South Africa July 2006 |
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| Thumbs down for refugees plea, (Business Day, 2006-07-10):-In a recent judgment the high court continued the love-hate relationship that SA appears to have with its refugee population. The term “refugee” describes those people who have been formally recognised as such by the home affairs department under the Refugees Act, 1998. In the matter of Rutimba and others v The Director: Private Security Industry Regulatory Authority and others the Pretoria High Court considered whether refugees can register as security officers in the private security industry. The high court concluded it was reasonable and justifiable for the legislation to limit membership of this trade to South African citizens and permanent residents. The court held this to be the case because of the trust vested in private security officers. The legislation allows the regulatory authority a discretion to register non-citizens and non-permanent residents if the applicant for registration has “good cause” for waiving this limitation (in the opinion of the authority). Only persons registered under the Private Security Industry Act Regulation Act may provide a security service for reward. Furthermore, only South African citizens and those people who are permanent residents, may be so registered. On the other hand, the Refugees Act provides that refugees enjoy “full legal protection”, which includes the rights to life and to their dignity. In addition, the act provides that a refugee is entitled “to seek employment”. Ultimately, the refugee and his or her family needs to be able to live and there is very limited welfare support available to refugees.Refugees in SA face many difficulties in this context. They cannot get police clearances from their countries of origin, which clearances are needed for registration under the Private Security Industry Act. In addition, refugees do not qualify to apply for permanent residence in SA until they have been in the country as refugees for at least five years.Furthermore, a critical preliminary requirement to qualify for permanent residence is that the Standing Committee for Refugee Affairs must first certify that despite the passage of time the refugee is likely to remain in SA “indefinitely”. This protracted stay has to arise from the conditions prevailing in the refugee’s country of origin. In terms of the standing committee’s practice it will only accept an application for the certificate once the refugee has had that refugee status for five years. Refugees also face the difficulty that many permanent-residence applications are taking years to be decided due to the enormous backlog created by home affairs-driven delays. Given the uncertainty of the duration of their stay and, frequently, their lack of formal skills, the security industry is often employment of choice for many refugees. Among other things, the applicants challenged the constitutionality of the restriction contained in section 23(1) of the Private Security Industry Act Regulation Act. The challenge arose not least because registration applications in terms of the “safety net” in section 23(6) were not succeeding because the regulatory authority was applying a blanket policy of refusing applications, which did not comply with section 23(1), the applicants alleged. The court reviewed a number of recent judgments dealing with the right to work as well as the role and standing of security officers and of the private security industry in the South African economy generally. The court noted that the constitution provides for certain offices of state to be held by South African citizens only. Examples included Constitutional Court judges, the public protector, members of the Human Rights Commission, the auditor-general and members of the Electoral Commission. This limitation had already been found to be legitimate. The court then drew a parallel between the “high level of trust required by the above-stated offices” and that of private security officers in the interests of public safety. The court held that whereas section 22 of the constitution permitted a distinction to be drawn between the rights of citizens and non-citizens, the rights in Section 22 — the right to choose one’s trade, occupation or profession — was not absolute and did not afford refugees any relief. The court held that the limitation in terms of section 23(1) was a reasonable limitation of refugees’ rights as contained in section 27 of the Refugees Act. It was also held that the restriction was further ameliorated by the safety net in section 23(6) of the Private Security Industry Act Regulation Act. The court rejected the application with costs, concluding that “the public interest ... adequately justifies the limitations imposed by section 23(1) (of the Private Security Industry Act) on the rights of refugees to be registered as security service providers…. Refugees are free to seek alternative gainful employment in other industries, trades or professions where the security of the public will not be compromised.” The court was not asked to consider, and did not comment on, the position of asylum-seekers in SA who, being applicants for refugee status, are perhaps even more vulnerable than refugees. The court did not comment directly on the effect of Article 17.1 of the 1951 United Nations (UN) Convention relating to the Status of Refugees on this debate. SA has long-since acceded to this convention and has incorporated it, by reference, in the Refugees Act. It is regrettable that the parties did not join the UN High Commissioner for Refugees and the home affairs minister to the proceedings to hear their views on this subject, given that the judgment has ramifications internationally. Presumably, the refugee community in SA will be hoping that other sectors of the economy do not follow the example of Private Security Industry Act Regulation Act. Attorneys for the applicants have indicated that they will be seeking leave to appeal against this decision. | |
South African Migration Project (SAMP) - Queen's University - http://www.queensu.ca/samp |