ABSTRACT

Since the transition to democracy in 1994, South Africa has experienced an increase in xenophobia. The May 2008 xenophobic attacks, as well as evidence of renewed threats of violence in Gauteng and the Western Cape illustrates that hostility to foreigners is a prevalent issue in South African society. A history of exclusion, poor service delivery by local governments, slow development and an increase in poverty and inequality, an unwiltingness to acknowledge the political and humanitarian crisis in Zimbabwe, and, in particular, South Africa’s closed-door migration policies have provided a breeding ground for xenophobia. South Africa’s political and economic progress will continue to attract immigrants and this challenge needs to be addressed with a properly managed immigration policy for the betterment of both South Africa and the region.

1. INTRODUCTION

Since the transition to democracy in 1994, South Africa has experienced an increase in xenophobic attacks, including both verbal and non-verbal abuse, harassment, as well as the destruction of foreigners’ homes and businesses. In May 2008, these attacks became especially violent, and for the first time since the apartheid era, the police needed assistance from armed forces to quell the violence. The violent attacks started in Alexandra, a residential township in Johannesburg, before spreading across Gauteng and then throughout the country. Approximately 62 people lost their lives, 670 were injured, dozens were raped and about 100 000 people were displaced (Landau 2009: 2). Two thirds of those killed were foreigners, while the others were South Africans who had either married foreigners, refused to take part in the violence, or were born in Mpumalanga or Limpopo (Landau 2009; Matzopoulos et al 2009: 2). Thus the insider/outsider dichotomy expanded beyond foreign nationals to other ‘outsiders’ in communities, for example those who spoke a minority language (Shangaan and Venda-speakers) or came from a different province (Polzer 2010: 9). For example, your safety was determined by whether you could answer the interrogative ‘yini le?!’–’what is this?!’ while pointing to a part of the body and requiring the correct isiZulu response (Everatt 2011: 8). Thus pointing to a general intolerance of the ‘other’ and highlighting a much broader concern for this rainbow nation.

The xenophobic attacks which have taken place, mostly targeting immigrant workers and asylum seekers from the African continent, illustrates that hostility to foreigners and ‘outsiders’ is a prevalent issue in the South African society (UNHCR 2010). According to a World Values Survey on Attitudes to Immigration and subsequent research conducted by the Southern African Migration Project (SAMP) South Africans hold the most hostile views of immigrants in comparison to 29 nations (Crush and Pendleton 2004; Philip 2008). This has motivated many discussions concerning the reasons for the prevalence of xenophobic attitudes and the violence, the suitability of the government’s response, and the need for improved immigration policies (McKinight 2008:19). Evidence of renewed xenophobia in the Western Cape (Ntshingila 2010) and threats of violence targeting foreign shop owners in Gauteng (Gauteng DLGH 2011)illustrates that these issues have not yet been resolved and require proper investigation.

Understanding the underlying reasons for the widespread xenophobia in South Africa is crucial, on a micro-level, to ensure that future attacks are prevented, and, on a macro-level, to ensure that the basic tenets of regional cooperation are met, namely tolerance and acceptance of other people. Xenophobic attitudes and actions are counter to the Southern African Development Community’s (SADC) aims of regional cooperation and development and its Draft Protocol on the Facilitation of Movement of Persons, to which South Africa is a signatory. This paper will first present the current migration trends in South Africa, as well as an overview of the xenophobic attacks in the country. Subsequently, it will provide an analysis of the underlying causes of xenophobia in South Africa, focusing on South Africa’s immigration policy.

2. CURRENT MIGRATION TRENDS IN SOUTH AFRICA

In the post-apartheid era, there has been a change in the magnitude and type of migrants. Until the end of the 1990s, European immigrants dominated, as they had tended to do during the apartheid era. However, as the new regime abandoned racist selection criteria, the immigration trend started to change, and today most immigrants, documented as well as undocumented, come from neighbouring countries (McConnell 2009: 37). Even though South Africa has widespread poverty and inequality, the country is wealthy in comparison to many of its neighbours. Therefore, it acts as a magnet to people from the rest of the continent, who enter the country both legally and illegally (Aggad and Sidiropoulos 2008: 2). Exact figures of migrants in South Africa are not avallable, as tracking undocumented migrants is a difficult task (McConnell 2009: 37). However, a conservative estimate of the actual foreign population is between 1.6 and 2 million or 3-4 per cent of the total national population (Polzer 2010: 3). In particular, Zimbabwe’s deplorable economic and political situation has accelerated the immigration flow over the last few years to South Africa and makes them the largest group of foreign migrants in the country. Human Rights Watch estimates that between one and 1.5 million Zimbabweans have fled to South Africa between 2005 and 2008 (Human Rights Watch 2008). Consequently these immigrations have had a huge impact on South Africa’s social landscape, including demand for jobs, housing, and other services (Aggad and Sidiropoulos 2008: 2).

South Africa is also an output country. It has experienced a significant number of skilled emigrations, especially in the industrial, medical and education fields. The combination of the emigration of skilled workers and the legacy of the poor education system for black South Africans under apartheid has created a shortage of skilled labour in South Africa and poses significant challenges for development in the country (McConnell 2009: 37).

Although South Africa is experiencing a massive brain drain, the skilled migrants already within the country’s borders contain a wealth of resources. However, even with the need for skilled professionals in South Africa, these immigrants are often unable to find work that matches their skills, often due to discrimination. Many of these immigrants must resort to finding unskilled jobs. As a result, this leads to unskilled South Africans feeling that their jobs are being ‘taken’ by immigrants, as the immigrants and unskilled South Africans compete for the same types of jobs (McConnell 2009: 37). This has contributed to widespread hostility towards foreigners.

3. XENOPHOBIA IN SOUTH AFRICA

Xenophobia, defined as a deep dislike of non-nationals by nationals of the recipient state, is a common phenomenon in the South African society (Valji 2003:1). While the xenophobic attacks in 2008 and later in 2009 resulted in widespread national and international attention, xenophobic attitudes towards African foreigners have been prevalent throughout the post-apartheid era (Crush 2000: 106). Since the transition to democracy in 1994, hundreds of people have been harassed, attacked, or killed because of their status as foreigners (IOM 2009: 7). Moreover, hostile attitudes towards foreigners have continued to harden, especially towards foreigners from Africa (Crush and Ramachandran 2009: 15). A 2001 SAMP survey showed that 21 per cent of South Africans wanted a complete ban on the entry of foreigners, whilst 64 per cent wanted strict limits on entry (Crush and Pendleton 2004: 9). Despite overwhelming evidence of deep-seated xenophobic attitudes in the South African population, the issue has largely been ignored in the public political discourse (Crush and Pendleton 2004: 9). Both inside and outside the government, previous attacks were seen by many largely as a by-product of the country’s rapid social transformation and integration into the world economy (IOM 2009:7). Even the response of the government to the May 2008 attacks was largely denialist in character (Crush and Ramachandran 2009: 15). Some parts of the government blamed criminal masterminds for the violence, while others denied that there was a crisis at all. However, statements from perpetrators and other township residents made it clear that the frustrations and anger behind the violence were widespread in the population. Although not everybody supported the killings, almost all agreed that there were “too many” foreigners in the country (Landau 2009: 2). The denialist attitude of the government is a crucial problem when it comes to managing xenophobia in South Africa and by attributing the violence to criminal fringe elements; xenophobia was unfortunately swept under the carpet. Ignoring the presence and reality of deep and Iongstanding xenophobic attitudes, results in the ineffective management of the issue. Some sections of the government have, however, begun to acknowledge the issue, nevertheless, it remains to be seen if their efforts will be sufficient to roll-back xenophobia.

