that the SAHRC and the PPFA do not have the answers to the difficult questions posed by xenophobia and the hearings would enable them to engage with broader society around these issues.

He recognised that xenophobia exists across the world and the implication is not that South Africa is more xenophobic than other countries but rather that concern stems from South Africa’s commitment to human rights, which recognises the inherent worth and dignity of every person regardless of their status in life. Xenophobia is in opposition to the very spirit of South Africa’s Constitution and the type of society that it depicts.

He reiterated that parliamentary hearings normally carry immunity and this immunity would also apply to these hearings on xenophobia. This should promote openness and the collection of a representative range of perspectives from all sectors of South African society including civil society, government agencies and individuals living in South Africa.

He concluded that the SAHRC and the Portfolio Committees would prepare a joint report and recommendations would be made.

Mr Dumisane J Sithole, Chairperson, PPFA

Mr Sithole thanked participants for supporting the portfolio hearings. He explained that the PPFA is interested in tackling this issue and how it relates to the Department of Foreign Affairs, including issues such as foreign affairs legislation. Agreeing that while xenophobia may be worse in other countries, he stressed that if the issue is not tackled head on it may become a greater problem.

He went on to explain that the PPFA is divided into two seventeen-member sub-committees. The panel at the xenophobia hearings included three members from each sub-committee, who would be responsible for reporting back to the remainder of the Portfolio Committee, who are currently in session in Parliament.

He went on to introduce the five representatives:

• Ms NB Gxoloa
• Ms Hloni Mpaka
• Mr Mewa Ramgobin
• Mr WJ Seremane
• Mr LK Joubert

He revealed that the SAHRC has done significant work in promoting and protecting human rights in South Africa and the Portfolio Committee feel that they have an important role to play in coming up with recommendations around xenophobia.

He emphasised that South Africa, with its racist background, understands the suffering involved in discrimination. Because of this the country needs to be both proactive and to lead the rest of Africa. The hearings would help the Committee to hear testimony from the very individuals who are experiencing this discrimination so that an appropriate public policy can be developed and the issues can be understood accurately.

He reassured participants of the confidentiality of their testimonies and acknowledged that this initiative was overdue and should probably have taken place soon after the World Conference Against Racism (WCAR) in 2002.

Chairperson: Mr Jody Kollapen, Chairperson, SAHRC

Mr Kollapen thanked respondents who had submitted written submissions. He noted that not all written submissions would be presented because respondents were unable to attend the actual hearings. He also warned that there might be some deviation from the programme. Each respondent was allocated 20 minutes for their presentation followed by a short discussion and questions from panellists.

Presenter: Kajaal Ramjathan-Keogh, LHR

Providing some background information about LHR, Ms Ramjathan-Keogh highlighted that it was a national organisation which has sought to promote human rights since its inception in 1979. The Refugee Rights Project was established eight years ago to promote the rights of refugees and has also provided technical support to a number of government departments. She stated that LHR commends the rights-based framework contained within the Refugees Act of 1988, the Immigration Act as well as other pieces of legislation, which all discourage xenophobia. However, she stressed that xenophobia is still an obstacle to equality, dignity and freedom.

She revealed that among the global population of 6,3 billion people, there are an estimated 175 million migrants including over 14 million refugees and just over 1 million asylum seekers.

Her submission focused on four areas:

The issue of arrest and detention of migrants accused of being illegally in the country; the implications of the immigration enforcement mechanisms on unaccompanied migrant children and their best interests; the lack of integration of refugees in government services delivery frameworks and unfair labour practices.

She maintained that although the Refugees Act and Immigration Act go some way in protecting the rights of refugees and migrants government has failed to effectively implement it in a rights-friendly manner. Similarly government has failed to incorporate the concerns of refugees and migrants in other legislation and policies, such as social assistance and health care. As a result refugees and migrants are unable to access much needed assistance and protection. This sentiment has a roll over effect into the South African citizenry who feel their xenophobic attitudes justifiable in the face of the government practices.

She also noted that LHR is concerned about the conditions of detention and deportation nationally. From its observations of detentions at the Lindela Repatriation Centre and at the South African – Zimbabwean border (Beitbridge) the organisation is concerned that South Africa may not be living up to its international commitments and obligations in terms of its treatment of migrants especially asylum seekers and detainees. There is concern that South Africa may be returning asylum seekers to the country where their lives of freedoms may be a risk before they were given an opportunity to make applications for asylum.

She then went on to highlight various points:

The Centre for Child Law successfully appealed the case of 100 children in detention at Lindela Deportation Centre. This culminated in a precedent-setting judgement in October 2004. The judgement includes some of the following provisions:

• It is unacceptable to hold children in detention pending deportation
• Pending deportation, children must have legal representation assigned to them.
• No child may be deported in the same manner as an adult.
• No child may be detained at Lindela.
• Pending deportation, children should be referred to a social worker where the Children’s Court will determine the outcome.
• All children in South Africa fall under the Child Care Act, which addresses the prescribed treatment of children in greater detail.

Increasingly private companies at the airport are detaining individuals in an attempt to avoid the payment of carrier sanctions for carrying undocumented migrants. Detainees are held in a small room without windows, furniture or other facilities.

In September LHR conducted a three-day site visit to this border. During this time the South African Police Services (SAPS) and the South African National Defence Force (SANDF) deported over 1000 Zimbabweans. Most of those deported are detained in the Musina area where conditions are appalling. At the police station detainees are fenced in an outdoor enclosure under a tree. There is not access to no ablution facilities or water, and detainees are exposed to extremely hot weather conditions. Their detention can last from one hour to three days.

Refugees and asylum-seekers are not accorded any material assistance from the government and are required to meet their own socio-economic needs. The private sector regulating authority has refused to register refugees and asylum-seekers, although this is required by legislation. This creates an environment that is conducive to exploitation because the basic conditions of employment for refugees and asylum-seekers are not enforced.

The security industry is the greatest employer of refugees and asylum-seekers. They experience high levels of exploitation in this sector. Nurses also are discriminated against.

Children and disabled refugees face greater challenges and risks than other refugees. South Africa’s social assistance legislation restricts grants to South African citizens or permanent residents. South Africa under the Constitution has a moral and legal obligation to protect and assist refugees and asylum-seekers. Given that refugees and asylum-seekers are not able to access protection of assistance from their countries of origin makes them even more vulnerable than permanent residents in a similar position and should therefore also have access to social assistance.

Ms Ramjathan-Keogh concluded:

South Africa has one of the world’s most liberal constitutions, which applies to all who live in the country. Foreigners living in South Africa cannot, however, derive the same benefit from it as South African citizens. Laws are not always operationalised by government. As a society South Africa’s treatment of foreigners needs to be challenged. This could be done through the establishment of an inter-governmental body using the recommendations developed during WCAR as a platform for action.

In closing Ms Ramjathan-Keogh stated that her submission provided a glimpse into some of the issues and challenges refugees and asylum-seekers face as a result of restrictive government policies and discriminatory implementation. LHR hopes that these hearings will increasing awareness of the plight of foreigners in South Africa and will motivate the government to recognise the extent of xenophobia not only in South African citizenry but in government practice, thereby reinforcing South Africa’s commitment to Africa.

Mr Joubert asked:

• To what extent does LHR work with the Legal Aid Board to obtain permission to represent refugees?

Ms Ramjathan-Keogh responded:

• There is no formal relationship between LHR and the Legal Aid Board but we invited them to participate in the litigation around unaccompanied minors, which took place earlier this year. This litigation culminated in a court judgment, making it necessary for a children’s court to rule on cases involving these children. To date only one group have been to court and these were represented by LHR. In future when there are more court applications it is anticipated that the Legal Aid Board will be involved in representing these children.

Mr Ramgobin noted that:

• LHR’s paper assumed that xenophobia is just a juristic issue.
• South Africa should look to apartheid history to determine the significance of its recruitment of Europeans from countries like Hungary as well as the distribution of free contraceptives for black people. These policies aimed to decrease the black population, while increasing the white population.

Mr Ramgobin asked:

• Is the state solely responsible for the eradication of xenophobia?
• What role should NGOs and the church assume?
• What are the conditions for xenophobia’s non-existence?
• Would it be possible to say there is an over-emphasis upon the xenophobic tendencies of black South Africans against black foreigners?
• Is it correct to assume that South Africans are over-critical of themselves?
• Can we succeed in shifting the emphasis globally?

Ms Ramjathan-Keogh responded:

Mr Ramgobin concluded:

• Although government has enjoyed modest successe it does not lack a commitment to combating xenophobia.

Mr Seremane asked:

• What are the most common manifestations of xenophobia in South Africa?
• How would LHR recommend addressing prevalent negative stereotypes and attitudes as well as enhancing the integration of refugees and asylum-seekers into society?

Ms Ramjathan-Keogh responded:

• The manifestations of state xenophobia are outlined in LHR’s submission. Citizens’ xenophobia manifests itself in the attitudes of South Africans towards foreigners. These include myths that foreigners bring diseases to South Africa or they lure jobs and/or women away from South Africans.

Mr Manthata asked:

• To what extent are we guided by international trends in terms of detentions arrests?
• Xenophobia manifests itself in urban areas more than in rural areas. Has LHR documented immigrant professionals who have been treated xenophobically?

Ms Ramjathan-Keogh responded:

• South Africa doesn’t hold refugees and asylum-seekers in isolation or refugee camps, like England and Australia. In South Africa refugees and asylum-seekers live in urban-based centres and although they do not receive material benefits from government there are opportunities for them to become more integrated into South African society. Immigration control in many countries is increasingly becoming tighter. South Africa’s legislation in this regard is among the most progressive. In practice, however, our laws do not reach the people on the ground.
• LHR recommends that government ratify the International Convention on the Protection of Migrant Workers and Members of their Families and ensure that they are adhering to the legislation and conventions, which they have signed.
• It does appear that more foreigners are based in urban rather than rural areas (i.e. the five major cities). This could be because refugee reception bodies are located in these centres and there are more opportunities for employment. LHR has not documented this and so a deeper analysis is not possible at this stage.
• The International Organisation of Migration (IOM) has done research around immigrant professionals in the Southern Africa and this documentation is available from them.

Ms Gxoloa commented:

• The LHR’s submission contains a large amount of information. Chapter 9 Institutions, such as the SAHRC, should keep government informed about the type of issues and concerns raised in this submission by providing them with information and feedback like this.
• How do you work with religious organisations?

Ms Ramjathan-Keogh responded:

• LHR is currently working with Chapter 9 Institutions e.g. LHR currently has a cooperative agreement with the SAHRC around a joint research report about Lindela Deportation Centre. This will be available before the end of 2004 on the LHR and HRC websites. LHR also works with organisations like the National Consortium of Refugee Affairs (NCRA) Wits Law Clinic, Black Sash, Jesuit Refugee Services and a number of other service delivery NGOs and CBOs.

Mr Sithole commented:

• The submission seems to use the terms ‘refugees’, ‘asylum-seekers’ and ‘migrant workers’ interchangeably.
• How are migrant workers from neighbouring states, with similar languages, treated in comparison to those from more distant countries in Africa? For instance, people from Botswana and Swaziland tend to be accommodated while Zimbabweans are not.
• There should be a distinction between Southern African Development Community (SADC) foreigners and African foreigners from further afield to enable a deeper analysis of the extent to which racism within South African society still fuels discrimination along racial lines.
• Is there a difference between refugees who have been living in South Africa for many years and those whose refugee / asylum-seeker status is more recent?
• Prevalent stereotypes depict Nigerians as drug dealers, Zimbabweans as violent criminals and Mozambicans is petty thieves. These perpetuate the perception that refugees are criminals – to what extent is this real and to what extent is it conditioned?
• How much integration is there in areas like Hillbrow, Berea and Yeoville where high numbers of foreign nationals have settled. Are the majority of residents in these areas born outside South Africa? Do South African citizens start moving out when foreigners start moving in?

Ms Ramjathan-Keogh responded:

• There are different categories of migrants. Documented migrants are legally entitled to be in South Africa. These include permits for studying, refugee status and visas. An undocumented migrant would not have the required legal documentation. The term used in legislation is illegal foreigners. It is uncertain whether migrant workers are documented or undocumented.
• Zimbabweans and Mozambicans are attracted by employment and economic opportunities. These opportunities are a pull factor, which are added to the push factor of poverty in countries of origin.
• The acceptance of groups along linguistic lines predates national borders, when movement across the region was fairly fluid. These historical movements explain why there are similar cultures and languages in different parts. These commonalities make acceptance much easier.
• Possession of a green South African identity document creates a distinction between types of migrants rather than the length of their stay in South Africa. Those who have obtained this document are guaranteed of access to services.
• The perception that SADC refugees and asylum-seekers migrate to a country to acquire its resources is not just prevalent in South Africa. People from Botswana express similar feelings. The legalisation of SADC migration would enable SADC countries to support each other as well as introduce mechanisms to deal with legitimate issues like taxation of refugees and asylum-seekers.
• The number of foreigners in South African prisons is insignificant compared to the number of South Africans in prisoners. It is convenient to promote the perception that the majority of criminals are non-nationals.
• The composition of residents in areas with a large foreign population has not been assessed but LHR is aware of the extreme difficulties experienced by refugees and asylum-seekers who are attempting to obtain accommodation. The feeling is that they have no rights and they would not be treated like a South African in a similar situation.

Presenter: Joyce Tlou, National Co-ordinator, NCRA

Ms Tlou thanked the SAHRC and the PPFA for the platform created by the hearings.

She went on to explain that as an association of refugee organisations, the NCRA focuses on policy issues. Its work is conducted through member organisations in the network. Initially started by LHR as one of their programmes, NCRA became a fully-fledged organisation after significant momentum had developed.

Ms Tlou prefaced her testimony by stating that the paper was based on the premise that the background paper had addressed issues relating to definitions, manifestations and causes of xenophobia. These would also be covered in greater detail during other submissions. The submission aimed to introduce some solutions, which could be used by the SAHRC and the PPFA to address xenophobia as a form of discrimination based on a person’s nationality. The NCRA’s submission focused on policy issues.

In her submission, Ms Tlou noted:

• The Refugees Act, No. 130 of 1998 represents a progressive framework but the challenges lie in the interpretation and implementation of this act and the rights are refugees in South Africa continue to be undermined.
• Other enabling legislation is silent in addressing the rights of refugees and makes no provision for their socio-economic rights.
• The Refugees Act provides a framework for asylum determination but it fails to explain how refugees can realise their socio-economic rights. Policy makers and activists are thus required to read into and argue other legislation.
• Any policy must be informed by durable solutions to various challenges. The Consortium is aware of the balancing of challenges for the South African Government and conflicting demands with which they are faced. These include security, crime, human rights and economic issues. Policymaking involves prioritising certain issues.

Ms Tlou recommended:

• Policymakers need to look beyond xenophobia as rights issue - rather they should focus on the diverse ambitions that South Africa is aiming at in an increasingly global village.
• Raising awareness of the benefits that refugees and asylum-seekers can offer South Africa.
• Analysing how the country is facing up to the challenges of WCAR. South Africa has committed itself to the implementation of the national plan of action to eradicate xenophobia developed at WCAR. The country is obliged to adhere to the policies in that plan.
• Adopting policies that are inclusive rather than exclusive of foreigners.
• Increasing inter-governmental cooperation around policy issues. For instance, the Department of Home Affairs plans to establish a joint operations committee bringing together representatives from different government departments to assist with policy formulation. This needs to be operationalised.
• Constant and consistent monitoring of such policies. In the spirit of the South African Constitution, NGOs should reinforce rather than attack government.