A number of explanations for xenophobia in South Africa can be put forward. Historical roots of exclusion, relative deprivation and a lack of socio-economic improvement in the lives of the majority of South Africans offer some insight into the phenomenon.

3.1 Historical roots–culture of exclusion

While xenophobia is seen by many as a relatively new phenomenon in South Africa, the immigration policy under apartheid included a racial component, which could have laid the foundation for an enduring culture of exclusion. During the apartheid regime, xenophobia was expressed through laws and policy, which led to strict controls over anyone who was seen to be different (not white) from the leading elite (Kruger 1969: 64). Today it appears that the hatred against foreigners is replacing the divide between white and black South Africans (McKnight 2008: 21) as the xenophobic attitudes impose a national label rather than a racial one (Siddique 2003: 17). This change must be understood in light of the historical context of exclusion that has been evident throughout South Africa’s history. During apartheid, the government developed a language of alienage to deny both political rights and rights to residence to South Africa’s black majority. Although the black South Africans could not be fully excluded or externalised, through the implementation of pass laws they were made into temporary sojourners and denied the rights of citizenship. By this, their presence was formally allowed only as long as they were useful. Immigrants today, especially from the African continent, experience a similar situation. The primary difference is that the citizenry today is South Africa’s black majority, while the immigrants are the ones without political rights and rights of residence (Landau 2009: 6-7). This history of exclusion has provided a foundation on which xenophobic attitudes have developed and increased in intensity in South Africa. However, blaming the recent spate of xenophobic attacks on South Africa’s history removes agency from its current citizens who actively participated in the attacks and it thus does not serve to fully explain the motivations behind the violence.

3.2 Relative deprivation

Harris (2002: 171) argues that the relative deprivation theory sheds light on the underlying causes of xenophobia in South Africa. Hostility towards foreigners is in this theory understood in relation to limited resources such as housing, education and employment, coupled with high expectations resulting from the political transition. According to the theory, the current situation in South Africa is an ideal situation for a phenomenon like xenophobia to take root and flourish. In the post-apartheid era, while peoples’ expectations have been heightened, a realisation that delivery is not immediate has fuelled frustration in the society (Harris 2002: 171-172). The poverty and inequality levels have either remained consistent or increased since the political transition to democracy and many citizens experience greater economic insecurity than they did during the apartheid era (Landau 2009:5). More than 50 per cent of the population lives below the poverty line (Pillay 2009: 14). Moreover, South Africa has the largest gap between rich and poor in the world (Pressly 2009).

The country faces a huge challenge with regards to unemployment rates, which in 2009 was estimated to be 24 per cent (ClA 2009). However, unofficial estimates are even higher, and were estimated to be 33 per cent (The Presidency of SA 2009). This difficult socioeconomic context creates intense competition for resources amongst the poor. Subsequently, foreigners are seen as a threat and are often blamed for the limited access to jobs, housing and commodities. This is illustrated in a comprehensive study conducted by the International Organization for Migration (IOM) in 2009, which found that hostile attitudes towards immigrants in the townships in South Africa were widespread, and often based on the fear of competition on the labour market and local business, as well as limited service delivery. Relative deprivation theory suggests that “a key psychological factor in generating social unrest is a sense of relative deprivation” (Harris 2002: 171-172). This arises from a subjective feeling of discontent based on the belief that one is getting less than one feels entitled to.

When there is a gap between aspirations and reality, social discontent is likely to result. Moreover, violence is not an unusual outcome of relative deprivation (Harris 2002). In light of this, the xenophobic violence stems from fear and anger by South Africans who believe their stakes are threatened by immigrants, especially from other African countries (McKnight 2008: 19).

However, a 2001-2002 survey conducted by SAMP indicated that hostile attitudes towards non-nationals are widespread amongst the poor and the rich, the employed and the unemployed as well as blacks and whites (Crush and Pendleton 2004: 2). This poses a problem in terms of explaining the xenophobic attitudes solely using the relative deprivation theory, as some of the findings run counter to the explanation that only certain groups in a population, namely the socially deprived, are more prone to xenophobic attitudes (Crush and Pendleton 2004).

3.3 An issue of governance

Responsibility for the increase in xenophobia also lies with the current government and a general lack of good governance. Diamond (2005:1-12) recognises that “governance matters” as he explains: “the nature and quality of governance, and the types of policies that governments choose, have a huge impact … in shaping how economies perform, and whether and how rapidly people will escape from mass poverty”. Good governance is expected to reduce conflicts, inhibit and expose corruption and mismanagement, and generally create the incentives for governments to adopt policies for and channel resources to long-term socio-economic development (Ikome 2007: 147). There are three areas where a lack of good governance has contributed to xenophobia in South Africa: firstly, the country’s socio-economic issues have been exacerbated by inefficient service delivery; evidenced in the continuous service delivery protests resulting from dissatisfaction with the delivery of basic municipal services. These protests or[en come in the wake of political promises during election periods, where high expectations were created and subsequently left unfulfilled (Burger 2009). Secondly, the South African government has remained “quiet” with regards to the political crisis and human rights abuses prevalent in its neighbour Zimbabwe. Zimbabweans in South Africa cite xenophobia, discrimination, police harassment, unemployment, unlawful deportation and lack of access to basic services (Sisulu et al 2007: 553) as some of the challenges they face in this country. This hostile reception is largely a result of the denial by the South African government that there is a serious political crisis in Zimbabwe. Although it is recognised that there is an economic crisis, its political roots are not properly acknowledged. Zimbabweans are thus generally defined as economic migrants as opposed to political refugees thus making it difficult for them to gain asylum. In addition, many of these immigrants are reluctant migrants and desire to return to Zimbabwe should the internal circumstances change. Third, in combination with the above factors, a lack of proper migration policies as well as a poor response to the attacks, contributed to the extent of the xenophobic attacks (Aggad and Sidiropoulos 2008: 3). The xenophobic attacks against African immigrants point to the dire need for the ruling African National Congress (ANC) to review, and then actively implement its immigration policy.

4. SOUTH AFRICA’S IMMIGRATION POLICIES

During apartheid, the ruling regime used immigration policy as an instrument of racial policy, and the official definition of an immigrant was that he or she had to be able to assimilate into the white population (Crush 2008). As a consequence, black immigrants were not allowed to apply for South African citizenship. At the same time, the policy encouraged cheap immigrant labour from neighbouring countries (Lotee 2008:3). The major and last piece of immigration legislation introduced by the apartheid regime was the Aliens Control Act of 1991, which codified numerous legislative amendments that had reinforced strict controls on the immigration to South Africa. It stated that any person suspected of its contravention could be arrested without warrant and deported (Klotz 2000: 832).

With the transition to democracy in 1994, the new regime did not initially repeal the apartheid immigration policy, and the Aliens Control Act became the cornerstone of the ANC’s policy throughout the 1990s (Klotz 2000: 832). Besides the abandonment of racist principles, continuity with the previous immigration policy became the guideline (Ellis 2008: 77). Moreover, the new government adopted an ideology that South Africa had to be protected from “outsiders” and prioritised to put the need of its citizens first in line for transformation and change (McConnell 2008: 34). This may have contributed to xenophobic attitudes in the society, as immigrants were framed as something “dangerous”. In 2002, after nearly eight years of negotiations, the new Immigration Act was signed into law and this is seen as a milestone in the development of the immigration policy. The Immigration Act eased the entry of skilled workers while stepping up efforts to locate and remove irregular migrants. It also committed the government to root out xenophobia in society, although without specifying how this was to be achieved (Dixon 2008).

The Immigration Act remains both unpopular, unchanged, and enjoys very little support from government, business and civil society. Although it is a sign of attempts to adopt a more migrant-friendly policy, the Act is considered limited and ambiguous. At the same time as it supports skilled labour and provides a number of ways for such immigrants to enter the country, it retains a strong security and sovereignty-centred agenda. This implies that the Act does little to support the poor, and the emphasis is almost exclusively focused on attracting highly skilled migrants. At the same time, the migration patterns in South Africa have become more complex and diverse. Despite this mixed flow of migrants, the government has not yet developed an all encompassing policy to address this reality. Key weaknesses of the Act include ineffective border controls, viewing migration as an issue of control rather than development, and insufficient protection of migrants.

4.1 Weak border controls

The post-apartheid regime has been characterised by an enforcement apparatus that shaped the pre-1994 regime (Landau 2009: 9). Rather than effective border controls, the immigration policy has been directed towards internal control, focusing on enforcement activities on places where undocumented migrants worked, interacted with governing agencies, and sought refuge and resources, rather than the places that they originated from and moved through (Vigneswaran 2008: 784). The intention was, according to Vigneswaran (2008: 784) to “transform the host environment into a place where undocumented migrants would feel unwelcome, and thereby be encouraged to return home, or better yet, not come at all”. Based on this policy, the police continue to enforce both immigration and influx controls on South African streets and have come to dominate the manner in which South African immigration laws are enforced (Vigneswaran 2008: 796). This restrictive immigration approach has not contained undocumented migrants, but rather encouraged “a massive ‘trade’ in forged documentation” and “police corruption as migrants buy the right to stay” (Crush et al 2005: 13). Moreover, Landau (2009: 3) emphasises that “South Africa’s extended and inherently permeable borders enable non-nationals to move into the county relatively unencumbered and untagged”.

The government’s approach to legal and undocumented migration in South Africa through enforcement, control and exclusion, as well as reliance on deportation, instead of proper border controls and management, has resulted in an increasing influx of undocumented immigrants and subsequent trade in forged documents. Moreover, Pillay (2009: 26) recognises that “no migration policy or strategy aimed at alleviating xenophobic tensions can be contemplated if the national borders are porous and people can come and go as they please. Such a lack of control leads to abuse and corruption and heightens the vulnerability of people who reside in the country illegally. Regularising citizenship is naturally a long-term goal or objective and government’s role is central”.

4.2 An issue of control rather than development

A major policy goal of the ANC is the economic development of the country. However, after the regime shift in 1994, immigration was not included as part of the development strategy. According to Crush (2008), rather than seeing immigration as a development opportunity, the government has seen immigration as undesirable and therefore framed immigration policy reform primarily as an issue of control and exclusion. Moreover, the government has rarely seen migration as an economic tool or linked it to South Africa’s socio-economic transformation. This is evident in both the Reconstruction and Development Programme (RDP) and the Growth, Employment and Redistribution (GEAR) strategy, economic policies, which were both silent on migration in general (EIlis 2008: 90; Landau and Wa Kabwe-Segatti 2009: 29). Thus, the ANC’s lack of understanding of the impact immigration has on the economic development has contributed to the absence of an active immigration policy. The recent economic policy, the New Growth Path, should nevertheless be commended for its recognition (albeit brief) of the need to streamline an immigration system, which is conducive to the inflow of skills, whilst simultaneously improving the skills base of South Africans through proper education and training. A development which may indicate an increasing awareness and acknowledgement of the country’s current skills shortage and its need for a more flexible approach to immigration.

4.3 Insufficient protection of the immigrants

The South African Constitution guarantees all people in the country, citizens and both documented and undocumented non-citizens, basic rights (Polzer 2010: 3-4) and the legal framework governing asylum is among the most expansive and progressive in the world. Despite this legal framework, the increasing influx of refugees and immigrants and the feared impact on the economic structure of the country, has contributed to less focus on refugee and immigrant protection, and more on containment, expulsion, and denial of rights (McKnight 2008: 21). The focus on identity documents, detention and deportation is illustrative of this, as is the need for asylum seekers and refugees to report regularly to designate reception offices (Landau 2009: 9). Challenges in implementation of the constitutional and asylum frameworks, including the provision of documentation and basic services to non-nationals, undermine the practical impact of formal legal protection (Polzer 2010: 5). Landau (2009: 4) argues that “rather than protection, almost every engagement with purported agents of law places the immigrants outside of it … South Africa has de facto suspended elements of its normal legal order vis-a-vis refugees, asylum seekers, and undocumented migrants through both commission and omission”. Moreover, the government encourages refugees and others to live among citizenry. However, this is done without giving them access to the basic rights citizens assume (Landau 2009).

While the government promotes regional integration vis-a-vis foreign direct investments and highly skilled labour, there has been little effort to facilitate the movements or protect the rights of low or moderately skilled immigrants, although this is the largest influx group of immigrants. Despite a growing number of bilateral agreements, legislation continues to differentiate and discriminate against unskilled workers. Highly skilled workers who have worked continuously for five years or have permanent contracts may apply for permanent residence. Others who want to extend their stay have few mechanisms for doing so and are often criminalised, excluded from critical social services, and subject to detention and deportation (Landau 2009: 9).

Moreover, Polzer (2010: 5) argues “the immigration regime is not well adapted to national and regional needs and realities as it does not provide adequate access to documented migration options in ways which address South Africa’s skilled and labour needs”. The lack of rights, has led to a situation where many immigrants accept jobs with wages lower than what South Africans would accept. This has generated a segmented labour market with South Africans being undercut by an exploitable immigrant population (Landau 2009: 9). Since these migrants enter without proper documentation, they become personae non grata, making them vulnerable to abuse and exploitation from potential employers, the security apparatus as well as the local communities, with little or no recourse to law.

5. UNDERSTANDING THE WEAKNESSES OF SOUTH AFRICA’S IMMIGRATION POLICY

Even though the ANC has not been actively hostile to immigration, the party’s policy has largely been characterised by indifference. There are various reasons for a weak and partly incongruous immigration policy, and this article will focus on the following explanations; the initial tension between the Inkatha Freedom Party (IFP) and the ANC in the Government of National Unity; the influence of the Tripartite Alliance; and South Africa’s refusal to properly recognise the political and humanitarian crisis in Zimbabwe.

5.1 The Department of Home Affairs

The South African approach towards immigration has at rimes been rather confused and contradictory. The will to change the immigration policy in the country has been considerable, but the transformation process has been delayed by the complexity of the issues and political tension between the ruling ANC and the IFP (Crush and McDonald 2001: 1). The two departments with the highest degree of involvement in the formulation and implementation of immigration policy are the Department of Home Affairs and the Department of Foreign Affairs. During the first decade of post-apartheid government, these two areas were split between the different members of the Government of National Unity. The ANC was given control of the Department of Foreign Affairs, whilst the IFP was given control of the Department of Home Affairs. Whilst the primary responsibility for immigration policy rests with Home Affairs, Foreign Affairs handles negotiations which concern the impact of South Africa’s immigration policy on the rest of the region, and any international discussion regarding this issue (Siddique 2003: 20-21). In light of this, progress on immigration reform was slowed by contradictions within the Cabinet and Parliament between the IFP and the ruling ANC and diminished ANC influence over policymaking (Crush, 2008). Generally, the IFP advocated the adoption of a rigorous approach to immigration management. This is evident in the attitudes of Buthelezi, the leader of the IFP and former Minister of Home Affairs, who is one of the most vocal anti-immigrant spokespersons in South Africa (Danso and McDonald 2001:132). Moreover, the different emphasis of the two departments contributed to the inconsistencies in the approach to immigration. However, as the ANC became in charge of both departments in 2004, this laid a foundation for a more comprehensive policy towards immigration.