Citing the example of the cross-sectoral Roll Back Xenophobia Campaign, Ms Tlou emphasised that there is only so much that NGOs are able to do. She appealed to government to play its role. This would create an environment where NGOs would compliment but not supplement government’s role. In this way South Africa would be significantly contributing to the fulfilment of durable solutions to refugees and affording refugees an enabling environment to live in dignity.

Mr Joubert commented:

• If xenophobia is a fear of the unknown, then isn’t the challenge to make the unknown known? Is this an oversimplification? Is there a basis for this fear in South Africa?

Ms Tlou responded:

• It is necessary to analyse the push factors as well as the pull factors, which make South Africa attractive. The economic environment seems to be the pull factor.
• There is an anecdote, which helps to explain this aggression and apprehension towards the ‘other’. A person is eating a meal when there is a knock at the door. The visitor is invited to share in the meal but - after the twentieth knock at the door - the host hides away, pretending that no one is home.

Mr Sithole commented:

• If South Africa adopts a multilateral approach, opting to defend human rights and the poor, how will the organisations raise awareness among the masses? Do organisations focus on multilateral approaches?
• South Africa is prosperous and democratic but racism is still prevalent. How does race shape how we relate to other people? Black South Africans are at the forefront of dealing with foreign nationals, whereas this issue does not really affect white South Africans.
• How do South Africa’s policies affect neighbouring states? Do they exacerbate xenophobia in the SADC region?

Ms Tlou responded:

• The Campaign is centred on building a deeper understanding of the conditions, which cause refugees and asylum-seekers to flee to South Africa. Tolerance can be fostered on this basis.
• The Campaign is attempting to challenge existing stereotypes by influencing the attitudes of the masses. This is the Campaign’s greatest challenge. It is easier to target specific groups such as police, the defence force, home affairs department or schools, but going out into the masses is critical. Government can assist through the formulation of enabling policies e.g. the Department of Home Affairs has committed itself to eradicating xenophobia in the draft Home Affairs Amendment Bill. NGOs also need to explore how they can complement these activities. It is critical that South Africa addresses these challenges because xenophobia is a form of racism.
• With regard to introducing an amnesty for SADC citizens, the NCRA was shocked to discover the high numbers of migrant labourers in South Africa and realised that migrants need to be regularised. How does the PPFA envisage that this would happen?
• With regard to patriotism and allegiance to a particular state there has been a blurring of demarcations. How do refugees and asylum-seekers divide their allegiances between South Africa and their countries of origin? This seems to relate to the issue of globalisation and why people move in the first place. It is necessary to analyse the benefits (and disadvantages) of globalisation.

Mr Ramgobin commented:

• South Africa’s conduct impacts negatively on foreign relations but the problems are rooted in the history of the struggle. Critics should not discard the concept of racism or overemphasise xenophobia as a black on black problem.
• The experiences of xenophobia in the European Union should be analysed.
• Partnerships with instruments of government and NGOs should be strengthened.
• Issues should be viewed in context. Crime, fear and the shedding of resources cannot be removed from the discourse. The promotion of a balanced approach is crucial. There is a need for a social contract to address this scourge.

Ms Tlou responded:

• The development and strengthening of partnerships underpins all of the NCRA’s activities. The Roll Back Xenophobia Campaign represents a partnership where civil society organisations work alongside Chapter 9 Institutions and provide technical assistance to government departments. This campaign depicts a model, which NCRA attempts to build into all its activities.
• Short-term humanitarian assistance in Mozambique has been initiated through the distribution of food parcels but there is a need for longer term planning. This could include the development of a policy establishing certain criteria under which non-nationals can qualify as ‘people in need’. The policy could also outline potential social grants and how they can be accessed.

Session Two

Chairperson: Zonke Majodina, Deputy Chairperson, SAHRC

Ms Majodina introduced Ms Belvedere from CASE, saying that CASE’s submission is informative, providing a number of solutions.

Presenter: Ms Florencia Belvedere, Acting Director, CASE

Ms Belvedere thanked organisers for this opportunity and stressed the need to develop the type of partnerships that had been discussed during the previous session along with the establishment of a number of entities. Ms Belvedere maintained that one of the main ways of addressing xenophobia would involve taking proactive steps to change perceptions and treat people in accordance with the South African Constitution.

Ms Belvedere provided an overview of CASE, an applied research NGO established in 1985. During apartheid this organisation play a key role in advocating for sanctions. Currently they are involved in a number of projects with government including evaluations of government programmes. They have also done extensive research around refugees and asylum-seekers.

Ms Belvedere revealed that CASE’s submission was drawn from some of this research, including:

• Various studies into policies - at a national, provincial and local level – addressing the needs of refugees regarding health and welfare conducted for the United Nations High Commission for Refugees (UNHCR) in 2001, and
• a national refugee baseline survey for the UNHCR in 2003.

In the baseline survey African refugees and asylum-seekers were interviewed to give their opinion of South Africans. Almost two thirds of the 1500 interviewees felt that South Africans did not like foreigners – e.g. they used terms like makwerekwere or were openly hostile. On the question of how they think foreigners perceive them, they reported perceptions that they are here to steal wives and jobs. These illustrate the negative perceptions, which exist whether they are true or not. They occur at the level of both society and government.

Ms Belvedere said she welcomed the proactive steps being taken by the PPFA and the SAHRC. She commended government for the introduction of specific legislation to govern refugee affairs but felt that there seems to have been limited progress in its implementation. A number of initiatives have been undertaken to promote awareness about different types of foreigners and the contribution they make but government has been reluctant to embrace these issues. A multi-pronged approach is required in order to promote a meaningful change in South Africans’ attitudes towards foreigners.

CASE’s submission explored some practical long and short-term interventions that can begin to initiate this attitudinal change. It was emphasised that these recommendations require commitment from all sectors.

Ms Belvedere highlighted the recommendations contained in CASE’s submission:

Ms Belvedere concluded that the reason that this submission focused on government was that although a number of initiatives have been introduced by civil society organisations it is the government which has the ability to make a profound difference. They currently seem to lack a sense of ownership, commitment and involvement. Officials who are guilty of xenophobia need to be conscientised as they are largely responsible for the perpetuation of stereotypes. It is critical that all these are addressed proactively, rather than waiting until foreigners are being used for dog training.

Ma Gxoloa commented:

• In its research, has CASE explored why people are attracted to South Africa. Is it to take South African jobs and wives? The PPFA found that farmers bring in a significant number of foreigners as cheap labour.

Ms Belvedere responded:

• The lack of differentiation between different types of foreigners means that for South Africans it is irrelevant whether foreigners are here legally or illegally. South Africans have had a history of people having things taken away from them. They perceive that foreigners are a threat and they are holding on to what they now have.
• The lack of differentiation between different types of refugees also means that South Africans do not discern between political and economic refugees. Farmers are bringing in foreigners and exploiting them and then the foreigners are being blamed for something, which is beyond their control. There is a need to promote a more nuanced understanding in relation to the perception that every foreigner represents one less South African job. For instance, Cuban doctors are making a contribution to the country in the rural areas where South African doctors didn’t want to work.
• In order to reach the grassroots these issues need to be taken to the churches, which have the potential to initiate widespread attitudinal change and awareness raising. Most importantly, South Africans should start by addressing their own individual xenophobic attitudes.

Mr Seremane commented:

• Issues of ethnicity (or more crudely put ‘tribalism’) and human dignity need to be addressed to promote a meaningful mindset shift.

Ms Belvedere responded:

• There is certainly a need to facilitate such dialogue. Unfortunately conferences and meetings focusing on xenophobia seem to attract only foreigners. This suggests that the issues should be broadened so that they affect locals and foreigners, for instance, topics could address questions such as ‘how should we provide services?’

Mr Joubert commented:

• CASE’s submission referred to increased levels of xenophobia in South Africa. This seems counter-intuitive. What has caused xenophobia to increase?

Ms Belvedere responded:

• There are different theories. Some attribute xenophobia to the insularity of South Africa, others believe that it stems from the absence of a history of migration. Government has devised a set of priorities or expectations. Foreigners have been used as a scapegoat to explain why many of these expectations have not been met, such as the demise of the RDP. Furthermore, there is a tendency to see the ‘other’ as a threat. Many of these perceptions would be challenged if the skills of foreigners living in South Africa were harnessed constructively.

Ms Mpaka commented:

• What role does CASE envisage for the private sector? How has civil society contributed to combating xenophobia?

Ms Belvedere responded:

• The private sector can assist by providing refugees and asylum-seekers with banking facilities such as access to a bank account. They could also help facilitate access to documentation, employment and skills development for foreigners. A number of private sectors companies would be happy to provide resources as long as there is some sort of partnership with government or other stakeholders.

Mr Sithole commented:

• How the media has participated?
• How does xenophobia affect South Africa’s interventions in the continent?
• How does xenophobia relate to issues such as human trafficking as well as class issues?

Ms Belvedere responded:

• Through their coverage the media tend to reflect what is happening in society. South African media have covered and participated in a number of conferences and workshops around xenophobia.
• Interventions don’t benefit everyone. There are winners and losers. In its interventions South Africa acts in its own interests, like any country would.
• There are some linkages between xenophobia and issues such as human trafficking and class. For instance, white Africans do not experience the same levels of discrimination as black Africans. Black South Africans tend to have stronger negative perceptions but there are real reasons for this. This affirms the need for greater differentiation and awareness raising.

Mr Ramgobin commented:

• What role does CASE envisage for business, churches, the media, government and NGOS?
• Xenophobia should not be viewed as an African problem. CASE’s submission implies that the term makwerekwere applies only to black foreigners and not whites or Asians. The question of race should not be excluded. Xenophobia is not a typical African phenomenon.

Ms Belvedere responded:

• The media has the potential to lead and to mobilise. From time to time newspapers cover feature or human-interest stories that tackle the issue of xenophobia. They also have their own interventions, like workshops to conscientise journalists. But ultimately the media reflects what is happening in a society.
• It is in the nature of business to maximise profits and provide the least amount of benefits. If they are not taken to task they will continue to take advantage of situations. This is related more to capitalism than xenophobia.
• The role of churches in social justice could better be answered by a church organisation. CASE has not explored the role of the churches in the transition to democracy.
• CASE’s submission does not imply that xenophobia is an African problem. It is a particular problem in South Africa because of the country’s history of discrimination. Xenophobia is an international phenomenon but this doesn’t make it any less of a problem. Government needs to start operationalising the many visionary policies they have developed.
• A number of initiatives have been initiated by civil society organisations. Many of these have called for government participation. At different levels there have been different responses e.g. the Gauteng Department of Education (GDE), among others, has embraced the issue and partners with a number of NGOs in this regard. Further examples can be made available to government.

Mr Manthata commented:

• The critical issue of partnerships has already been raised. Crimes and disorderly behaviour - for instance, when furniture is thrown out of the windows of Hillbrow apartment blocks - is often associated with foreigners. It would be constructive to come together with foreigners and discuss how these and other issues can be addressed together. This would save lives and property.

Session Three

Chairperson: Mr DJ Sithole, Chairperson, PPFA

Mr Sithole introduced the afternoon programme, which would consist of two oral testimonies and two organisational submissions.

Livingstone Madala, South African Informal Trader, ACHIB

Mr Madala described xenophobia as a blanket hate for people from different countries. He stressed that South African hawkers do not hate foreigner traders and that the Council’s leadership is opposed to any form of xenophobia. He also acknowledged that there is a degree of friction between the two groups.

Prior to 1994 South Africa’s economy had been growing at the rate of 1% per annum. In the first ten years since 1994 growth has increased to 3%. This needs to be evaluated, however, in context of the high numbers of African foreigners entering the economy and whether it is growing fast enough to absorb the influx.

Mr Madala proposed that while South Africa’s economy could probably accommodate legal migrants it would not be able to absorb undocumented migrants.

He highlighted a number of issues:

Mr Ramgobin asked Mr Madala to elaborate on corruption and the impact of new trading regulations on foreign traders.

Mr Madala responded:

• The majority of traders whose goods are confiscated by Johannesburg City Council’s are South African. Yet traders without identification documents are not being harassed. This is because South Africans are not prepared to pay bribes because they feel that they are entitled to trade, while foreigners are prepared to pay bribes. Police and officials from the City Council close down locals and give their place to foreigners.
• Regulations have been drafted without the input of traders. The introduction of a database of all traders has been suggested. This would allow help to regulate the industry and raise awareness around the different types of migrants. It would allow traders to distinguish between documented migrants who are importing their products, creating jobs and generating income.
• Foreigners are buying South African identity documents.
• Johannesburg City Council has decided to grant 1000 licenses for informal traders. Yet there are currently between eight or nine thousand hawkers. Who should qualify? The authorities seem to be selecting foreigners.
• Government should rather introduce policies and regulations, which benefit both parties. At the moment South Africans feel like they are losing out.

Ms Mpaka commented:

Mr Madala responded:

• Public meetings have been attended and submissions have been lodged with the relevant authorities but these are largely ignored.
• South Africans are willing to pay tariffs for space if there is a perceived benefit e.g. Local traders are happy to pay Checkers and other companies for trading space on their premises.
• It has never been clarified why only 1000 licenses will be granted. Foreign hawkers have been in South Africa for a number of years. Before the authorities intervened there was no xenophobia. The authorities - through their regulations, bribery and corruption - have introduced xenophobia. For instance, traders at Park Station are required to have a residence permit and a work permit. Foreigners simply buy a South African identity document from the Department of Home Affairs.

Mr Madala concluded by saying that the African Council of Hawkers and Informal Business is ready to engage with government to develop solutions.

He appealed to government to assist by:

• Developing plans to provide informal traders with empowerment training,
• Compiling a database of hawkers with detailed information about documented migrants as well as numbers of refugees, asylum-seekers and undocumented migrants.

Mr Sithole commented:

• Have the police been notified about the fraudulent identity documents? All South Africans are responsible for reporting crimes like this. The lack of consultation between the Johannesburg Metro Council and hawkers is a legal issue, however the Council is compelled to consult with stakeholders at all times. Have police been notified about bribery? Again, South Africans are responsible for reporting acts of corruption which they witness.
• Mr Sithole concluded that he found it difficult to accept Mr Madala’s submission, saying that in his experience hawkers have been uncooperative.

Mr Madala responded:

• The African Council of Hawkers and Informal Businesses are cooperative but there are some who are uncooperative. Fraudulent identity documents have been submitted to the police who responded by saying that the hawkers are not their bosses. There are instances where individuals have been killed for blowing the whistle. The risks involved in reporting an incident seem to outweigh the benefits.

Mr Sithole found this difficult to accept but offered to take the issue of falsified identity documents up with the provincial commissioner of police if there was any evidence. Mr Madala agreed to bring nine falsified identity documents, which he had in his possession, to Mr Sithole the following day.

Mr Joubert commented:

• The submission states that the South African economy does not have the capacity to absorb undocumented migrants. Later it states that the exact number of undocumented migrants is unknown. These statements seem to contradict each other.