5.2 Impact of the Tripartite Alliance

Pressure from different interest groups on the ANC in the immigration field has made it difficult for the government to implement immigration policies single-mindedly. This opposition has been advanced by a powerful anti-immigration discourse which constructs immigrants, particularly African immigrants, as alien and a fundamental threat to the interest of citizens (Crush and McDonald 2001:10). Moreover, the ANC is part of a tripartite alliance with the South African Communist Party (SACP) and the Congress of South African Trade Unions (COSATU). Due to this close cooperation, the ANC is subject to significant political pressure that is both ideological and based on the demand to create or preserve jobs for South Africans in the first instance (Ellis 2008: 130). This has influenced the ANC’s immigration policy and made it more restrictive.

5.3 “Quiet” diplomacy with Zimbabwe

Zimbabwe is currently the biggest contributor of immigrants to South Africa, yet they are amongst the most insecure within South Africa’s boundaries. Zimbabwean immigrants are labelled economic immigrants, despite the political origins of the economic crisis (De Jager 2009:15). McKnight (2008: 23) argues that the government’s refusal to acknowledge Zimbabweans as political refugees fuels the belief in the local society that these foreigners came to South Africa to compete for jobs, instead of them being temporary migrants, who have often fled for their lives. Although the South African government has adjusted its policy towards Zimbabwean immigrants with a twelvemonth ‘special dispensation permit’, this is unlikely to be enough to change the hostile attitudes towards Zimbabwean immigrants. There is still an urgent need to acknowledge the political roots of the crisis in Zimbabwe, enabling the immigrants to apply for asylum and its concomitant benefits.

5.4 New shifts

Although the ruling party has yet to address the deeply troubling social and political consequences of migration, there is a dawning recognition that immigration and emigration are critical to the country’s developmental trajectory (Landau and Wa Kabwe-Segatti 2009: 32). In the early 2000s, a shift in policy direction occurred in response to perceptions of a massive brain drain from South Africa, as the ANC started an international search for skilled immigrants (Wa Kabwe-Segatti 2008: 90). This changing attitude can be seen in the context of the economic strategy, which followed GEAR, the Accelerated and Shared Growth Initiative-South Africa (ASGISA), which sought to halve unemployment and poverty by 2014. In this context the shortage of skilled labour was obvious, as it formed a major impediment to the ASGISA vision of growth and distribution. Moreover, the government launched a further initiative that particularly aimed to develop skilled workers, the Joint Initiative for Priority Skills Acquisition (JIPSA). The JIPSA emphasised accelerated training of South Africans in priority areas. At the same time, it also acknowledged that particular sectors required skills from outside the country. These policy changes imply a significant shift in government thinking on migration, as the government has become convinced of the significance of South Africa’s serious shortage of skilled labour, and the need to incorporate this in the immigration policy to be able to achieve the national interest of economic development (Ellis 2008: 122-123). Furthermore the recent New Growth Plan, which focuses on job creation and skills training, also acknowledges the need for a more streamlined immigration system to assist with the in-flow of necessary skills and skills transfer programmes. The government has also accepted that planned and managed immigration should be harnessed as a development strategy to bring needed skills and business investors into South Africa (Skilled Immigration, 2010). However, up until now, this international hunt for skilled immigrants has remained very discrete, while other areas of immigration have not been radically transformed (Wa Kabwe-Segatti 2008: 90). Nonetheless, the shift towards recognition of immigration as a development tool shows a promising trend and a more active immigration approach. This approach was underlined by Malusi Gigaba, the Deputy Minister of Home Affairs, when he stated in late 2009 that “policy shifts must ensure that we integrate migration into development strategies and planning, and thus take its positive benefits into cognizance” (Skilled Immigration 2010).

There have also been shifts in policy towards Zimbabwean migrants. Initially, the South African government, having proclaimed its solidarity with Zimbabwe’s leadership, categorically labelled Zimbabweans as economic migrants. Until 2007, there were regular reports that Refugee Reception Offices were refusing all asylum applicants from Zimbabwe (Landau and Segatti 2009). Moreover, hundreds of thousands Zimbabweans have been deported from South Africa, justified by the contention that Zimbabweans were all economic immigrants, rather than refugees (IRRI, 2009). This approach to managing Zimbabwean migration did not address the nature or scale of immigration and resulted in high levels of illegal migration, human rights abuses and negative impacts for South Africa (Polzer 2009: 2). However, due to internal and external pressure on the South African government, this approach changed in April 2009. The Department of Home Affairs announced its intention to grant Zimbabweans a twelve-month ‘special dispensation permit’ on the basis of the Immigration Act of 2002. These permits give Zimbabweans the right to legally live and work in the country. As complementary measures, a suspension on deportations and a 90-day free visa for Zimbabweans entering South Africa have been implemented from May 2009. The new policy is a distinct change from the status quo and evidence of a substantial shift in the country’s stance. Moreover, it represents a positive shift towards a rational, coherent and regionally beneficial migration management approach (IRRI 2009; Polzer 2009). It now needs to include innovative approaches to dealing with low- and unskilled migrants.

Some have feared that the new policy will increase the overall volumes of migration from Zimbabwe. However, Polzer (2009: 2) argues that this is unlikely. She explains that though border crossing statistics may rise, this is an intended consequence of legalised movement, since previously invisible border-jumpers will become documented by the state. Moreover, the special dispensation permits are likely to facilitate Zimbabweans’ return home rather than providing incentives to remain in South Africa. This is because people can return to Zimbabwe for short periods to test the stability and economic opportunities without fearing the loss of their ability to earn livelihoods in South Africa. Also, the free visa and the special dispensation permit will enable the state to measure the volumes and impacts of migration more effectively (Polzer 2009: 2-3). This new approach might indicate that the government has recognised the necessity to manage and monitor migration. In addition, to encourage legal immigration and help reverse undocumented immigration, an active approach might also contribute to reduce the ‘us versus them’ attitude that has been central to xenophobia in South African society (IOM 2009: 53).

6. CONCLUDING REMARKS

A history of exclusion, closed-door migration policies, an unwillingness to acknowledge the political and humanitarian crisis in Zimbabwe, poor local governance and a lack of meaningful service delivery, and an increase in poverty and inequality have provided a breeding ground for xenophobia in South Africa. Moreover, xenophobia in South Africa is a deep phenomenon that extends beyond a fear or dislike of foreigners, to a broader dislike of the ‘other’ as evidenced in the fact that the violence and attacks included many South Africans and not only foreign nationals. This hatred of those ‘foreign’–a sentiment which has not changed since 2008–is one that the government has not yet fully acknowledged, much less addressed, beyond isolated efforts. The introduction to the 2002 Immigration Act maintains that xenophobia needs to be contested. However, the Act lays out no specific measures and there is no evidence that the Act itself has made any difference to South African attitudes. Unless the government acknowledges and addresses the realities of xenophobia, it will be very difficult to move forward with new development-oriented policy initiatives and programmes.

The positive developments of the Immigration Act of 2002 and the implementation of the New Growth Plan, as well as the innovative introduction of special temporary permits, are acknowledged. However, the challenge remains for South Africa to first concede that xenophobia is an issue, and recognise that the attacks on foreigners have xenophobic roots, and secondly, for the government to develop a migration policy that seeks to manage migration rather than combat it or let it happen on its own. This needs to be combined with the improvement of service delivery, especially at local government level; skills development and protection services for both nationals and non-nationals. Ultimately it must be recognised that South Africa’s political and economic progress will continue to attract immigrants and this challenge needs to be properly managed for the betterment of both South Africa and the region.

—–

REFERENCES

Aggad, F and E Sidiropoulos. 2008. “South Africa’s Tipping-point”. South African Institute of International Affairs, 2 June. Available at: http://www.opendemocracy.net/article/affica/south-africas-tipping-point. Accessed 5 April 2010.

Burger, J. 2009. “The reasons behind service delivery protests in South Africa”. Available at: http://www.polity.org.za. Accessed 3 July 2010.

CIA, 2009. “South Africa”. The World Factbook. Available at: https://www.cia.gov/library/publications/the-world-factbook/geos/sf.html.

Crush, J. 2000. “The Dark Side of Democracy: Migration, Xenophobia and Human Rights in South Africa”. International Migration, Vol 38, No 6, pp 103-133.

Crush, J. 2008. “South Africa: Policy in the Face of Xenophobia”. Migration Policy Institute. Southern African Migration Project. Available at: http.//www.migrationinformation.org/Feature/print.cmf?ID=689. Accessed 5 April 2010.

Crush, J and W Pendleton. 2004. “Regionalizing Xenophobia? Citizen Attitudes to Immigration and Refugee Policy in Southern Africa”. Migration Policy Institute. Southern African Migration Project. Available at: http://www.queensu.ca/sam/sampsources/samp_publications/policyseries/ policy30.htm. Accessed 5 April 2010.

Crush, J and S Ramachandran. 2009. “Xenophobia, International Migration and Human Development”, Human Development Research Paper, No 47.

Crush, J, Williams, V and S Peberdy. 2005. “Migration in Southern Africa”, paper prepared for the Policy Analysis and Research Programme of the Global Commission on International Migration, September 2005.

Danso, R and D A McDonald. 2001. “Writing Xenophobia: Immigration and the Print Media in Post-apartheid South Africa”. Indiana University Press, Vol 48, No 3, pp 115-137.

De Jager, N. 2009. “Zimbabwe’s influx into South Africa: a crisis of governance”, Unpublished paper, University of Stellenbosch.

Diamond, L. 2005. “Democracy, Development and Good Governance: The Inseparable Links”, Paper delivered at the Maiden Annual Democracy and Governance Lecture of the Ghana Centre for Democratic Development, Ghana, 1 March, pp 1-12.

Dixon, R. 2008. “South Africa: Riots, Policy”, Migration News, 11 October. Available at: http://migration.ucdavis.edu/MN/comments.Php?id=3449 0 5. Accessed 28 March 2010.

Ellis, S. 2008. “South Africa and international migration: the role of skilled labour” in Wa Kabwe-Segatti, A and L Landau (eds). Migration in post-apartheid South Africa: Challenges and questions to policy-makers. Research Department Agence Francaise de Development.

Everatt, D. 2011. “Xenophobia, State and Society in South Africa, 2008-2010″. Politikon, Vol 38, No 1, pp 7-36.

Gauteng Department of Local Government and Housing, 2011. “MEC Humphrey Mmemezi intervenes in Freedom Park over attacks on business owners”. Available at: http://www.dlhg.pg.gov.za/Pages/ MECHumphreyMmemeziintervenesinFreedomParkoverattacksonbusinessowners.aspx. Accessed 24 January 2011.

Harris, B. 2002. “Xenophobia: A new pathology for a new South Africa?” in Hook, D and G Eagle, G (eds). Psychopathology and Social Prejudice. Cape Town: University of Cape Town Press.

Human Rights Watch, 2008. “Neighbors in Need”. Available at: http://www.hrw.org/en/reports/2008/06/18/neighbors-need. Accessed 24 January 2011.

Ikome, F. 2007. From the Lagos Plan of Action to the New Partnership for Africa’s Development: The political economy of African regional initiatives. Midrand: Institute for Global Dialogue.

International Organization for Migration (IOM), 2009. Towards Tolerance, Law and Dignity. Addressing Violence against Foreign Nationals in South Africa, No 1.

International Refugee Rights Initiative (IRRI), 2009. “South Africa Attempts to Help Zimbabwe Migrants through New Permit System”. Available at: http://www.refugee-rights.org/Publications/RRN/2009/May/ V5.13.SouthAfricaAttempts.html. Accessed 4 April 2010.

Klotz, A. 2000. “Migration after apartheid: Deracialising South African foreign policy”. Third World Quarterly, Vol 21, No 5, pp 831-847.

Kruger, D W. 1969. The making of the nation. Johannesburg: Macmillan.

Landau, L B. 2009. “Attacks on foreigners in South Africa: more than just xenophobia?” University of the Witwatersrand.

Landau, L and A Wa Kabwe-Segatti. 2009. “Case Study: South Africa, in Human Development Impacts of Migration”, Human Development Report 2009, United Nations Development Programme. Available at: http://www.undp.org. Accessed 5 April 2010.

Lotee, T. 2008. “Country Studies Series: South Africa”. Brandeis University. Available at: http://www.coexistence.net. Accessed 3 Apri12010.

Matzopoulos, R, Corrigall, J and B Bowman. 2009. “A health impact assessment of international migrants following the xenophobic attacks in Gauteng and the Western Cape”. University of the Witwatersrand. Available at: htt://programs.ifpri.org/renewal/pdf/JohannesburgHealthImpact.pdf. Accessed 3 April 2010.

McConnell, C. 2009. “Migration and Xenophobia in South Africa”. Conflict Trends. Issue 1, pp 34-40.

McKnight, J. 2008. “Through the Fear: A Study of Xenophobia in South Africa’s Refugee System”. Journal of Identity and Migration Studies, Vol 2, No 2, pp 18-42.

Ntshingila, S. 2010. “SAPS in Western Cape Settlements Amid Xenophobia Fears”. NewsTime. Available at: http://www.newstime.co.za/SouthAfrica/ SAPS In Western Cape Settlements_Amid_Xeno_phobia_Fears/7580/. Accessed 13 July 2010.

Philip, R. 2008. “No one hates foreigners like we do”. Sunday Times, 25 May 2008.

Pillay, S. 2009. “Xenophobia, Violence and Citizenship” in Hadland, A (ed). Violence and Xenophobia in South Africa: developing consensus, moving to action. South Africa: Human Sciences Research Council.

Polzer, T. 2010. “Migration Fact Sheets. Population Movement in and to South Africa”, Forced Migration Studies Program, University of the Witwatersrand.

Polzer, T. 2010. “Of Strangers and Outsiders–Overcoming Xenophobia”. Quarterly Roundtable Series, Helen Suzman Foundation.

Pressly, D. 2009. “South Africa has the widest gap between rich and poor”, Business Report, 29 September. Available at: http://www.busrep.co.za/index.php?fArticleld=5181018. Accessed 3 July 2010.

Siddique, M A B. 2003. “South Africa Migration Policy: A Critical Review”, The University of Western Australia. Available at: http://econpapers.repec.org/ paper/uwawpaper/04-17.htm. Accessed 5 April 2010.

Sisulu, E, Moyo, B and N Tshuma. 2007. “The Zimbabwean community in South Africa”. In The State of the Nation 2007. Pretoria: HSRC Press.

Skilled Immigration, 2010. “Policy shift on immigration set to benefit SA’s economy”, 25 February. Available at: http://www.skills_portaI.co.za/skillsdevelopment/ 250210-skilled4mmigrans-economiv-policy.htm. Accessed 5 April 2010.

The Presidency Republic of South Africa, 2009. “Development Indicators 2009″. Available at: http://www.thepresidency.gov.za/learning/me/indicators/2009/ indicators.pdf. Accessed 3 July 2010.