Presenter: Ms Joyce Dube, Southern African Women Institute for Migration Affairs, SAWIMA

Ms Dube told of how, as mothers of the nation, a group of women living in South Africa came together to promote ubuntu among immigrants. The Institute soon realised that a number of women had not obtained legal refugee or asylum seeker status and it made it difficult for them to engage in projects. Asylum-seekers start queuing in the Department of Home Affairs in Rosettenville from 16h00 for the following morning. Protection letters from human rights lawyers do not seem to make a difference, since asylum-seekers with protection letters are still not awarded status. Zimbabweans with protections letters are told that there is no war in Zimbabwe.

She added that there is widespread police harassment among Zimbabweans. People are treated as murderers, asylum papers are torn up and candidates are told to go back and talk to [President] Mugabe.

Ms Dube went on to talk about Lindela Deportation Centre, saying that women who have approached SAWIMA for assistance or support say that Lindela is dirty, detainees get sick and some die. Next of kin are not notified when a detainee dies.

She also cited examples of how some Zimbabweans have been ill treated in South Africa and demonstrated how they would avoid deportation at all costs:

Ms Dube said that SAWIMA has started workshops to educate immigrant women about their rights. These deal with topics such as HIV/Aids and with children’s rights in regard to healthcare and social assistance in South Africa.

She also told of how the poorest immigrants do not have any form of social or community life and they find their solace in over-drinking. She felt that employers employ immigrants because they can exploit them without the threat of legal action.

She concluded by appealing for opportunities for refugees and asylum-seekers to give something back to South Africa saying that they are talented and well educated; including manufacturers, scientists, pharmacists and artisans.

Presenter: Mr Ndessomiu Dosso, Ivory Coast Refugee, CBRC

Mr Dosso testified that he came to South Africa ten years ago from the Ivory Coast. He felt that in terms of xenophobia there has been a paradigm shift since 1994. In 1995 the media, academics and even politicians promoted xenophobic perceptions. Their aim was to rid South Africa of foreigners.

Mr Dosso remembered how, in 1995, a politician threatened: ‘We will chase all of them, we will make sure that we budget for them to go back.’

He also cited an example of a Soweto workshop he attended in 1996 where he was told by an official from the Department of Home Affairs to go home. When he met this same man in 2003 it was the reverse.

In his opinion, Mr Dosso said that the media, academics and politicians had misled the masses but now xenophobia occurs mainly at an institutional level. There has been a significant decreases in xenophobia since 1998.

Mr Dosso agreed with earlier sentiments that there is not an inherent dislike of foreigners among South Africans and it is the system that is promoting xenophobia.

He told of how he had recently been driving to work and accidentally crossed a yellow line. A policeman pulled him over, started swearing and demanded his license. Upon receipt of the license he said, ‘another foreigner - that is why the country is coming down every day.’

Mr Dosso went on to explain how - a year after coming to South Africa - he established a training centre conducting community work in 11 schools across Soweto, reaching 909 participants and raising funds to support the centre.

His testimony was in stark contrast to common misperceptions held by South Africans such as the policeman who pulled him over.

He emphasised that much is being done at a grassroots level in the inner city. The Johannesburg Stakeholders Forum meets together regularly to coordinate projects and share experiences. He suggested that Parliament and decision makers endorse this Forum as a best practice model around which they could find workable solutions and build constructive interactions. He concluded that the focus should be on strategies rather than on xenophobia that perpetuates itself.

Presenter: Richard Pillay, International Community Unifiers (ICU)

Mr Pillay expressed his appreciation to certain individuals within the South African Police Services (SAPS) and the Department of Home Affairs by listing their names. He also thanked various consulates for their assistance to non-South African nationals and reported that ICU is currently compiling a list of unhelpful officials.

Mr Pillay explained that his organisation, in order to be more inclusive, had changed its name from the International Organisation of Foreigners, to the International Community Unifiers. He stressed the importance of this name change.

Mr Pillay provided the following recommendations:

• Establishing a joint task team consisting of ICU; SAPS; various government departments including labour, defence, social welfare, home affairs, foreign affairs, education; Chapter 9 institutions and interested NGOs. The purpose of the task team would be to raise awareness around the concept that immigrants are not a burden on the country but rather positive contributors.
• Introducing an amnesty period to allow undocumented migrants from Africa and Asia, who have been in the country for more than seven years, to apply for documentation.
• Putting pressure on banks to treat African immigrants with greater respect and consideration. Mr Pillay related an experience where a black Kenyan refugee and a white Kenyan refugee, with identical documentation, both applied for a bank account. The black refugee was declined.
• Increasing collaboration between government departments and ICU as an essential resource, given its historical significance.
• Increasing the staff capacity at the Department of Home Affairs so that applications can be investigated more thoroughly.
• Lobbying countries that sell arms and ammunition to African countries to provide material aid to South Africa and other countries affected by migration.
• Challenging big business in South Africa who continues to perpetuate racism, xenophobia and inequality. Their attitudes have not changed in the post-1994 period but are just cloaked in different ways.
• Introducing a system, which provides people with access to detainees at Lindela to help with their difficulties.

This submission focuses on African and Asian immigrants. ICU research suggests that white immigrants do not face the same pressures as blacks and Asians.

Noting that:

• South Africa is seen as a world leader with one of the best Constitutions
• The rest of Africa also looks to South Africa and the country is seen as an African leader

Mr Pillay recommended:

• Supporting initiatives such as NEPAD, the Pan-African Parliament (PAP) and the African Union (AU) and other programmes, which promote unity.
• Recognising that xenophobia and racism are closely linked. The apartheid government used xenophobia cloaked differently and it is not a new phenomenon as some critics imply.

He believed that a historical context would emerge from the hearings, which would analyse the role of the past, e.g. the role of the church.

He concluded by saying that unless stakeholders are honest in their deliberations a resolution will not emerge. He acknowledged that any resolutions are likely to have budgetary implications and suggested that mechanisms be introduced to fund these efforts on an ongoing basis. For instance, when foreigners die in South Africa, he felt that there should be mechanisms to ensure that these people receive a dignified burial.

He recommended the introduction of an educational programme that would include the media and encouraged NGOs to create an enabling environment. He felt that if ICU facilitated this process more NGOs would become involved. In particular he emphasised developing a partnership between ICU and the SAHRC, other NGOs, PPFA and the Home Affairs Portfolio Committee so that future attempt to engage will be carried out in the spirit of collaboration, cooperation and unity.

Mr Seremane commented:

Ms Dube is to be commended for being a mother and for taking the initiative to make a different as an individual. Mr Dosso is also commended for the way he tackled his problem.

Mr Ramgobin thanked Mr Dosso and Ms Dube, saying that their testimonies were an inspiration. He also thanked ICU and noted that the recommendations would be taken seriously. He expressed the opinion that Mr Pillay and the ICU should act as a joint custodian of the process. He added that it is time that countries that sell arms assumed responsibility for this.

Mr Joubert concluded by highlighting a golden rule, which he felt would be beneficial in the context of xenophobia: ‘Do unto others as you would have them do unto you.’

Mr Sithole commented:

Ms Majodina thanked participants for their time and their contributions. The meeting was closed at 16h50.

Session One

Chairperson: Ms NB Gxoloa, MP, PPFA

Ms Gxoloa opened the second day of the hearings by welcoming participants and introducing the first submission.

Presenter: Ms B Donkoh, UNHCR

Ms Donkoh extended her appreciation to the SAHRC and the PPFA for the public hearings and to participants for their interest in the process. She stated that UNHCR’s submission focused on the impact of xenophobia on refugees in South Africa.

She commented that the timing of this intervention is fitting because it coincides with South Africa’s celebration of their first ten years as a democracy. She cautioned that although UNHCR’s submission may omit some views, partners such as LHR and others had presented these.

Ms Donkoh provided a background to the UNHCR’s submission:

• The United Nations (UN) has a global mandate to provide protection to refugees and seek durable solutions to the problems they face. The term ‘refugees’ refers to persons forced to flee for protections and seek safety in other countries. They are entitled to international protection and should not be forced back to their dangerous countries. They should be able to enjoy fundamental human rights in their host country.
• The forced displacement of people is one of the most urgent challenges facing the world. Since World War II the number of refugees across the world has rocketed. The UN takes responsibility for 17 million refugees worldwide. Within Africa there are an estimated 4.2 million refugees and asylum-seekers. There are also several million other persons displaced from their homes but within the borders of own countries.
• In 1996 South Africa bound itself to respect the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa and the 1951 UN Convention Relating to the Status of Refugees. Article 35 requires UNHCR to discharge supervisory responsibilities regarding how rights are given effect by contracting states. UNHCR participated in the process that led to the Refugees Act, No. 130 of 1998. This defines how South Africa will recognise an individual as a refugee.
• The Minister of Home Affair is charged with administration of the Refugees Act including the responsibility of granting asylum. Section 27 guarantees forms of protection of human rights including socio-economic rights. These include the written recognition of refugee status, a right to education, health care, work and so on. International standards relating to the treatment of refugees are fully reflected in the Refugees Act and the Bill of Rights. Refugees are accorded full legal protection. Everyone in South African territory has certain rights and this includes refugees and asylum-seekers.
• In 1992 there were 26 900 refugees in South Africa and 90 000 asylum-seekers, the majority of those granted refugee status came from other African countries, including DRC, Rwanda, the Republic of Congo, Angola, Sudan etc. The majority of refugees and asylum-seekers are single and male and they tend to settle in urban commercial centres.

Ms Donkoh went on to explain that refugees and asylum-seekers are confronted with a number of obstacles in their attempts to attain dignity and normality in their new surroundings. These include lengthy bureaucratic delays in obtaining documentation, the inability to access government social assistance and a lack of access to educational and employment opportunities. Many refugees and asylum-seekers have few options but to engage in hawking. Most refugees are willing to persevere in order to integrate into their communities.

The prevalence of xenophobia makes them susceptible to street crime, wrongful arrest and detention. These create a climate where refugees feel unsafe and unable to exercise their human rights. Ms Donkoh outlined a number of examples recorded since 1994 where refugees and asylum-seekers have been targeted, attacked, maimed or even killed.

She proposed that xenophobic sentiment is getting more sinister in South Africa with public servants victimising refugees and asylum-seekers. Example of this form of xenophobia include instances where:

• officials have deliberately torn up documentation recognising the status of a refugee and then declared them illegal,
• documented refugee children have been turned away from schools, and
• documented refugees and asylum-seekers are denied access to hospital care.

In 1998 against the backdrop of xenophobia the UNHRC, SAHRC and NCRA launched the Roll Back Xenophobia Campaign. The Campaign coordinates public awareness and educational activities throughout the country. The Campaign was also run on radio and television and it profiled former refugees currently in leadership positions in South Africa, who spoke publicly about their stories. There were some interventions where provincial and national government also became involved.

Xenophobia is not limited to South Africa. It flourished initially in the northern hemisphere when poor immigrants from the southern hemisphere were invading these wealthier countries. This demonstrates how xenophobia is linked to insecurity and fears about the distribution of resources and competition. Economic migrants and refugees who flee dangerous war situations are perceived differently. But each category of people on the move has its own needs and requires to be treated with dignity and humanity. Refugees need international protection and economic migrants need their labour and fundamental human rights to be respected.

Ms Donkoh appealed to South Africans to show ubuntu and human solidarity towards those who are forced to flee violence and persecution, rather than confronting them with harassment and xenophobia.

UNHCR’s submission made the following recommendations:

• Promoting a change of attitude towards refugees and migrants.
• Obtaining commitment from government and other leaders to visibly and unequivocally denounce xenophobia. President Mbeki did this at WCAR but few other politicians have come out in support of these sentiments.
• Educating MPs about their obligations with regard to refugees. For instance, at a recent workshop it emerged that MPs serving on the Portfolio Committee on home affairs do not seem be aware of their obligations.
• Putting pressure on political and business leaders to take a visible public stand against xenophobia. This would encourage people to rethink their attitudes.
• The Department of Home Affairs should be resourced adequately and their capacity built to enable them to deal appropriately with refuges. The Immigration Act allocates the responsibility of guarding against xenophobia to the Department of Home Affairs. UNHCR is currently drafting a plan of action exploring ways in which it can assist and support the Department of Home Affairs.
• Ensuring that other government departments assist Home Affairs to fulfil their responsibility.
• Ensuring that the SAHRC are adequately resourced to allow them to play their mandatory role in the monitoring of how rights are being enforced locally, provincially and nationally.
• Resourcing the SAHRC would also enable it to raise its visibility in the struggle against xenophobia.
• Encouraging the SAHRC to raise its visibility to combat xenophobia. Reviving the partnerships formed at the outset of the Roll Back Xenophobia Campaign – SAHRC withdrew its commitment at the end of 2002. This brought the campaign the necessary ‘authority’ and the SAHRC was asked to rethink its position.
• Helping the Department of Home Affairs to introduce a structure to deal with xenophobia, and mechanisms to educate public servants about xenophobia, through their induction and refreshment training. UNHCR has offered to liase with public servants and train them.
• Encouraging human rights organisations and NGOs to maintain their role of advocating for the rights of refugees and their welfare. Refugees should be enlisted in this role. They are their own best advocates. Many want to settle in this community. They struggle to retain human dignity and want a chance to demonstrate their gratitude for South African hospitality.
• Finding creative ways to get the media to portray a positive fresh angle, which promotes the positive contributions of foreigners. Coverage should also challenge negative stereotypes - about crime, drugs, and the exploitation of South Africans through competition for jobs and women. UNHCR is willing to partner with the media in that role.
• Making ‘human rights’ a compulsory subject in the South African curriculum at all levels. Curricula should also highlight common values with other countries in Africa and African institutions such as NEPAD and the African Union. Learners should be educated that regional integration is the way of the future. SA learners need to learn more about the root causes of forced migration in Africa rather than focusing on other continents so much. There should also be mandatory teaching around the concept of ubuntu.
• Assisting the Department of Home Affairs to implement strategic reforms promptly. This should include establishing a special initiative to deal with backlogs in applications for legal status and managing the ongoing process of applications. These mechanisms would eliminate the potential for abuse of the asylum-seeker system by economic migrants and criminal syndicates and change perception of who refugees really are to one where South Africans realise that refugees are entitled to receive the much-welcome refuge and protection of their rights.

Mr Seremane commented:

• What is UN’s experience in other regions of the continent? One understands the plight of people coming into the region. But are there programmes to induct people in the area to which they have come? Are they taught about the culture of South African communities? This would help them to adopt a less aggressive and antagonist approach because they would be aware of acceptable behaviour and promote more positive perceptions. They should also take positive steps to combat the negative stereotypes.

Mr Joubert commented:

• Is there more or less xenophobia in homogenous countries such as Norway, Sweden and Denmark when compared to heterogeneous countries such as South Africa? How does South Africa rate on a world scale? If 100 000 out of total of 4.2 million African refugees are living in South Africa and there are 17 million refugees worldwide, it would seem that the number of refugees in Africa is disproportionately high and the number of refugees living in South Africa is disproportionately low.

Ms Donkoh responded:

• The UN’s experience of what is happening in other parts of Africa is linked to the distribution of refugees worldwide.
• In Guinea at the height of the Liberian conflict, Guinea hosted 200 000 – 300 000 refugees. They arrived en masse in a very short space of time and stayed in Guinea for a substantial period of time.
• Zambia hosted 400 000 refugees from different neighbouring countries, and still has 200 000 refugees who are still being repatriated. Internal conflicts throughout Africa haven’t given countries a break since their independence.
• The majority of countries are hospitable but in times of economic hardship there tends to be a stiffening of attitudes towards refugees. Many local villages set up their own refugee reception centres, even before the UN comes in with government to improve the structures.
• In Tanzania refugees may pose a security threats and there is a risk of incursion. This naturally makes attitudes a bit stiffer yet Tanzanians remain surprisingly hospitable.
• At heart most countries respect the 1969 OAU provisions and although economic hardship may affect the reception that refugees get, the principle that they deserve to be given sanctuary is never questioned.