United Nations Refugee Agency (UNHCR). 2010. “UNHCR condemns xenophobic attacks in South Africa”. Available at: http://www.unmultimedia.org/ radio/english/detail/86156.html. Accessed 11 June 2010.

Valji, N. 2003. “Creating the Nation: The Rise of Violent Xenophobia in the New South Africa”. CSVR. Available at: http://cormsa.org.za/wp-content/ uploads/Research/Xeno/riseofviolent.pdf. Accessed 5 April 2010.

Vigneswaran, D. 2008. “Enduring territoriality: South African immigration control”. Political Geography, Vol 27, No 7, pp 783-801.

Nina Hopstock and Nicola de Jager

Department of Political Science

University of Stellenbosch

Hopstock, Nina^de Jager, Nicola

—–
Source Citation
de Jager, Nicola, and Nina Hopstock. “Locals only: understanding xenophobia in South Africa.” Strategic Review for Southern Africa 33.1 (2011): 120+. Academic OneFile. Web. 7 Dec. 2011.

Since the economic and social breakdown in Zimbabwe, hundreds of thousands of people have fled the country for South Africa, including thousands of unaccompanied refugee minors. An unaccompanied refugee minor, or a “URM, ” is a person under the age of eighteen who has either crossed the border alone or with another child, or who has found himself or herself living in a foreign country without an adult caregiver. Zimbabwean URMs come to South Africa in search of education, shelter, or jobs to support family back in Zimbabwe. Unaccompanied refugee minors who travel to South Africa face a myriad of challenges, including physical safety, life without a parent or guardian, legal and social discrimination, and a constant struggle to find food, shelter, education, health care, and employment. Although these children have rights under international and domestic law, political and other factors combined have denied children the protection and support to which they are legally entitled.

While South Africa has been somewhat responsive to the needs of Zimbabwean adults, it has largely ignored those of unaccompanied refugee minors. This paper shifts that focus and argues that South Africa must immediately turn its attention to the plight of the thousands of unaccompanied minors who have entered the country from Zimbabwe. Specifically, it advocates for the adoption and implementation of comprehensive and carefully tailored legislation to protect unaccompanied minors who enter the country primarily for economic and educational reasons. Enactment and enforcement of such laws would respond to the immediate crisis of Zimbabwean URMs, while providing a sustainable approach for dealing with similar refugee populations in the future.

INTRODUCTION

Moses Re Muleya, ** a fourteen-year-old Zimbabwean boy, lives in an overcrowded shelter in the South African border town of Musina. His father died approximately one year ago, a victim of political violence; his mother suffers from HIV. Given Zimbabwe’s crippled economy, Moses’ mother encouraged him to travel to South Africa to earn money to help support her and his four younger brothers. In December 2008, he and a friend boarded a train and made the 538-mile journey to the border. Since arriving, he has been forced to beg and run errands to survive. He has been unable to enroll in school, find steady work, or travel safely to Zimbabwe to visit his family, nor has he had access to a social worker to help him with these problems, something to which he is theoretically entitled to under South African law.

Unfortunately, Moses’ experience is not unique. In recent years, thousands of children have traveled alone from Zimbabwe to South Africa to seek a better life for themselves and their families. Currently, almost the entire unaccompanied refugee minor (“URM”) population in South Africa is Zimbabwean, with approximately 1,500 URMs living in the Musina area alone] Most children came with a sibling or a friend, but about 25% traveled alone. (2) The majority are between the ages of twelve and eighteen, with the largest percentage between the ages of fifteen and seventeen. (3) Approximately 70% of the children are boys. (4) It is likely that there are a greater number of girls, but the girls tend to work as domestic laborers or sex workers and thus remain unseen. (5) Some of the girls are young mothers, coming with children of their own. (6)

Unaccompanied refugee minors who travel to South Africa face a myriad of challenges, including physical safety, life without a parent or guardian, legal and social discrimination, and a constant struggle to find food, shelter, education, health care, and employment. (7) Although these children have rights under international and domestic law, political and other factors deny children like Moses the protection and support to which they are legally entitled. Some suggest that South Africa has been reluctant to move aggressively towards protecting Zimbabwean refugees because to do so might threaten the country’s self-assumed role as international mediator in the Zimbabwean conflict. (8) Others explain that the South African government is concerned that increased efforts to recognize and assist Zimbabwean refugees would strain the country’s already overburdened infrastructure, encourage even more migration to South Africa, and exacerbate internal tensions around the refugee situation. (9)

To the extent that South Africa has responded to the refugee crisis, its focus has been on the needs of Zimbabwean adults. (10) This article shifts that focus and argues that South Africa must immediately turn its attention to the plight of the thousands of unaccompanied minors who have entered the country from Zimbabwe. Specifically, it advocates for the adoption and implementation of comprehensive and carefully tailored legislation to protect unaccompanied minors who enter the country primarily for economic and educational reasons. Enactment and enforcement of such laws would respond to the immediate crisis of Zimbabwean unaccompanied minors while providing a sustainable approach for dealing with similar refugee populations in the future.

Part I of this article provides background information on the circumstances that have led to the mass migration of unaccompanied minors from Zimbabwe. Part II examines the life of URMs in South Africa, including barriers and challenges that prevent them from taking advantage of their rights. Part III discusses the numerous international and African treaties that apply to URMs. Part IV focuses on South African domestic law and how it has been interpreted to apply to political rather than economic refugees. Lastly, Part V offers recommendations for addressing the plight of Zimbabwean URMs, including proposed legislation and additional humanitarian aid.

I. PUSH AND PULL FACTORS: WHY DO ZIMBABWEAN URMs COME TO SOUTH AFRICA?

In 1980, when Zimbabwe gained independence from Great Britain, the Zimbabwe African National Unity Party (“ZANU-PF”) came into power, led by former political prisoner Robert Mugabe. (11) Mugabe was the Prime Minister until 1987, when he became President after merging the two offices. (12) Despite being a one-party state, Zimbabwe prospered, benefiting from its long legacy of public education and commercial farming. In the 1990s, Zimbabwe had the highest literacy rate in Africa. (13)

In 2000, the Mugabe-led government embarked on a controversial land reform policy which redistributed over 4,000 white-owned commercial farms to non-land owners. (14) The land redistribution program led to a collapse of the fertilizer industry, disruptions in transportation and irrigation systems and a massive decline in foreign currency, all of which contributed to the current economic crisis. (15) The Zimbabwean economy has contracted by 35% since 2005, while unemployment has soared past 80%. (16) Annual inflation rates of 1,700% (17) and a serious food shortage make simple household items, such as milk and bread, too expensive for many families to afford. (18)

Zimbabwe’s previously vaunted school system has essentially collapsed. Teacher salaries have fallen to Z$5 million, the equivalent often American dollars per month. (19) These meager salaries have not kept up with inflation, causing many teachers to seek employment in neighboring countries. (20) By the beginning of 2007, over 15,200 teachers had migrated to countries such as South Africa, Botswana, Namibia, and Swaziland. (21) Efforts to replace them with untrained recruits have failed. (22) The combined lack of resources, competent teachers, and students has resulted in the closing of virtually all public schools. (23) Because they are unable to receive a proper education in Zimbabwe, many children travel to South Africa for better opportunities. They believe that the school system is the “best thing” about South Africa, and they want to benefit from it. (24)