Mr Ramgobin commented:

• The 1988 Refugees Act, the 1969 OAU Declaration and other international conventions have all informed South Africa’s Constitution. South Africa does not condone misconduct against refugees.
• Consider the suggestion that all refugees and asylum seekers are not God’s chosen people.
• How would an orientation programme for new arrivals work?
• In determining South Africa’s foreign policy Parliament does not discount South Africa’s local policy.
• When analysing conflict across Africa the question that emerges is whose wars these are, since African countries don’t have the ability to manufacture weapons.
• UNHCR’s submission does not distinguish between illegal and legal immigrants – bona fide refugees and bona fide asylum seekers. How does the UNHCR relate to the illegal entry of refugees and asylum-seekers?
• The behaviour of some police is repulsive, but so too is the behaviour of some refugees.
• In terms of the Roll Back Xenophobia Campaign stakeholders need to be as creative and supportive of each other as possible, rather than remaining on the sideline as professional critics.

The chairperson reminded panellists to keep their inputs brief, confining them to questions rather than statements.

Ms Majodina defended the SAHRC’s alleged withdrawal from the Roll Back Xenophobia Campaign explaining that in 2002 the co-ordinator of the Campaign, who was housed at SAHRC, relocated to NCRA in Pretoria. This distance meant that the SAHRC lost their link to a close working relationship with the other partners in the Campaign. The Campaign still continues as a partnership between NCRA, UNHCR and SAHRC. SAHRC still conducts training for the Campaign, although activities are not planned together as closely as they were in the past.

Ms Majodina responded to the submission’s recommendation on the SAHRC’s mandate to monitor the socio-economic rights of refugees. She said that the Commission continues to circulate protocols in government departments outlining what services are being provided for refugees and asylum-seekers. The Commission also continues to monitor government’s progress around the implementation of the Refugees Act and the protection of the socio-economic rights of refugees and asylum-seekers. The Commission’s latest monitoring report maintains that little progress has been made over the past twelve months.

Ms Majodina acknowledged that the SAHRC is under-resourced and increased fund would enable the Commission to increase the quality and number of its interventions.

Ms Majodina noted that the protection of the socio-economic rights of refugees and asylum-seekers – particularly in areas like healthcare and education - is the greatest problem. She appealed to the UNHCR to develop a document of international best practice models and key guidelines to enable the SAHRC to really advocate for the protection of these rights.

Ms Donkoh responded:

• The PPFA has been invited the UNHCR offices and this offers still applies. Due to time constraints many of Mr Ramgobin’s questions will have to be addressed outside of these hearings.
• Refugees are not angels. They represent all the virtues and ills of society. They are obliged to respect laws of South Africa. This is contained in all the refugee conventions. If refugees and asylum-seekers violate the law they should be punished accordingly - The only criterion is that they are treated no differently from South Africans.
• A number of NGO partners provide social assistance for new arrivals. LHR also offers various forms of assistance and there are educational programmes for new arrivals. The provision of free English lessons is one example. Orientation programmes are not sufficient and there must be more creative ways to engage with the refugee community but some new arrivals never come to the UNHCR and the Commission is unable to ever reach those people. It would be highly beneficial if it were possible to educate refugees and asylum-seekers about the South African culture and way of life and encourage them to learn local languages.

The chairperson revealed that a number of the submission’s recommendations for the Department of Home Affairs are already in the pipeline. She added that the Department was one of the most dubious during apartheid and activities are well underway towards its restructuring. She thanked panellists for their questions.

Presenter: Loren Landau, WITS Forced Migration Project

Mr Landau applauded the xenophobia hearings and explained that the fear of academics is that their work will only ever be distributed in academic circles. He hoped that his testimony would reach beyond academia.

The Project’s submission challenged five unfounded myths that inform public attitudes to non-citizens (including economic migrants):

South Africa is being overrun with foreigners. Foreigners represent a tiny proportion of South Africa’s population. It is estimated that there are less than 150 000 foreigners among a population of 40 million South Africans. Even conservative estimates only put this figure at 850 000 which represents less than 2% of South Africa’s total population. In countries like Toronto and Tanzania around 40% of the population are foreign born. The number of Zimbabweans has grown in the last ten years but rumours that there are 2 – 3 million Zimbabwean living in South Africa are implausible. These numbers must therefore be kept in perspective.

Foreigners are needy public burden on social services. The former Minister of Home Affairs and the Mayor of Johannesburg have made statements to this effect. Since non-nationals represent such a tiny percentage of residents they are unlikely to cost a lot in social services. Services are overburdened but this is a result of the widespread urbanisation of South Africans from rural areas moving to the cities in search of employment. Many foreigners are denied services and this further limits their impact.

Foreigners are an economic threat to South Africa. There is a widespread assumption that non-nationals are stealing jobs from South Africans. While many foreigners are better educated they should not be characterised as a threat. On the contrary, statistics show that they increase jobs; are more likely to employ staff; and tend to mainly employ South Africans. Internationally there is evidence to suggest that immigration provides a net benefit to countries. Their work ethic is also superhuman.

Immigration can be stopped. South Africa lacks the capacity to prevent people from crossing into South Africa. Even the US with all their measures and capacity are unable to prevent people from crossing into the US at the Mexico border. Their measures do, however, increase the death rate of people who try. South Africa is even less likely to succeed. Furthermore, this ethos of control has negative consequences.

There is a gaping skills gap in the South Africa labour market and recognition of the need to import skilled labour but skilled non-nationals who already in South Africa are excluded. Government policies should certainly protect the rights of citizens, but South African policy has made it illegal to hire non-nationals. Government has deprived itself from an important source of revenue.

The criminalisation of non-nationals has opened opportunities for police corruption and illegality. Because foreigners are denied access to banking services many are forced to carry large amounts of cash and some police see them as mobile ATMs. Those arrested for immigration offences are subject to a privatised realm of law enforcement, existing largely outside of government regulation and public observation. The quest for control has given rise to policing strategies, which although targeting non-nationals threaten the security and rights of South Africans. The corruption surrounding Lindela leads to rights abuses rather than protecting the country from those who wish to commit criminal acts. Once established, those benefiting from corruption will resist reform and may spread their influence in yet unaffected government institutions. The recent scandal around the non-national illegal marriages to South Africans is illustrative of this.

Migration policy is only a concern of national government. Because immigration affects two or more sovereign states migration is not only a concern of national government, there is a need for it to be addressed through regional migration instruments. As political decentralisation and devolution continues, migration management will in effect be transferred to local governments who are already charged with overseeing and spearheading the development of their communities. Effective immigration and asylum policy must therefore be developed together with local authorities in line with local priorities. The WITS Project has copies of a recent publication that outlines ways in which this could be done.

Mr Landau concluded by listing a number of issues that should inform any consideration of a migrant policy

Learn from other regions. Don’t borrow laws or seek to legitimise repressive policies simply because they have been enacted elsewhere. Recognise the specific context and legislate accordingly.

Develop mechanisms to track migration trends. Accept that migration and immigration will continue and that non-citizens have the potential to make important contributions to the regional economy. The shift from a control ethos to one that focuses on managing. Starting by understanding migration flows and their social, economic and political effects.

Incorporate local government into migrant management. Turn migration into a developmental rather than policing issue by expanding responsibility beyond national government agencies and department.

Reconsider citizenship and residency laws. There is little support for European-style regional citizenship and unrestricted movements. There is, however, the need to recognise that movements do take place and many people spend the majority of their lives working in a country where they don’t have citizenship. This suggests the need to rethink the terms under which people access social services, participate in decision making and protect their rights.

While the South African Government, SADC and NEPAD aim to halt globalisation and enhance the regional integration into the global economy these are not supported by the legal mechanisms needed to manage migration.

Mr Ramgobin commented:

• Regarding the statement that migration should be treated as a developmental rather than a policing issue, how does the developmental stage arrive before the legal stage?
• Do you have any examples of regional bodies borrowing rules and regulations in toto?

Mr Seremane commented:

• The presenter is commended for this accessible submission, which addresses prevalent myths. Stereotypes always tend to spread faster than the truth. There is a need to deal with these myths and the recommendations will be useful. There is a tendency to avoid challenges at times, so thank you for raising these challenges!

Ms Majodina commented:

• The submission’s analysis of myths rang true. For instance the deportation system cannot prevent immigration - Has there been any research into the actual cost that the nation incurs when sending people back to their country of origin? Some years ago it cost an estimated R800 million per year. Shifting from an ethos of control to one of which rather manages and facilitates is crucial. There is a need for research, which proposes realistic steps for managing the migration process and policies need to be harmonised at a SADC level.

Mr Landau responded:

• With regard to the importation of a migration policy and attempts to legitimise existing policies: Over the past two days there have been efforts to shift blame away from South Africa because xenophobia exists throughout the world. But, South Africa has set higher standards for itself. Examples of policies that have been imported but don’t necessarily translate to a South African context include the establishment of refugee reception offices. This is a European model, which assumes resources and capacity. Instead it has resulted in delays, which create opportunities for corruption and harassment.
• With regard to Mr Ramgobin’s question about how to arrive at the developmental stage before the legal stage: The point is about developing regional and inter-governmental partnerships. In effect local government is already starting to recognise that immigration affects spending priorities. This points to the need for migration or immigration to become an issue that is tackled across departments. For instance, Statistics South Africa is already making attempts to track immigration.

Mr Ramgobin commented:

• If there are 75 refugees coming in at four different points of entry on four different days each week, how do we integrate them developmentally? Should management not come first? Within a developmental framework who should manage them? Inter-departmental police?

Mr Landau responded:

• The government must consider who is responsible. There are implications at all levels of government – health, education, border officials, police, home affairs etc.

Mr Manthata commented:

• Mr Landau refers to attempt to shift the blame away from South Africa because xenophobia exists throughout the world. In this global village a country such as South Africa needs to be guided by trends elsewhere.

Mr Landau responded:

• South Africa should be guided by international experiences but most importantly policies need to be informed by the local context and cannot simply be imported.

Ms Majodina clarified:

• The shift is a positive move away from a control mentality towards a more integrated strategy. An approach, which lays all responsibility with the Department of Home Affairs, won’t work - an interdepartmental approach is needed and this does not exclude international best practice.

Ms Gxoloa suggested conducting further research into non-national illegal marriages.

Session Two

Chairperson: Ms Gxoloa, MP, PPFA

Presenter: Emmanuel Ngwezi, The Refugee Centre

Mr Ngwezi’s submission focused on the practical side of the experience of the church.

He provided a background to church initiatives in the Johannesburg inner city:

During the past the church stood by the oppressed and marginalized but over time, this situation changed. A new challenge facing the church is the influx of foreigners, specifically refugees and asylum seekers. The Johannesburg inner city is home to a number of non-nationals who are unemployed, homeless and want to legalise their status in South Africa. This presents the church with a difficult challenge. Furthermore, within the church there are also xenophobic tendencies but there is also the belief that all belong to the body of Christ. If one part suffers the whole part suffers.

From this thinking emerged the idea of establishing the Refugee Centre, a joint inter-denominational initiative between the Anglican, Methodist and Catholic Churches in Johannesburg. The Centre opened office this year. Its focus was to sensitise society to xenophobia, starting with the congregations. The church has the potential to reach large numbers of individuals and impact on their perceptions and attitudes.

The Centre also focuses on a number of specific areas including access to Departments of Home Affairs, healthcare, housing or shelter. In both the UN and OAU convention guidelines it is clear that asylum-seekers have the right to a dignified asylum process.

The asylum process at Rosettenville has been commercialised. Asylum-seekers have to pay for services. The meaning of being a humanitarian process has been flouted. The backlog will never disappear because bribery is involved. Asylum-seekers pay from R500 to R1500 for their applications. Queues last for weeks and many give up. It makes no difference to raise these issues with the Department of Home Affairs.

Mr Ngwezi highlighted three priority areas for action:

• Establishing of a refugee office to provide interpretation services for refugees and asylum-seekers.
• Publicising the rights of refugees to health care. Health care workers are not aware of refugee rights and all foreigners are regarded as illegal immigrants. It is almost impossible for an asylum-seeker to get through the screening process at the Johannesburg Hospital.
• Increasing access to shelter and housing. Shelters are warned by authorities not to accept foreigners. They are charged three times the going rate for accommodation in rentals. This exploitation makes accommodation unaffordable and introduces problems such as overcrowding.

He concluded by saying that these are some of the difficulties faced by refugees and asylum-seekers in South Africa. While they are not necessarily unique to South Africa they do reflect a country’s beliefs with regard to the outside world.

Rev. Douglas Torr, St Mary’s Cathedral

Rev. Torr, one of the founder members of the Refugee Centre, also testified how the church works with refugees and asylum-seekers in Johannesburg:

• The South African Council of Churches (SACC) agreed that the church has a duty to foreigners but acting to ensure their rights are respected is quite another matter.
• St Mary’s congregation is predominantly black South African with a ‘smattering’ of whites. When the Refugee Centre was launched 30% of the congregation at St Mary’s Cathedral were from other parts of Africa.
• The establishment of an office for the Centre was fraught with difficulties and authorities treated Mr Ngwezi as if he were a drug lord. This underscores his point that it is extremely difficult for refugees and asylum-seekers to access work, accommodation or shelter and foreigners often find themselves on the streets. Exorbitant rates are charged as rentals, even for outside balconies.
• South Africa’s Constitution recognises the rights of women. A number of women from outside South Africa report that they have been raped when they arrive at the Centre. Children are refused access to education. Healthcare and employment are also inaccessible.
• The situation at the Rosettenville Department of Home Affairs is so corrupt and inefficient that people travel to Durban or Cape Town to lodge their applications.
• St Mary’s has introduced a small ecumenical ministry to ensure that the voices of refugees and asylum-seekers are heard.

Rev. Torr presented some recommendations aimed at church leaders:

• Ensuring that these voices of refugees and asylum-seekers are communicated to our congregations.
• Briefing rabbis, imams and clergy how they can help to deal with the rights of refugees and asylum-seekers during their training.
• Exposing people to different cultural nuances. The language barrier can make this difficult.

Bishop Paul Verryn, Central Methodist Church

Bishop Verryn opened by relating a moving story that had taken place that morning. He received an early telephone call informing him that a young refugee member of his congregation had attempted to commit suicide by throwing himself through a window in the church sanctuary.

He went on to describe the desperation that drives many refugees to insanity:

• Many refugees who come here fleeing violence and persecution are already psychologically estranged. The journey to South African from a conflict country is in itself traumatic and the desperation that awaits them could drive them to severe levels of insanity.
• Refugees have minimal rights – no right to education; no right to employment. The very legal document, which they receive, is xenophobic - It gives them one option for survival: beg or steal. Whether this is called xenophobia or whether it reflects people’s understanding of humanity, it is a shame.

Bishop Verryn’s testimony addressed three main areas:

• The bureaucracy who surrounds refugees and asylum-seekers is problematic. The Central Methodist Church decided that it would, at a basic stipend, engage the services of two people to educate refugees and asylum-seekers on their rights in South Africa as well as provide practical information around dealing with the bureaucracy in South Africa in order to obtain refugee status and so on. There are departments of state that are spectacular where people are served within an hour on complicated issues. This shows that the potential for efficiency exists and if South Africa opens its doors to refugees it must deal with them efficiently otherwise it would look as though South Africa is xenophobic.
• Johannesburg is extremely violent. There are nests of violence that are impenetrable. The police services need to be addressed on this issue. Vigilance can be put in place to stop this. As long as this persists South Africans are being deprived of their human right to safety. And refuges are even more vulnerable than South Africans.
• Xenophobia in the church: One of the places that sustain racism quite successfully is the church. And one of the difficulties is that blacks and whites don’t know that they both workshop in a different way. The Methodist Church is substantially divided. Whites become irritated if they have to spend two hours in church on Sunday. We need to understand one another culturally. It is the miracle of our diversity in South Africa. There are up to 3 million Zimbabweans in South Africa. They have their own culture and therein lies a journey. If a South African does not understand a foreigner it means that South African is alienating who the foreigner is. The very people that are being alienated in this country are those that served this nation during apartheid. Thus the whole question of who Africa is needs to be put squarely in the school curriculum. Apartheid helped South Africans to think that they were not part of Africa – they are. The church needs to be addressed with compassion and an independent person appointed to identify what can be done about xenophobia in the church.

Bishop Verryn concluded by calling for a year full of campaigning to start to conscientise a nation about those that suffer. "Help us to serve the South African community," he ended.

Mr Ramgobin commented:

• The concept of ubuntu has been included in the dialogue of the church. It is inspiring to know that it is in the religious idiom.
• How is the church taking a stand against xenophobia?
• Is it not possible for the church, in conjunction with some state departments, to assume some responsibility for providing access to Home Affairs, healthcare, etc To avoid commercialisation and corruption the church could ensure that there is access.
• A whole nation of people has lived as refugees in their own country for 50 years. The Bishop should be cautioned against being selective and passing judgement on a country that has only been democratic for ten years. This government has a foreign policy determined by human rights.
• The panel has heard testimony that letters of access cost between R500 and R1500 – If a person can afford these rates are they really a refugee. What is the reality on the ground? This seems to be problem of pragmatism versus realism. What is the church doing about this?
• The Bishop’s introduction was dramatic but he runs the risk of falling into the trap of making the exception the rule.
• Regarding the alienation of the very people that served this nation during apartheid: South Africa will not desert people.
• The Bishop mentioned that there are 3 million Zimbabweans in South Africa. During an earlier presentation the respondent maintained that the rumours of 3 million Zimbabweans in South Africa are implausible. Who is right? Do not place government in a difficult position by presenting it with different information. I am disturbed by the conflicting information.

Mr Seremane commented:

• The panel does not want to prosecute those who have made presentations but rather affirm the contributions that have been made. Diversity doesn’t always give you what you want. You get things from different angles – It is like touching an elephant. But people’s minds can help them manage their diversity and differences. For some God is first and everything else follows from that. The church still has a challenging role to play in society - It is also trying to be the conscience of the nation. The church is not bricks and mortar but rather the human beings that make up society. Bureaucrats, doctors, politicians, and so on, all go to church. Does the church have the ability to reach these people and correct their attitudes and perceptions?

Ms Phaka commented:

• How can churches go to local townships and communities to address xenophobia?
• How can refugee organisations go to hospitals to check whether there are any refugees? (e.g. There are some non-citizens in Ekhuruleni Hospital).
• Thank you to the Bishop for his idea about the one-year campaign. It would be great to hear more about how he would envisage such a campaign

Mr Manthata commented:

• Thank you to the Refugee Centre and the three partner churches for their efforts. The establishment of a formal relationship between the state and church to address these problems as soon as they emerge would be useful. In terms of legal versus undocumented migrants it would be useful to know what service can the church provide? South Africa is not acting in a blank scenario and wants to explore how regulations impact on the lives of refugees and asylum-seekers?

Ms Majodina commented:

• A formal relationship between the church and state sounds very positive.
• Those working in the field of refugees and asylum-seekers are deluded if they think that they will be able to come up with the number of undocumented migrants in South Africa. It is meaningless to say that it is necessary to obtain the exact numbers. The very nature of migration into South Africa makes it impossible to quantify the numbers of people. This is a major problem and South Africa has created this problem: Why is the number of Zimbabweans living in South Africa unknown? Because cross-border movements are undocumented. It is criminalized so perpetrators do not come forward.

Mr Ngwezi responded:

• In response to the difficulties experienced by refugees and asylum-seekers in the asylum process, the church has attempted to tackle the issue at a ministry level. Letters have been drafted and attempts are underway to set up a meeting with the Director General.
• On payments for applications: It is unlikely that an individual who is able to raise R500 is a genuine refugee. As mentioned earlier, dubious individuals have flouted the system.
• Regarding the screening of refugees and asylum-seekers: The Department of Home Affairs should be responsible for identifying the nationality of refugees and asylum-seekers. But, would they be able to verify whether someone is from the Ivory Coast and if so, would they know what is happening there? Would they know enough about the Ivory Coast to use this information for screening purposes? What would the criteria for screening be? Who would get screened out?
• On crosschecking whether refugees and asylum-seekers have access to hospitals outside Johannesburg: Access is likely to reduce to jurisdiction. Refugees and asylum-seekers with the wrong address will be turned away.
• Regarding the church’s position on legal versus illegal migrants: The Department of Home Affairs allows around 14 days for a new arrival to present themselves to an office and lodge their application. Often the sheer impossibility of actually doing this means that many asylum-seekers become illegal when their intention was to become legal.

Referring to an earlier incident where she had made a faux pas in the introductions of Mr Ngwezi and Rev. Torr, the chairperson, Ms Gxoloa, commented that there are times when individuals, through their own impatience with each other, are the cause of xenophobia. She appealed to participants to remain simple at these hearings, saying that each input will be analysed and participants must ensure that their inputs are constructive.

Responding to Ms Gxoloa, Rev. Torr explained that he had not intended to come across as impatient, he was simply clarifying that he is not from the SACC, which has its own desk and he may not speak on their behalf.

• Responding to the question about reaching congregants in the township: St Mary’s ministry is focused on a city congregation and it would not be possible to provide insight into reaching a township congregation. Yet St Mary’s is still aware of broader issues. There is concern and consciousness in the church in dealing issues such as the Arab-Israeli conflict or the conflict in Sudan. There is still xenophobia in St Mary’s as there would be in any congregation.
• The engagement between the church and government that has been discussed needs to start taking place. The church is conscious of difference between economic migrants and asylum-seekers. But how could it minister to them differently? Should it minister to one and not the other? It would be useful if the church were able to refer the different types of non-nationals to the correct channels by collaborating with government.

Bishop Verryn responded:

• Ms Majodina highlighted the difficulties in determining how many foreigners there are in South Africa – the figure of 3 million Zimbabweans in South Africa, referred to earlier, was an estimate that has been bandied about.
• The exception is not the rule, but - from the point of view of South African society and the acknowledgement of fundamental human rights – one suicide is just too many and represents the tough realities of the struggle of refugees.
• The proposal to formalise the relationship between church and government is extremely encouraging. The Central Methodist Church would put together a reliable workforce for this partnership to contribute to the development of a creative solution.
• He concluded that South Africa is nothing less than a miracle. After the trauma of racism it seems unlikely that South Africa would confront an issue like xenophobia head on. It is amazing that the country is prepared to look at its weaknesses: "I want to express my huge gratitude, as an ordinary South African, for the profound gift South Africa is becoming to the nations of the world, as a light on the mountain."

The chairperson concluded that, during the previous testimonies, she had been struck by the church’s untapped potential. The church has the extraordinary power to reach people, from all walks of life, and provide them with information – information about social grants, legislation, human rights and other issues. Racism started in church and xenophobia. At one point the Mothers Union in the African Methodist Church were looking into the idea of issuing birth certificates and administering social grants through the church.

Ms Gxoloa also reminded participants of where the Department of Home Affairs has come from, saying that during apartheid it was the most notorious department. It is also the most important department through which everyone passes, when they are born, when they marry and when they die. It must become strong and friendly. It is not just about getting an ID.

Presenter: Mr Tony Mokheseng, Johannesburg Justice and Peace

Mr Mokheseng said that his submission was simple and user-friendly written in township language. He explained that he works for the Catholic Bishop’s office in Johannesburg. He thanked the Commission and the PPFA for this opportunity and went on to highlight a few issues:

• The people who came to South Africa - from Malawi, Tanzania, Zimbabwe, and Zambia etc. - to build the economy of this country by working on the mines are now called makwerekwere. Most South Africans feel that they need to watch out for foreigners who have come to South Africa to take away jobs from South Africans; to engage in corruption; to engage in criminal acts; to work for less money; and to put a strain on the economy.
• Justice and Peace works closely with refugees and experiences similar problems to those raised by the previous three speakers. However, the migrants are predominantly French or Portuguese speaking. The first thing they do when they arrive in Johannesburg is look for a church. Home Affairs is still notoriously inefficient and corrupt. The mentality of self-enrichment is another challenge. Government employees realise that they can make some extra money by dishing out identity books.
• Police should go undergo refresher trainer where they are educated about human rights and the rights of foreigners in South Africa.
• Various govt departments should also undergo refresher training to learn development skills so that they have a love of people in their hearts.

Mr Mokheseng introduced Jack Kazani, a refugee from the Democratic Republic of Congo, (DRC).

Presenter: Mr Jack Kazari, St Francis

Mr Kazari highlighted some of the day-to-day problems of being a refugee:

The chairperson thanked Mr Kazari for his light and lively input. The meeting was adjourned for lunch.

Session Three

Presenter: Mario Damianos Gregoriou, South African Citizen

Mr Ramiro related how on three separate instances, he has experience acts of police harassment:

Presenter: Bridget Kassan, Faze 2, South African Anti-Discrimination Forum

Ms Kassan explained that the Faze 2 had been formed during WCAR’s NGO Forum.

She also introduced participants to a number of documents which were used in the compilation of Faze 2’s submission, including: The programme of action emerging from WCAR NGO Forum; SAHRC’s Millennium Statement; World Fit for Children, Faze Two concept document and the South African Constitution.

She highlighted the need to look at South Africa’s background of separate development, which fostered an environment of distrust. She added that most refugees aren’t accorded human rights. Racism is alive and there are not mechanisms to deal with it. Furthermore, there is still racism within government department and this is a breeding ground for xenophobia.

She outlined a number of different responsibilities for various stakeholders:

• Ensure that legislation that legislation that promotes the full and effective protection of the human rights of migrants is implemented
• Develop and implement policies and action plans, and reinforce and implement preventative measures, in order to foster greater harmony and between migrant and host societies
• Educate and train public authorities, in relevant levels, about the rights of immigrants and punish those who violet them
• Implement measures that ensure that migrants enjoys all the rights afforded to the country’s nationals
• Promote the recognition of professions, qualifications, titles and degrees of refugees, asylum seekers and migrant workers.

• Design and implement procedures that prohibit the abuse of migrants and promote their fair treatment as per requirements of the national legislation
• Invest resources in education and capacitating migrants so that they could easily adapt to the working environment
• Develop programs that seek to advance the knowledge and expertise of women so that they could be equitable remunerated
• Allocate resources for the training of public officials who deal directly with migrants.

• Assist migrants in the process of their integration to society and in accessing all the legally protected rights
• Educate and train migrants, refugees and asylum seekers about their rights
• Facilitate, together with existing networks, the process of their integration into communications
• Assist migrants into accessing the law hen their rights have been violated and when they are discriminated against on the basis of their status
• Design an information booklet focussing on the history and challenges facing the migrants and their immediate communities, so as to build understanding between the two.

• Monitor the treatment of migrants by law enforcement agents
• Monitor their integration to society and held to ease tension between the migrants and new found communities
• Ensure that the migrants receive fair and equal treatment before the law
• Supporting of civil society initiatives on keeping history alive, learning the lesson and in particular, education on basis of human rights, equality legislation and booklets on minority issues, ethnic cleansing and migration will lead to and create a better understanding and acceptance of all peoples nationally, regionally and internationally
• Other initiatives such as NEPAD, then the African Union and the Pan African Parliament has to be understood in an " African globalisation context" and assist in deconstructing our attitudes and perception about human beings beyond our borders. It can be enough that we build corridors and structure for trade and economic inert-dependence while ignoring the basic human rights of all nations.

The chairperson thanked her for her presentation.

Mr Ramgobin commented:

• Decisions and principles contained in documents such as the 1969 Convention and the decision emerging from WCAR have not been unpacked and made accessible to ordinary citizen. People need to be made aware of racism and xenophobia.
• A conference such as WCAR has never been held by any government in the world, it has only been convened by NGOs – the South African government did! What role did NGOs play - before, during and after WCAR?

Ms Kassan responded:

• Faze 2 emerged from the WCAR NGO Forum Secretariat. Prior to the conference NGOs were involved in drafting millennium statements and worked with SAHRC to mobilise NGOs to participate in WCAR. Post-WCAR it has been Faze 2’s responsibility to create a conducive environment and to take up the issues emerging at WCAR. To date civil society is on track with it plan of action. Working with the SAHRC and the church it has ensured that its document is publicised.

Ms Majodina asked about the role in the National Forum. What were the problems and what progress has been made?

Ms Kassan responded:

• The NGO Forum has been in consultation since August 2003. The bulk of its time is spent in meetings trying to gain support for key stakeholders. The NGO Forum received funding to facilitate the establishment of a Government Forum. Posts have been advertised. The Department of Justice is currently looking at CVs. It seems likely that the Government Forum will be in place shortly.

Mr Kassan raised a point of concern:

• The reason Faze 2 delivered a presentation was because this was an open hearing. Having to stand in front of the panel is intimidating. It is a concern that instead of being open, honest and fair, a lot of antagonism has been created. Over the past few days, the way respondents, presenting their sincere honest opinion, have been ridiculed has been a cause for great concern.

Mr Ramgobin said that it is a hearing and it is only fair that respondents are questioned. It is how hearings are done and shouldn’t be intimidating.

Mr Seremane acknowledged that it is a valid point that would be noted. He urged people to feel comfortable but agreed that it may be necessary to examine the structure and format of hearings like these.

The chairperson thanked Ms Kassan for her presentation and for reminding participants about the formative literature, which she had referred to at the beginning of her presentation.

Presenter: Jacques kamanga, CBRC

Mr Kamanga, a refugee from the DRC, thanked the organisers for allowing him to make a presentation highlighting the concerns from his constituency.

Mr Kamanga testified:

• When the government of South Africa accepted to host refugees it should also have accepted the related responsibilities. When asylum-seekers arrive in South Africa, they have nowhere to go. They have to work from the outset. They are so desperate that they are prepared to work for very low wages, just so they can put some food in their bodies. He emphasised that refugees and asylum-seekers do not want to dilute the struggle of South Africa workers by accepting low wages.
• Many new asylum-seekers spend their first five months in South Africa going back and forth to the Department of Home Affairs in an attempt to obtain legal status. By this time they are likely to have already fallen into the hands of security officials who will take them to Lindela for deportation.
• It takes up to five months to get the right documentation – this is not incompetence, it is discrimination.
• The permits providing alien status are A4 sheets of paper. Maroon identity documents are meaningless as people are only aware of the green identity document.