Zimbabwe also lacks the resources to provide its citizens with basic sanitation and health care. There is a severe lack of clean water for drinking, bathing, ablution, and food preparation. (25) Many people are forced to relieve themselves outdoors, rather than using the toilets in their homes, thereby contaminating the existing water supply and leading to serious diarrhea and cholera outbreaks in large portions of the country. (26) Like much of Southern Africa, Zimbabwe is also afflicted with an HIV and AIDS pandemic. In the country of 13.1 million, approximately 2 million people or 15.6% of the population has HIV or AIDS. (27) While the AIDS population has decreased since 2001, (28) the vastly underfunded government cannot provide those who still struggle with the disease with the antiretroviral drugs necessary to keep them healthy. (29) Thus, the average life expectancy in Zimbabwe has dropped below forty years old. (30)

The land redistribution program marked a change in the reasons that Zimbabweans travel to South Africa. Previously, they came to visit family, vacation, and shop and most returned to Zimbabwe voluntarily. (31) al Only a small fraction crossed the border without official documentation. (32) Unlike today, many Zimbabweans felt that their country was safer and a better place to raise a family. (33) However, since 2000, the majority of Zimbabweans, including unaccompanied minors, come to South Africa for reasons tied to the economy. Many URMs, like Moses, come in search of work in order to earn money to send home to their families. (34) Some have lost parents or other caregivers to political violence, starvation, AIDS, or abandonment. (35) Without someone to provide for them in the chaotic environment of Zimbabwe, they migrate to South Africa where they may have family and friends to support them (36) or where they imagine they will have a “better life.” (37) While some children want to stay in South Africa, many others want to travel legally and safely to and from Zimbabwe. (38)

II. LIFE IN SOUTH AFRICA FOR ZIMBABWEAN URMs

Many URMs have lofty expectations of South Africa, but they face many hardships both crossing the border and surviving in South Africa. The journey across the Zimbabwe-South Africa border is dangerous for any person, but it is especially dangerous for URMs. Some children migrate to South Africa by train or minibus, but the vast majority of URMs walk at least a portion of their journey. (39) While the risk of wild animals and exposure to the elements is undoubtedly a concern, the greater danger is the risk of exploitation. (40) To make themselves less visible to the authorities, many URMs use irregular channels of border crossing, (41) which makes them more vulnerable to physical or sexual violence, theft, and muggings. Gumagumas (“scavengers”) often wait in the bushes for unsuspecting travelers. (42) The gumagumas will take money in return for guiding URMs across the border, but then often steal larger sums of money and assault the children. (43) On the South African side of the border, “border jumper” gangs may attack the children and steal whatever cash or valuables they have left. (44) In an attempt to avoid the gumagumas, some children must trade money or sex to malaishas (“human smugglers” or “truck drivers”) to assist in their passage into South Africa. (45) Approximately 10% of URMs paid off border guards or police to gain entry into the country. (46) Overall, approximately 40% of children gave some form of payment to enter South Africa and over one third of URMs experienced some sort of violence on their way to South Africa. (47) The girls are especially vulnerable to sexual exploitation, whereas the boys are at risk for physical brutality. (48) Because the children are undocumented, they rarely report these occurrences to the authorities for fear of deportation. (49)

Migrants most often enter from Zimbabwe at Beitbridge, Maroyi, and Dite, small border towns near Musina, South Africa. (50) Musina also borders Botswana and Mozambique. (51) Because of its location, it has a history of being a city of migrant workers. (52) The recent instability in Zimbabwe, however, has led to a dramatic increase in Zimbabwean migrants, overburdening the municipality’s resources.

Once they reach South Africa, URMs encounter a serious shortage of humanitarian services, employment, and educational opportunity. The South African government is largely unable and unwilling to provide services for URMs, and the few locally run shelters lack the capacity to handle the volume of children who need their services. (53) Moreover, the URMs face hostility not only from the South African authorities but also from South African citizens. (54)

One of the constant worries for URMs and other refugees is the risk of deportation. Even though deportation of unaccompanied minors is illegal under South African law, (55) overburdened government agencies see no alternative but to send children back to their native country. In practice, the experience of detention is most acutely felt by migrants between thirteen and eighteen years old. (56) Some children are arrested when they cross the border or are trying to reach Musina. (57) The majority, however, are arrested and deported after authorities stop them on the street and ask for documentation, which they cannot produce. (58)

Lindela, near Johannesburg, and Soutpansberg Military Grounds (“SMG”), near Musina, are the two most prominent deportation centers in South Africa. (59) The conditions at these facilities are substandard, with insufficient toilets and sleeping quarters to meet the needs of detainees. (60) Contrary to South African law, children are held with adults, further increasing their vulnerability to being harmed. (61) Despite the time and resources spent on the deportation of minors, the process is counterproductive; once the children are dropped on the Zimbabwe side of the border they simply reenter South Africa. (62)

Although many URMs come to South Africa in the hope of finding work, the reality is that employment opportunities for minors are very limited because South African law makes it illegal to employ undocumented workers and/or workers under the age of eighteen. (63) Additionally, South Africa has a 40% unemployment rate, resulting in fierce competition for the jobs the URMs are seeking. While some businesses are willing to take the risk of employing URMs, many are not. (64) Because the children who obtain a job do so in contravention of South African law, employers exploit minors by paying them less than market wages. (65) A significant number of URMs take seasonal employment on farms. (66) Many of the girls take on domestic labor, where they are at additional risk for exploitation and sexual abuse. (67) Because farm and domestic labor are largely out of the public eye, it is impossible to determine exactly how many URMs are employed in these jobs. (68) Some children earn subsistence money through informal means: selling fruits and vegetables, washing cars, running errands, doing housework, and engaging in the sex trade. (69) These types of jobs not only compromise children’s rights, but expose them to sexually transmitted diseases, including HIV/AIDS. (70) While most children want to save money in order to provide for family back home, the majority are unable to do so because they are barely surviving on their wages. (71)

For many of the children who enter South Africa through Musina, it is not their intended final destination. The majority hope to make their way to Johannesburg to find work, but the cost and logistics of travel make that difficult. (72) The United Nations High Commissioner for Refugees (“UNHCR”) does make an effort to help URMs contact family members in other parts of South Africa and provides transportation in an attempt to re-connect families. (73) Nevertheless, UNHCR cannot provide this service to all URMs who need it.

Although URMs list education as the main reason they come to South Africa, many are disappointed when they arrive. (74) Despite a constitutional mandate to provide education to all children residing in South Africa, (75) school administrators often impose superficial roadblocks to providing education to Zimbabwean children. Some principals, for example, require official documentation to enroll in school–papers which the children do not possess. (76) Others turn away children because they cannot afford school fees or uniforms. (77) Additionally, South African schools are already overcrowded, especially in the border areas surrounding Musina, and therefore are not accepting additional students. (78) Although some international organizations, such as the United Nations Children’s Fund (“UNICEF”), are planning to erect temporary schools and bringing in additional teachers, it is a time-consuming and costly enterprise that leaves children without access to education in the interim. (79) The lucky students who are able to complete secondary school are often unable to continue to the university level because one must be a South African citizen to be eligible for higher education student loans. (80) Moreover, many URMs are afraid to enroll in school for fear of making themselves more visible and thus more vulnerable to deportation. (81)

In 2008, South Africa was hit by a wave of xenophobic attacks against Zimbabwean refugees, particularly in Johannesburg and Tschwane. (82) These were largely targeted at adults and are believed to have been caused by tensions over competition for jobs and scarce government aid resources. (83) Some children have also experienced xenophobic attacks, especially in the form of arbitrary arrest and beatings by police officers. (84) Zimbabwean URMs additionally confront xenophobia in the school setting, where they are made to feel different and unwanted due to language differences and their inability to afford school uniforms. (85) Fortunately, this type of national prejudice has declined as South Africans grow accustomed to the increased number of Zimbabwean refugees, (86) and as schools have begun to implement a curriculum on tolerance, (87) Additionally, Zimbabweans’ ability to speak English and Zulu has made them less conspicuous than other refugee populations and better suited to assimilate into South African culture. (88)