• In cases where authorities have seized merchandise of informal traders, CDRC has also encountered a number of instances where refugees or asylum-seekers pay the fine to get their goods back but the goods have ‘vanished’. Mr Kamanga appealed to panellists and participants at the hearings: "How would you like us to survive?"

• Local government in Johannesburg does not recognise refugees as part of the community. Provincial government is better and national government is good.

• It is a curse to be sick. It costs R1 800 – R120 000 to access care as a foreigner at Johannesburg Hospital. Foreign women are delivering their babies at the hospital gates. One woman paid a 50% deposit and was turned her away when her time came for delivery because she hadn’t paid the rest.

• Refugees and asylum-seekers receive support from a number of organisations. CBRC has encountered many instances where children without status are turned away from schools. On one such occasion the SAHRC pleaded for the child and Kadar Asmal sent a letter to CBRC saying that any child should have access to primary and secondary education. It is heartening to know that there are people who are willing to help and the journey across the desert has not been in vain. CBRC also believes that there should be a right to tertiary education.

• The security industry in South Africa is the greatest employer of refugees but they are now no longer accepting refugees. Again Mr Kamanga addressed participants: "How should we work, put food on the table, and be responsible?"

• Children born in South Africa are given and A4 page saying ‘alien’.

• Accommodation for non-citizens is characterised by over-crowding, over-charging and exploitation. The lack of documentation is the real problem.

• It is bitter to note that there is discrimination in academic records. A medical doctor from DRC is welcome, as is an engineer. But some other fields are under-graded.

Mr Kamanga introduced a colleague from DRC to give his testimony about the bureaucratic difficulties around obtaining refugee status.

Presenter: Augustine Babumba, CBRC

Mr Babumba acknowledged and expressed his appreciated for South Africa services such as education and the school governing body of Wordsworth High School who had granted his son exemption from school fees.

He went on to highlight a grievance:

Presenter: Francois van Graan, SAPS

Mr van Graan maintained that the SAPS couldn’t comment on the extent of xenophobia in South Africa, saying that the SAHRC need to establish this. But, he noted that xenophobia does exist and it does affect SAPS because SAPS is constitutionally bound to expose crime and some of these crimes will involve foreigners.

Mr van Graan highlighted some of the ways in which SAPS are attempting to combat xenophobia in the police service:

• SAPS is aware of it responsibility to uphold the human rights of each person in South Africa. Incidents of abuse are handled swiftly and decisively to stop halt misconduct immediately. SAPS has conducted diversity training for 25 000 of its staff. Immigration laws have been revised to ensure that immigration control is of the highest standard. Capacity building and transformation with the immigration authority is a future priority. Human rights are incorporated throughout operation training. SAPS are frequently asked to comment on the involvement of foreigners in crime. They decline to publicise information, which may perpetuate xenophobia.
• All officials require training around legislation. This training must be practical - for instance, what happens if someone abuses the process? Roles need to be clarified. Police also a need to realise that immigration control is not just a responsibility of the Department of Home Affairs.
• Corruption among officials is dealt with decisively. The Refugee Act of 2004 must be applied without exception and training around the Act must be initiated. Corruption needs to reported to the anti-corruption unit in the Department of Home Affairs under section 47 of the Immigration Act.
• The reasonable grounds test in section 41 of the immigration act stipulates that no personal may be detained on the basis of their physical appearance. SAPS has a staff desk on human rights training. Note that human traffickers are not regarded as a criminals..
• There is a duty in the police to prevent crime. If SAPS arrests people who was in Pretoria the whole day. During the raids on high crime areas people who have committed a crime are arrested. The police do not distinguish where criminals are from. We don’t distinguish where they are from. We also need laws. We are collaborating with ha around leg.

Presenter: Commissioner Reddy, SAPS, Johannesburg

Commissioner Reddy said that he had noted the concerns around corruption, torture and death in detention, which had emerged during the hearings, saying that these would be investigated. He expressed the hope that they were not merely rhetoric and appealed to the relevant individuals to take these issues up with him so that they can be investigated.

Commenting that Johannesburg is not a refugee camp, Commissioner Reddy expressed surprise at the large number of refugees and asylum-seekers that come to Johannesburg, which does not seem to have anything particularly special to offer them. He also said that he found it surprising that there were so many refugees and asylum-seekers from DRC who would have passed through many cities before arriving in Johannesburg. Why do individuals travel to Johannesburg?

Commissioner Reddy went on the look at a number of the challenges facing SAPS in Johannesburg:

SAPS does not promote xenophobia and it is dealt with seriously when it emerges. Major transformation has taken place within SAPS but there is acknowledgement that there are xenophobic elements within the police. The belief, however, that the police have a programme against illegal immigrants is a misconception.

• SAPS mandate is clear: Dealing with crime and criminality. The primary role of Department of Home Affairs relates to immigration, but certain sections in the Immigration Act empower the police to confront illegal immigrants. SAPS approach crime from a geographic and an organised crime perspective.
• 145 police stations have been identified as priority stations. Six of these are in Johannesburg and Hillbrow is no.1. It is tackled through a multi-disciplinary approach incorporating all the stakeholders such as the SANDF, SAPS, and the Department of Home Affairs.
• When SAPS enters hotspots they often encounter foreigners. They aren’t specifically targeted and SAPS recognises that there are different types of foreigners. The first two are unproblematic:
• Firstly, foreigners who are here legally with refugees status or a specific permit;
• Secondly, asylum-seekers who have certain rights and privileges – they need to be brought before the Department of Home Affairs so that they can be recorded on the system;
• Thirdly, the most problematic type of foreigner is the criminal. People do not recognise this and SAPS and even South Africa citizens are painted as the villains. These foreigners are not refugees – their purpose is to find ways of beating the system. By no means are all foreigners criminal, not even all those who are here illegally are criminal, just those involved in criminal activities.

• When SAPS enter an area to conduct a crime swoop they often encounter individuals who drop what they are carrying and run when they spot the police. The police are obliged to take them in. They defend themselves by saying that they don’t have their papers, which is why they fled. SAPS have to take them to Lindela and they get deported.
• SAPS do not condone the destruction of documents by police and it hasn’t been brought to the attention of the police. Individuals cannot claim that there is no recourse – of the 25 members of the police accused of corruption over the past year 18 have already been dismissed.
• There are many ‘Departments of Home Affairs’ scattered around selling tampered with or forged documents.
• Critics accuse SAPF of arbitrary harassment, ostensibly based on factors such as the darkness of a person’s skin. Such ‘harassment’ is often not arbitrary – Police are able to identify forged identity documents by looking at ID numbers. Checking the location of a person’s inoculation marks, or testing a person’s knowledge of local landmarks, towns and languages are some other ‘techniques’, which may raise suspicion.
• Report incidents of harassment to SAPS rather than running to the newspapers.
• The recent marriage scams are another example of crimes committed by organised criminals, not refugees or poor people.
• The Department of Home Affairs verifies an individual’s status. If there is a reasonable suspicion we individuals are sent to Lindela and Home Affairs conducts an investigation. The law allows people to be detained for 48 hours, within which time they must be deported if he/she is not a South African national.
• The problem is that people don’t come forward to report these incidents. Both parties benefit from corruption. And both are equally guilty. When it emerged that foreigners were bribing police, a policeman was arrested for taking these bribes. He was sent to prison for four years. However, a person is innocent until proven guilty and it takes time to get rid of corrupt elements in the organisation.
• 25 000 individuals have undergone training around human rights and policing.

Future priorities include:

• Strengthening the network with key stakeholders to promote discussion at a local level so that issues are tackled when they emerge.
• Interacting with the foreign community proactively e.g. SAPS engages with a committee of Zimbabweans in Johannesburg.
• Acknowledging that problems exist and jointly, they can be addressed. SAPS will not cover up corruption. It will get rid of corrupt element. The organisation has a dark past but it will not regress after so much transformation has taken place.
• SAPS are committed to improving.

Presenter: Provincial Commissioner Naidu, SAPS

Commissioner Naidu commented:

• The National Commissioner of Police is a champion of human rights with sympathy and empathy for foreign nationals.
• It is particularly difficult when foreigners come in and commit crimes, which have an impact at an international level. Cash in transit heists and drug smuggling are examples of this type of crime. SAPS are dealing with these quite effectively and the international community is satisfied with SAPS response.
• There have been testimonies at these hearings that some asylum-seekers will jump from a moving train to avoid going home. Efforts are made to sensitise police to these levels of desperation experienced by refugees and asylum-seekers.

Mr Joubert commented:

• Are laws, regulations and resources sufficient to police the problem? Would special courts to quickly determine a person’s status help? Do you need other forms of assistance, like new legislation?

Mr Ramgobin commented:

• What are the qualitative relationships with the community and the police? Does xenophobia come up? Do you have any protocol at point of entry?

Ms Majodina commented:

• It is unfortunate that there is not more time to dedicate to discussing these issues.
• It seems unfair to criminalize undocumented migrants and put them in the same category as unscrupulous foreigners. There have been submissions testifying that it takes many asylum-seekers over six months to gain access to the Department of Home Affairs to obtain that one paper that gives them right to be here. This lack of access contravenes South Africa’s international commitments. So to criminalize them and put them in the same category is unfair.
• The SAHRC has many problems with the ‘reasonable grounds’ test. This test isn’t infallible and is open to abuse. There is a need for stricter criteria and guidelines stipulating about how police should respond.
• The correct verification procedures are not followed at Lindela. The SAHRC has been reporting on this and drafting recommendations since 1999.
• The comparison of Johannesburg to a refugee camp is unreasonable. South Africa has committed itself to certain instruments, acts and conventions. The 1969 OAU Convention gives people the right to seek and enjoy asylum.

Ms Majodina asked permission of Ms Donkoh to comment on the ‘Principle of First Asylum’ given her experience working with the UNHCR.

Ms Donkoh commended Ms Majodina for her work in the field of human rights saying that she walks the talk. She went on to provide an overview of the ‘Principle of First Asylum’:

• In terms of the ‘Principle of First Asylum’ refugees and asylum-seekers should not be penalised for illegally entering a country. On arrival they should present themselves to the authorities as soon as possible and request asylum. There is some reasonableness in the opinion that refugees go to the closest or first country to request asylum. But it is also reasonable that they don’t stop here. For instance, during apartheid South African asylum-seekers in Tanzania could be asked why they are in Tanzania, rather than a country closer to South Africa. The Principle gives asylum-seekers an opportunity to provide an explanation why they did not stop in the first or closes country. For instance, for South African’s who sought asylum in Tanzania would still have been in danger in the first or closest countries. A person may be repatriated to the first or closest country if there are no compelling reasons.

Mr Seremane commented:

• What interaction is there between police, SAHRC and UNHCR? If there is no interaction then antagonism is bound to set in.
• Commissioner Reddy responded:
• Starting with the last point, he clarified that was not suggesting that foreigners from more distant African countries should not be allowed into South Africa as refugees. He was merely questioning why they were so eager to come to Johannesburg.
• On whether the laws are sufficient: Section 40 of the Immigration Amendment Act requires officials to verify information before making an arrest or detaining a suspect. This should cover a number of issues, which were highlighted above.
• When specific issues emerge around xenophobia there is engagement between the community and the police, however there is still a need to be more proactive. SAPS are eager to expand the Roll Back Campaign.
• In terms of a point of entry protocol: There are no specific protocols for notification. Wherever this person enters South Africa, it is important that they notify the authorities as soon as possible. The purpose for this is to get that person on record. Typically asylum-seekers would notify the Department of Home Affairs but the police can also be notified, although there have been no instances where police are approached by an asylum-seeker first e.g. at Johannesburg International Airport asylum-seekers do not approach officials and it only emerges when they are confronted.
• Ms Majodina commented that there have been instances where foreigners entering South Africa have reported to the police first to report that they are asylum-seekers. The police did not know how to respond. The foreigners were locked up for a few days and then released. This demonstrates the need for a protocol, which would keep authorities abreast of current developments.
• The chairperson stated that the SAPS had revealed a lot of interesting information and she would have liked more time to hear from them. She expressed the hope that this would be the first in a number of engagements between the police, the SAHRC and the NGOs.

Presenter: Brigadier Somdaka, SANDF

Brigadier Somdaka thanked the SAHRC and the PPFA for this opportunity but also expressed at the invitation. He said the invitation was puzzling and seemed to focus on the latest media scandals. He shared that this invitation sparked a discussion within the Defence Force around the causes of xenophobia. After discovering that xenophobia was an international phenomenon the question emerged: ‘why is South Africa being targeted?’

Brigadier Somdaka proceeded to read two newspaper clippings:

• The first was about Chinese triads targeting two top ANC politicians.
• The second reported that in line with the new Immigration Act, citizen border security is to be upgraded. This would be accompanied with the completing the phasing out of the army.

Brigadier Somdaka declared that he has never heard about such a phase out. He handed over to Lieutenant Colonel S.

Presenter: Lieutenant Colonel Cunter, SANDF

Lieutenant Colonel Cunter presented a PowerPoint presentation but, due to the sensitive nature of the material, he has requested that it be excluded from the report.

Mr Ramgobin commented:

• It is so important to get a balanced perspective – It is unfortunate that there were not more media and NGOs present to hear the SANDF’s testimony. They need to see the difficulties which government are presented with. A different perspective has emerged from the picture painted during the first day of the hearings. It would be of great value to conduct another in-depth process starting with the SAPS and SANDF.

He acknowledged that he was a bit shuffled by the two presentations in contrast to all the others.

The chairperson thanked SAPS and SANDF. She stated that their presentations had been thought provoking and said that the Portfolio Committees need to filter everything that emerged to Parliament. She recognised that there are many organisations involved and there is a sense that activities may be fragmented. As Brigadier Somdaka said, "It doesn’t happen overnight." There is a need to analyse where the problems emerge. Mr Joubert’s point about setting up special courts dedicated to determining a person’s status are the type of suggestion that is very useful.

The chairperson concluded day two by following up on Commissioner Reddy’s questions about why people come to Johannesburg, "Johannesburg is the city of gold – We all believe that the pastures are greener here." She thanked participants and closed the meeting.

Presenter: Ms Sally Peberdy, SAMP

Ms Peberdy explained that SAMP is a regional organisation, which works in eight countries in Southern Africa, tackling regional migration issues. Established in 1996. SAMP also provides training and public education. She thanked the SAHRC and PPFA. She added that SAMP partners with Idasa in South Africa and her testimony was a joint submission from SAMP and Idasa.

Saying that SAMP aimed to look at xenophobia from a different perspective, Ms Peberdy contextualised her submission:

• Data for the submission was drawn primarily from two SAMP reports, focusing on xenophobia in Southern Africa. Research for the first report was done in South African in 1999. The second report was based on research conducted in five Southern African countries in 2000/1. Both focused on the attitudes of citizens towards foreigners.
• The submission aim to address the issue of xenophobia by looking at it the perspective of regional integration. She said that the results show that South Africa is not alone, which doesn’t make is acceptable but it does suggest that xenophobia must be tackled at a regional level.

Ms Peberdy referred participants to a series of tables, which tabled the research findings in international attitudes towards migration.

Ms Peberdy outlined some of the key perspectives that emerged and attempted to analyse these:

• People fear foreigners most in South Africa, Namibia and Botswana. Zimbabwe, Mozambique and Swaziland exhibit lower levels of fear. Xenophobia undermines social cohesion internally and externally. These feeling of fear are underpinned by distorted ideas or ideas based on misconceptions. For instance, in South Africa, Botswana and Namibia people perceive a dramatic increase in the influx of foreigners. In reality this is not necessarily the case. 2001 Census Data 2001 reveals that only 5.3% of people living in Gauteng were not born in South Africa. This is only a small increase since 1996.
• People often see foreigners as a problem rather than positive contributors who bring opportunities for the creation of trade links, jobs and so on. This perspective is an important consideration that should inform discussion about developing the region. Although the research showed that people from South African, Botswana and Namibia held the strongest attitudes it does not mean that the entire population of these countries hold xenophobic attitudes. They cut across all sectors of society. There are no demographic markers. This makes it harder to combat because you cannot target a particular group of people. In Zimbabwe, Swaziland and others it seems to be poorer people who experience these attitudes. Challenging xenophobia is difficult because there are multiple problems and it is difficult to predict specific solutions with any degree of certainty.
• People who have a lot of contact with foreigners are the least likely to be xenophobic. It would seem that familiarity breeds acceptance. This finding is significant because it should inform thinking about how to challenge xenophobia.
• The media plays a significant role in providing people with information and shaping their attitudes. They need to challenge the manner in which they portray foreigners. A survey into the media conducted in South Africa in 2000 showed a consistently negative bias.
• Namibia, Botswana and South Africa lack a sense of regional identity, in contrast to Mozambique who exhibits a strong regional identity. This is possibly due to the civil war in that country which meant that many people had to spend time in the region.
• People in countries with a strong sense of nationalism and national identity tend to hold hostile attitudes to foreigners. It is important to have a national identity but xenophobic attitudes can be a side effect.
• Ms Peberdy recounted how she had come to South Africa with a black Kenyan colleague. The day-to-day hostility experienced by her black colleague eventually resulted in his return to Kenya. Ms Peberdy asked participants to imagine how a black Nigerian businessman would be treated in South Africa. South Africa is attracting skilled migrants from other African countries. These professionals do not experience hostility from their colleagues but the general negativity they face in day-to-day interactions becomes tiring. These attitudes will result in the loss of valuable contributions from skilled people from other African countries.

• Addressing the problem of misinformation – The media, NGOs, government and others need to be providing good quality information on which people can base their decisions and attitudes.
• Tackling xenophobia within the South African political context - South Africa has certain foreign policy objectives and commitments (i.e. NEPAD, OAU etc.) and South Africa’s historical commitments to other African countries which need to be acknowledged when developing strategies to combat xenophobia.
• Creating opportunities for interactions between foreigners and South African citizens.
• Encouraging government departments to support each other in the fight against xenophobia - The New Immigration Act allocates the responsibility of combating xenophobia to the Department of Home Affairs. It is, however, not just their responsibility. It is a crosscutting issue, which affects all government departments e.g. Welfare, Education, Health, Foreign Affairs etc. Departments must support each other.
• Educating political leaders, government officials and state departments about their responsibility not to discriminate.
• Starting to develop a regional identity through the school curriculum.

Ms Peberdy concluded with an appeal to PPFA, saying that they, and other government departments, have an opportunity to confront xenophobia as a regional issue. She encouraged them to start thinking about regional initiatives to foster a regional identity.

Mr Joubert commented:

• It is interesting to note that countries that have most contact are the least xenophobia. According to SAMP’s table Spain and Australia exhibit the least xenophobia – Both countries have a high number of foreign tourists. It would seem that the solution is to open up.

Mr Ramgobin commented:

• How many non-whites are there in Spain and Australia?

Ms Peberdy responded:

• There has been a massive increase in the number of Southern Africans entering South Africa with visitors’ permits. Each regional visitor spends between R 8000 and R 9000 in South Africa per trip. Zambians who fly in to South Africa spend approximately R16 000 when they come here to shop. This is the same amount of money as spent by European or US visitors.

Ms Majodina commented:

• In the past women were not recognised as a specific category in the Immigration Act. Has this changed? When Zimbabwean women cross over into Limpopo they have an ethnic identity but what happens when Zimbabwean women come to Johannesburg?

Ms Peberdy responded:

• People tend to picture migrants from Southern Africa as men. There are, however, a number of women. With women xenophobia may take the form of sexual assault and abuse.
• Many female cross-border traders enter South Africa on a visitors’ permit. They enter South Africa for business purposes – either to shop here or to sell their wares at Bruma Lake or Rosebank fleamarkets. These women are not accommodated in the Immigration Act. There may be cross-border ethnic affinities but these can change and they don’t always prevent xenophobia. Zimbabwean women are part of the seasonal agricultural workforce that comes through the border. These different types of women in South Africa suggest that they need to be recognised by the Act.
• People have a lot of respect for borders in the region.

Mr Sithole commented:

• The development of a regional consciousness and identity is really encouraging. Thank you for that presentation.

Ms Peberdy thanked the organisers and reminded them that she would be delighted to take this up with interested parties at a later stage.

Presenter: Ms Josie xxx, Department of Foreign Affairs

Ms Josie highlighted that she would have liked to be able to attend the entire programme because she believes that it can only be addressed through the sharing of views and dialogue. From a foreign affairs standpoint, she noted that South Africa’s foreign policy is informed by its domestic policies and practices. She described xenophobia as a deep-rooted dislike of foreigners and said that it is a problem around the world.

She went on to talk about South Africa’s commitments to combating racism, xenophobia and other forms of discrimination – at the domestic and international level:

• South Africa has engaged in the fight against racism, xenophobia and other forms discrimination, demonstrating its commitment to operationalising the principles in the Constitution, as well as those contained in international commitments. Further South Africa’s commitment to international unity is demonstrated through its support of the UN Declaration of Human Rights and membership of the United Nations.
• South Africa’s isolation during apartheid meant that it was not prepared for the huge influx of refugees and asylum-seekers after 1994.
• In 1997 a UNHRC rapporteur described South Africa as one of the most xenophobic countries. This led government to join forces with NGOs and the SAHRC to launch the Roll Back Xenophobia Campaign. There was agreement that a co-ordinated approach is better than a fragmented one.
• In 1998, President Mbeki, recognised that human rights need to be entrenched and approved South Africa’s national action plan for human rights, according refugees and asylum-seekers with the same human rights as South African citizens, with the exception of some rights like the right to vote. This includes some basic rights for undocumented migrants.
• In a process of transformation countries will always fall short. South Africa needs to apologise to non-nationals and commit to doing more for them in the future.
• At WCAR it was agreed that the levels of xenophobia in South Africa are unacceptable. The Durban platform for action allocated the various stakeholders with greater responsibilities – All public departments were tasked to reduce xenophobia. The Department of Justice was assigned with overall responsibility for the implementation of the domestic platform for action.
• South Africa’s delegation to the UN General Assembly has been asked to lead resolutions against racism, xenophobia and related forms of discrimination.

Ms Josie suggested that racism and xenophobia are inextricably linked and also pointed to a link between xenophobia and poverty. This centres on a perceived struggle for limited resources. In addition, South Africans do not see people from Africa as en empowering force, but rather as people who have come to steal their jobs.

The perception that South Africa is a wealthier country, has contributed to the manifestation of some xenophobic attitudes among South African nationals. These perceptions need to be put into perspective. However, the economic trends in Africa have escalated the problem of xenophobia. When it comes to developed countries the impact of xenophobia is fairly insignificant because there is much less poverty and inequality. This suggests that South Africa – and Africa as a whole – need to promote economic upliftment by working together and co-operating economically. South Africa is still ‘learning’ democracy and needs to keep up the education and dialoguing.

Mr Seremane commented:

• Thank you for an enlightening presentation. In addition to xenophobia and racism, ethnicity also needs to be confronted.
• He emphasised the potential for careless public utterances to subtly revive tribalism and xenophobia and asked whether there is only affinity between those with a similar culture, language, background and roots.

Ms Josie agreed that issues of ethnicity, hate speech and cultural backgrounds need to be confronted.

Mr Sithole commented:

Ms Josie responded:

• She had not heard the presentation implying that government policies are promoting xenophobia and would need more information to comment.
• During dialogue there is a need to deal with the way in which role-players relate to the media.
• President Mbeki has achieved much with regard to OAU and PAP. South Africa is part of SADC and therefore part of the region. In the United Nations there is unity among Africans.
• President Mbeki is to be commended for these milestones. It is encouraging to see how he is portrayed in the media – not as a South African president but an African president. This demonstrates that government is fighting against xenophobia.

Ms Majodina commented:

• It is encouraging to hear that South Africa is highly regarded in the United Nations but there are some concerns around the extent to which South Africa has lived up to its international commitments. It seems that South Africa is lagging behind in terms of its implementation of the WCAR plan of action. Similarly, South Africa has fallen behind in its reporting commitments to the Convention on the Elimination of Racism and All Forms of Abuse and the convention on socio-economic rights. The Convention on the Protection of Migrant Workers and their Families has not yet been ratified and South Africa’s is also late in submitting its reports to the African Commission around regional unity.

Ms Josie responded:

• That SAHRC play an important role in the monitoring of human rights. Their pressure on the Department of Foreign Affairs is welcomed. One of the reasons we haven’t ratified the convention on socio-economic rights is because it raises some of the cultural issues to which Mr Seremane referred and poses some other difficult questions.
• In some areas South Africa is lagging behind but government is working towards the ratification of these instruments. It is critical that once South Africa enters into an agreement it must be able to adhere to those principles. Agreements need to be backed up by sustainable programmes and budget allocations.
• The Department acknowledges that is behind in its reporting requirements but is committed to rectifying the situation. With regard to the report to the African Commission, the Department is still devising its clustering system.
• The Department of Home Affairs is in a better position to respond on ratification of The Convention on the Protection Migrant Workers and their Families.

Presenter: John Rosher, Analyst, Safer Africa

Mr Rosher introduced his submission:

Safer Africa is an NGO focussing on peace and security issues in Africa. Safer Africa works with regional organisations advising them on issues of regional policy.

This submission focuses on how xenophobia relates to the search for peace in Southern Africa.

Racism, ethnicity and nationalism are questions that need to be addressed. Victims of xenophobia can be their own worst enemy. Often foreigner’s misconceptions about South Africans cause them to conduct themselves in a manner, which irritates South Africans.

He went on to discuss some of the ways in which xenophobia relates to the search for peace in Southern Africa:

• Africa is socially, politically and economically fragmented. Africans are only now discovering their identities and nationhood. The situation is compounded by inequality, poverty, violence and war. Africans are now being compelled to embrace the concept of an African Renaissance.
• The increased movement across borders to more prosperous countries fuels xenophobia.
• The racial dimension is one of the most disturbing elements. Why is there racial stereotyping? People are arrested because they are dark skinned – even dark skinned South Africans are sent to Lindela because they ‘appear’ to be foreigners.
• Another serious element are the perceptions that xenophobia is becoming institutionalised, stemming from the reactions of immigration officials. Little action seems to be taken against their behaviour. What message is sent if seniors don’t react? This needs to be addressed.
• There is a need for immigrants to understand how South African society functions so that they may conduct themselves in a manner which does not entrench xenophobia.
• At a socio-economic level there are perceptions that with foreigners arriving prices increase e.g. Cape Town. This contributes to a perception that foreigners come to South Africa with cash. This needs to be addressed from both sides. South Africa needs to provide foreigners with better access to banking systems. Price increases are putting essential services out of the reach of many South Africans. Isn’t this creating xenophobic behaviour?

Mr Rosher then explored the implications of xenophobia on continental stability and why it needs to be addressed:

• African leaders created the AU, NEPAD and other organisations to collectively face the challenges of globalisation and assist member states that lack the power to engage world on an individual basis.
• There is a need for holistic approach to harness resources for Africa to become a key player in world affairs. This would involve the sharing of human and economic resources but leaders have failed to communicate the importance of these political processes to ordinary people.

He went on to discuss the negative implications of xenophobia:

• Xenophobia hinders trans-national dialogue, trade, tourism and other key aspects that are necessary for the success of the African Renaissance.
• Antagonistic attitudes, policies and practices will impede the African Renaissance and the impact of NEPAD.
• Xenophobia also has negative consequences for peacekeeping. African soldiers could be deployed to create peace in different countries. How will xenophobia impact on this?
• Tourist traders cannot conduct trans-national business
• Negative and derogatory perceptions Africans have about themselves could persist resulting in further violence, loss of life and so on.

At a social level:

• Xenophobia creates a lack of social cohesion. Should foreigners attempt to learn about South Africa? Should they socialise with South Africans?

At an economic level:

At a political level:

• Some South Africans feel resentful that President Mbeki spends too much time dealing with African problems when there are so many domestic problems.

He concluded:

Xenophobia is not just a South Africa problem South Africa is seen as the land of meat and honey, offering its population a better life. Will South Africa be perceived to be poaching if it relaxes its policies against xenophobia? There is a need for deeper dialogue with NGOs, media, government and other stakeholders. The Khomanani model has been used to exposed white people to black culture through a number of cross-cultural activities. Perhaps this could be done to assist in the integration of immigrants.

Mr Sithole commented:

• As soon as blacks move in whites move out. Is this xenophobia or racism? Ms Josie raised a number of questions. Is it xenophobia if I speak my language? Both sides have a responsibility. To what extent does xenophobia affect South Africa’s foreign policy? That is what these hearings have aimed to achieve.

Mr Ramgobin commented:

• Government believe that civil society is necessary, but is it acceptable for them to start challenging the legitimacy of government?

Mr Seremane commented:

• Thank you for bridging the gap. Diverse opinions are enshrined in our Constitution. Mr Rocher confronted value issues. During the hearings there has been less heckling and more listening than in Parliament.

Mr Rocher responded:

• Dialogue will demystify attitudes. In 1992 there was a high influx of immigrants into Ponte. Twenty people moved into a single flat. It is necessary for foreigners to understand what type of behaviour this is promoting.
• Safer Africa attempts to find ways, through different meetings, to bring government and civil society together. Many national plans have been developed out of this and perhaps it would be beneficial to share this methodology.

Donovan concluded:

• Touching on issue of networking with other NGOs. South Africa has convened two global conferences where it was evident that many international NGOs that are anti-government. It seems that after democracy has been established, civil society tends to become the opposition.
• It is necessary to raise the awareness that civil society is not an alternative to or better than government. This mentality is part of the problem. Attempts should be made to involve civil society in all economic and social processes. The focus should be on partnership and constructive engagement. However, the PPFA is elected and can ultimately make judgements about the information that has been presented.

Mr Sithole apologised to the chairperson of Cultural Rights and the presenter for Christians for Peace in Africa who would not be able to make their presentations due to time constraints.

Presenter: Hon. NN Mapisi –Nqakula, Minister of Home Affairs

The Minister expressed her appreciation for the opportunity to make a presentation at the hearings. After reports in the media, she said that she was concerned that the Department of Home Affairs had not been given an opportunity to present its perspective. She expressed the hope that this would be the beginning of a process of collaboration between the Department of Home Affairs, NGOs and the SAHRC.

She said that she would try to respond to some of the issues that had emerged but would also not lose focus on the opportunity for meaningful dialogue. She highlighted that this dialogue began at WCAR, saying that government has prioritised these issues since 1994. She expressed concern that after ten years of democracy there was still a tendency to hate people because they come from a different country.

To many, the opening of South Africa to other nations is viewed as competition for resources and freedom. But many countries are well educated and are in a position to benefit South Africa.

As this round of public hearing comes to a close. We as a Department are grateful for the opportunity you have given us to make a presentation before this panel.

Her statement read as follows:

Before concluding the Minister commented further on Lindela:

She said that she also read bad reports but that she only gained a proper understanding of the situation when she visited Lindela. She encouraged NGOs and the media to go and visit, saying that there are certain inaccuracies which need to be corrected starting with the issue of death. It is incorrect to suggest that people have died from torture. There have been deaths but this has been due to pre-existing ailments such as malaria. Nevertheless, she stated that she has instructed that a full report be compiled so that if any death has occurred from things such as torture the perpetrators can be brought to book.

During a recent visit to Lindela she found a young Mozambican who was suffering from epilepsy and had had a stroke. Her immediate thought was why would a policeman arrest a sick person and bring them into detention while they’re dying? Why not rather take them to hospital till they are better and then deport them? The man could not communicate. She instructed that he be released to hospital and taken then back to the flat where he was found. That is what happened. She acknowledged that there might be similar cases.

She went on to acknowledge that there had been children in Lindela. She also had instructed that they be removed. Her concern with some vocal activists was that they were not visiting the centre regularly and were not in a position to speak about it with authority. There must be public scrutiny around Lindela – this is the responsibility of all stakeholders. Even if people are in Lindela the premise is that they still have rights. She could not comment on issues of sodomy but from her visit it was evident that adults and children were not held in the same compound. When Lindela was opened to the media they didn’t come because they said that there is nothing to write about. She added that the SAHRC has a responsibility to go regularly - monthly or weekly.

Government has not signed the protocol on the free movement of people within SADC. She said that she hoped to be one of the signatories. This is in addition to bilaterals with some of the countries about waiving visas, which will mean that border control can be relaxed, and improvements made relatively easily. Essentially the people of Southern Africa are one nation. The priority is now to make South African society aware of the ills of xenophobia. It isn’t just the responsibility of government - civil society is also responsibility. Because South Africa was very isolated until 1994 the opening of the floodgates has unleashed people’s fears. Sanctions compounded this isolation. Now individuals are also required to come to terms with a government that is dealing with tourist and bringing in foreign skills. This anxiety must be alleviated and citizens must be educated about becoming part of the global world. The challenge of education and political conscientisation is huge and in a period of ten years it isn’t realistic to expect dramatic changes.

SAMP has really contributed by assisting in the training of immigration officials – you have to change people’s mindsets.

"Now we have to ask what is it that we can do to contribute to the change of peoples’ mindsets?" she concluded.

The chairperson thanked the minister and said that he would permit four questions from the floor.

• Mr Richard Pillay (International Community Unifiers) asked the Minister whether she would consider holding this forum on an annual basis?
• Mr Ibrahim Hassan, St Mary’s RMC commented that refugee policies are xenophobic – Refugees who have been here for eight years are still experiencing xenophobia when they try to apply for jobs. Every two years they have to renew their status and they are rescreened. The danger is that their status could be denied.
• Mr Mali Sibanda, Zimbabwean Residents’ Association highlighted how he had recently seen a group of policemen arrest a number of illegal immigrants, lock them up and tear-gas them. In a visit to Lindela he came across a very sick Mozambican. There was no treatment or doctors to attend to them. There were nine pregnant women and another in labour. These incidents were reported to the home affairs director. He asked the Minister whether workshops help these people
• A member of Zimbabwean Political Victims Association (ZIPOVA) said that a number of people being arrested were Zimbabweans who have been in South Africa for a long period of time. He appreciated the government’s provision of identity documents to foreigners in 1994, allowing them to participate in elections and asked whether this could not be done again. He said that thousands of asylum-seekers are deported on a daily basis and suggested that the resources that are spent on deportation could be used to empower foreigners. He added that many foreigners have expertise, which could be used to benefit the country.
• The Minister responded that there are many different permits, which people can apply for in South Africa. There is no reason why people should remain here illegally. If they are here illegally then the government does not know about them and so how can they be empowered? There are many Zimbabweans in Lindela who openly claim that they have been to Lindela before and vow that as soon as they are deported they will return to South Africa. It is a waste of resources but there is no need for them to enter illegally when there are different permits for which they can apply successfully.
• She told of one illegal immigrant who has been here since 1980 and questioned why he remains here illegally. In 1995 there was an amnesty and foreigners were given identity documents. There is a perception that South Africans lived in other countries, and now that South Africa has its freedom foreigners are entitled to live here. However, South Africans in other countries were still required to obtain the necessary documentation. They were not permitted to violate the laws of a country. South African exiles would also be locked up and threatened with deportation. Foreigners with asylum documents are not deported. Rumours among Zimbabweans that their status is delayed because they belong to a certain party are simply not true.
• Commenting on the extent of brutality exhibited by certain police, the Minister said that to change their attitudes requires an entire mindset shift. Many served as police under apartheid and were required to enforce the apartheid pass laws. Their attitudes are a rollover from apartheid and these are the mindsets that have to be changed. They have to be taught that foreigners have a right to come to South Africa. Under South Africa’s immigration law police are not entitled to stop anyone at any time. They may not conduct raids at schools. They may not stop an individual because their skin is darker – this is xenophobia at its best. These types of officials do still exist but they are not the officials of the state.
• The Minister expressed her sympathy towards pregnant women in Lindela and said that they have to be deported within a week of detention. However, she asked why they remain in South Africa illegally. She stressed that even pregnant women would be deported but emphasised that this did not have to be the case.
• She maintained that the two-year renewal of refugee status is not xenophobic. South African exiles in other countries were required to renew their documents. However, the kinds of questions that officials raise during the reapplication process may be xenophobic. If this is the case it can be investigated. People should not have to answer embarrassing questions.
• This forum needs to happen more frequently than once per year. It is appropriate that it is hosted by the SAHRC as a neutral organisation. It could even be expanded to include those organisations which represent immigration agencies, which also have very strong views. This forum could then provide concrete ways in which the various stakeholders can enhance their work.

Mr Sithole closed the questions and thanked the Minister for participating in this process. He apologised to the organisations that had not been able to present their submissions due to time constraints.

The question that these hearings aimed to address was the extent to which xenophobia impacts on South Africa’s foreign policy. The information that has been provided is much appreciated. The SAHRC and the PPFA will produce a report, which will be presented to Parliament. The aim of a forum like this is to promote debate. There is a tendency to exaggerate, for example, during the hearings one of the respondents reported that he had a number of forged identity documents in his possession. He was invited turn these over as evidence to the Commissioner of Police, but never returned.

Mr Kollapen said that during his opening remarks he had commented that these hearings were historic. He felt that the process had been a success. The debates had been frank, robust and at times bruising – indicative of South Africa’s fast maturing democracy. Deficits are still considerable and there is still a need to be mindful of these issues. The Minister reminded participants that legislation alone is insufficient; it is necessary to get deep into people’s mindsets to change these attitudes.

Mr Kollapen added that the process has also indicated that some of the role-players are not talking to each other. The need to work together has emerged strongly. The SAHRC will take up suggestions to convene this forum on a more regular basis. Hopefully tensions will be reduced over time.

He concluded by thanking Mr Sithole for coming up with the idea for the hearings. He also expressed his thanks to Ms Majodina, the PPFA, the staff of the SAHRC, and to those who had presented written or verbal submissions. Finally he thanked the Minister of Home Affairs, saying that her presence sent a powerful message and demonstrated government’s commitment to improve the situation.

On behalf of the PPFA, Mr Joubert thanked participants and especially the SAHRC, saying that the PPFA would like to contribute financially to the process.

He concluded:

1. A visible and vocal commitment, demonstrated through concrete action, is required from Government and other political and societal leaders, such as members of the national and provincial legislatures. Citizens of the country must know what the unequivocal position of the Government is regarding xenophobia.
2. The Department of Home Affairs (DHA) should fulfill its responsibilities with regard to the prevention of xenophobia in the South African community. The Department should be provided with the necessary resources, including staff capacity, and be able to draw on the expertise and support of civil and other institutions.
3. The role of the South African Human Rights Commission (SAHRC) in monitoring the implementation of the Constitution and practices affecting the human rights of foreign residents in South Africa, including refugees and migrants, is absolutely crucial. The Commission should apply its mandate to "audit" and report on measures taken by local, provincial and national authorities in giving effect to the socio-economic rights of refugees. Resources should be provided to the Commission to enable it to fulfill its tasks.
4. The SAHRC should increase its visibility in supporting promotional and dissemination campaigns to combat xenophobia. The Commission should seriously consider reviving its engagement with UNCHR and the National Consortium on Refugee Affairs (NCRA) in the Roll Back Xenophobia Campaign.
5. The SAHRC is encouraged to lend appropriate support towards the initiative of the Department of Home Affairs to establish an institutional structure and programme to deal with Xenophobia.
6. A concerted effort needs to be undertaken to educate the personnel of all sectors of the civil service, including the police, health and education officials, on refugees and their rights. Such information should be included in syllabi for the induction and continuing training of such civil service personnel.
7. Human rights organizations and NGOs need to visibly, vocally and continuously maintain their role as advocates of the rights of refugees and migrants and monitors of their welfare. They need to develop more "muscle" and act in partnership with other like-minded organizations in addressing the problem head on. Efforts should be made to enlist trade unions members as well as members of the refugee and migrant communities should be actively sought.
8. The media must continue to investigate and expose the issues affecting the situation of refugees, both nationally and globally, while challenging the negative stereotyping and portrayal of refugees and migrants as criminals and economic opportunists with relevant factual information about the positive attributes and impact of these communities.
9. The subject of human rights and its relevance to the treatment of refugees and migrants, as well as to violations and abuse on the African continent as root causes of forced migration should be made mandatory in the syllabus of South African educational institutions at all levels-tertiary, secondary and primary. Emphasis should be given to conveying the values and culture shared in common with other African peoples and nations and promoting knowledge about institutions and processes, such as the African Union and NEPAD, engaged in the promotion of regional integration and development.

 

 

10. Increasing inter - govermental cooperation around policy issues that should be inclusive rather than exclusive of foreigners. For instance, the Department of Home Affairs plans to establish a joint operations committee bringing together representatives from different government departments to assist with policy formulation. This needs to be operationalised.
11. Constant and consistent monitoring of such policies. In the spirit of the South African Constitution, NGO’S should reinforce rather that attack government.

 

12. President Mbeki has embraced African Renaissance – the Immigration Act highlights the need to attract foreign skills necessary to the country. Many African refugees and asylum-seekers already in South Africa possess such skills and high levels of education. Instead of using these resources towards the development of the country, South Africans prefer to import these skills from Europe and the United States (US). This would also help to highlight their ability to contribute positively, addressing many prevalent Xenophobic perceptions.

22. Reporting abuse and/ or harassment. Introducing mechanisms at government departments where verbal or physical abuse and corrupt practices can be reported. These mechanisms could include anonymous telephone calls to a helpline or farms at police stations and other government departments. Promoting the idea that it is the responsibility of all South Africans to curb Xenophobia by reporting any Xenophobic acts.
23. Establishing a joint task team consisting of NGO’s, SAPS, various government departments including labour; defence; social welfare; home affairs; foreign affairs; education, Chapter 9 institutions. The purpose of the task team would be to raise awareness around the concept that immigrants are not a burden on the country but rather can make positive contributions.
24. Introducing an amnesty period to allow undocumented migrants from Africa and Asia, who have been in the country for more than Seven years, to apply for documentation.
25. Putting pressure on banks to treat African immigrants with greater respect and consideration.
26. Lobbying countries that sell arms and ammunition to African countries to provide material aid to South Africa and other countries affected by migration.
27. Challenging big business in South Africa who continue to perpetuate racism, Xenophobia and inequality. Their attitudes have not changed in the post-1994 period but are just cloaked in different ways.
28. Introducing a system, which provides people with access to detainees at Lindela to help with their difficulties

ANNEXURE A

The South African Human Rights Commission (SAHRC) together with the Parliamentary Portfolio Committee on Foreign Affairs (Portfolio Committee) agreed to hold open hearings on xenophobia and problems related to it so as to address the root causes of alleged human rights violations of non-nationals. The basis for the SAHRC’s participation at these hearings is its constitutional mandate as set out in Section 184 (1) and (2) of the Constitution. In terms of sub-sections (1) the SAHRC must:

1. promote respect for human rights and a culture of human rights;
2. promote the protection , development and attainment of human rights; and
3. monitor and assess the observance of human rights in the Republic.

Subsection (2) describes the powers of the SAHRC and these are:

1. to investigate and report on the observance of human rights;
2. to take steps to secure appropriate redress where human rights have been violated;

Before the hearings the SAHRC had received complaints of alleged human rights violation and /or treatment of non-nations at the hands of both South African citizens and the authorities such as the South African Police Services (SAPS), government officials and Lindela Repatriation Centre. The allegations that had been brought to the attention of the SAHRC related to the following allegations:

"

• South Africans have very negative attitudes towards foreigners, do not want to associate with them and accuse them of stealing their jobs;
• Members of the SAPS abuse their powers by arresting them without a reason, tear their asylum documents and ask for bribes in order to release them;
• Employees of the department of Home Affairs do not want to consider and process their applications for asylum and other requests within a reasonable time;
• They also complain about the inhuman treatment they receive at the repatriation centres such as Lindela. They allege that security officers assault them and ask for money in order to release them."

The open hearings were conducted in different phases and the role of the SAHRC in the process included it undertaking the following:

1. Commissioning the background document intended to provide members of the panel at the hearing with information pertaining to problems around xenophobia and how it manifest itself;
2. Drafting and publishing the Terms of Reference to give direction on the scope and objective of the hearings;
3. Identifying key organisations and inviting them to participate at the hearings;
4. Receiving submissions from the public relating to alleged xenophobia and problems related to it;
5. Hosting of the open hearings; and
6. Drafting the report setting out the conduct of the hearings.

The Terms of Reference for the holding of the hearings were agreed upon by the SAHRC and the Portfolio Committee. The main objectives for the hearings were:

1. To come to an understanding of the state of xenophobia in South Africa;
2. To respond to concerns of South Africans ;
3. To get a better understanding of the underlying causes and manifestations of xenophobia;
4. To assess the effects of xenophobia on non-nationals;
5. To consider the impact of xenophobia on South African society as a whole; and
6. To review measures taken so far to combat xenophobia and assess their effectiveness.

The hearings were held over a period of three (3) days before a panel consisting of Commissioners from the SAHRC and members of the Portfolio Committee. Representatives from non-governmental-organisations (NGO’s), individuals (both South African and non-nationals) and representatives from government made submissions during the open hearings. The themes of the hearings were the same as those illustrated in the Terms of Reference and referred to above.

The hearings had to deal with complex matters that are associated with violations of internally recognised standards on how immigrants have to be treated by host countries. These standards are prescribed in international Conventions and Protocols that South Africa has either ratified or is signatory to. The issues around xenophobia were also looked at from a premise that some of the conduct complained of is in violation of national legislation, in this case, the Immigration Act and the Refugee Act.

5. Ensuring that the Department of Home Affairs and Lindela develop detailed minimum standards with regards to procedures to be followed in the arrest, detention and treatment of detained immigrants.