The plight of children entering South Africa from Zimbabwe has recently become even more dire. From July 2008 to April 2009, the Musina Showgrounds served as an informal refugee settlement or camp where Zimbabwean refugees congregated to sleep, receive minimal services, apply for asylum, and meet others in a similar position. (89) The South African government did not sanction the use of the Showgrounds for this purpose and prohibited the construction of “permanent structures” such as tents or portable toilets. (90) The government resisted creating a formal refugee camp because it believed such a facility would attract additional Zimbabweans to the country. (91) As a result, refugees staying at the Showgrounds slept under the open sky or in makeshift tents created from plastic bags and barbed wire fences and relieved themselves in the bushes. Because there was no formal policing of the Showgrounds, women and children were especially vulnerable to sexual violence. (92) The situation became so serious that in November 2008, Save the Children-United Kingdom (“SCUK”) declared Musina an emergency zone. (93)

Although the government did not provide any humanitarian services to the Showgrounds, international organizations provided minimal assistance. For example, Doctors Without Borders provided medical treatment and SCUK distributed food. (94) In response to the dangers of the Showgrounds, SCUK created “child-friendly spaces” to help serve the needs of mothers and young children. (95) These “child-friendly spaces” provided protection from adult males, food, informal education (with an emphasis on health and life skills), recreational activities, and assistance in filing asylum papers for the mothers. (96) Unfortunately, the spaces were only open for limited hours from 8 a.m. to 4 p.m. and thus did not protect women and children during the night, when they were most vulnerable. (97) Moreover, the Showgrounds were relatively unclean and exposed to the elements.

On March 2, 2009, the South African Department of Home Affairs (“DHA”) ordered the Showgrounds closed and disassembled all semi-permanent structures without a realistic alternative plan for the refugees. (98) The government declared that those people already in possession of documents would have fourteen days to travel to the Refugee Reception Office (“RRO”) in Johannesburg to renew their temporary asylum permit or they would face deportation. (99) The government required those without asylum documents, including all URMs, to return to Zimbabwe to apply for asylum. (100) Even those with documentation lacked the resources to make the 520-kilometer trek from Musina to Johannesburg, and if they do make it, it may take several days to reach the front of the queue at the Johannesburg RRO. (101) Additionally, one cannot apply for asylum from one’s home country, thus asking the refugees to return to Zimbabwe is futile. (102) Therefore, this plan effectively prevents any lawful means of seeking asylum. (103) Without the minimal amount of protection from the Showgrounds, local resources and shelters are even more strained than previously.

There are currently only two functioning shelters in the Musina area that provide services to unaccompanied minors, the Uniting Reform Church Shelter (104) and the Concerned Zimbabwe Citizens Campbell Shelter. (105) While providing ad hoc support, they are insufficient to provide for all those in need of their services; the shelters only accept boys and have a limited capacity. (106) Both shelters were formed by local churches and are funded almost entirely by donations from congregants. (107) They do not receive government money, and international organizations only sporadically supply them with items such as blankets and hygiene products. (108) The accommodations are sparse: children sleep on dirt floors and in tents and converted garages. However, this is more protection than they would be receiving otherwise, and they are also provided food, clothing, and informal education. Moreover, the shelters are in a double-bind with the government: they cannot be licensed (and therefore cannot receive money) because they are substandard, but they cannot receive funds to meet regulations until they are licensed. (109) Despite their best efforts, those who run the shelters are consistently on the brink of collapse due to insufficient funding.

The problems minors face is further exacerbated by the fact that the provincial and municipal governments, the organizations bearing the brunt of the financial burden of attending to the refugees, are severely overextended and underfunded. Musina, the city most severely impacted by the influx of Zimbabwean refugees, only has five social workers to help provide services and documentation for the refugees and adult-asylum seekers. (110) Any attempt to provide food or shelter is taken on by international relief organizations or local privately-run shelters. These services are irregular and do not provide for all of those in need nor a sustainable solution to the problem.

III. THE INTERNATIONAL AND AFRICAN LEGAL FRAMEWORK FOR URMS

South Africa has signed numerous international treaties pertaining to the rights of URMs. The current situation of URMs living in South Africa, however, demonstrates that these laws are not being enforced in a way that affords children the broad spectrum of rights to which they are entitled.

South Africa is a signatory to four key international and continental treaties that affect URMs: the United Nations Convention Relating to the Status of Refugees (“UN Refugee Convention”), the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (“OAU Convention on Refugees”), the United Nations Convention on the Rights of the Child (“UNCRC”), and the African Charter on the Rights and Welfare of the Child (“ACRWC”).

The traditional definition of “refugee” under international law is contained in the UN Refugee Convention. According to that instrument, a person must meet four criteria to be considered a refugee: the person (1) must be outside his or her country of origin, (2) must have a well-founded fear of persecution, (3) based on either race, religion, nationality, membership or a particular social group or political opinion, and (4) must be unwilling or unable to avail himself or herself to the protection of the country of origin for fear of persecution. (111) An additional provision is that one would lose his or her refugee status upon return to the country of origin. (112)

A critique of the UN Refugee Convention is that its narrow definition of refugee does not capture the situation faced by many African refugees, whose circumstances are a product of ethnic or tribal conflicts, socioeconomic breakdown, and natural disasters such as famine. (113) For that reason, the drafters of the 1969 OAU Convention on Refugees chose to define refugee in broader terms and gave African refugees greater rights than those provided by the UN Refugee Convention. (114) The OAU Convention on Refugees defines a refugee as any person compelled to leave his or her country “owing to external aggression, occupation, foreign domination or events seriously disturbing public order in either a part or the whole of his country of origin or nationality.” (115) The OAU Convention on Refugees also provides a general right to asylum, (116) a right to be housed in a refugee settlement, (117) and a right to mandatory issuance of travel documents. (118) Additionally, it states that refugees will not lose their refugee or asylum status by merely returning to their country of origin. (119)

Although the OAU Convention on Refugees provides a broader definition to account for the African context, it lacks some of the important provisions contained in the UN Convention on Refugees. For example, the OAU Convention on Refugees does not provide a right to education, housing, and health care. (120) The drafters of the OAU Convention on Refugees recognized that many African countries lack the resources to even provide their own citizens with such services let alone refugees from other countries. (121)

The UNCRC also contains general and specific provisions that are relevant to the situation of URMs in South Africa. (122) First, the UNCRC’s provisions apply to all children, not just children who are citizens of the country where they are physically located. (123) The UNCRC provides that the best interests of the child must be the primary consideration “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies.” (124) Other provisions guarantee a child’s right of identity and documentation (125) and a right to “special protections and assistance by the state for any child temporarily or permanently deprived of his or her family environment.” (126)

Article 22 of the UNCRC applies specifically to refugee children, including unaccompanied minors. (127) It states that unaccompanied minors shall “receive appropriate protection and humanitarian assistance,” (128) and that unaccompanied refugee children “shall be accorded the same protections as any other child temporarily or permanently deprived of his or her family.” (129) Those rights include the fight to an adequate standard of living, (130) the fight to a free, compulsory primary education, (131) the right to be protected from economic exploitation and child labor, (132) the right to protection against sexual exploitation, (133) and the freedom from arbitrary arrest and detention. (134)

Much like the UNCRC, the ACRWC enumerates a broad spectrum of rights to which unaccompanied children are entitled without regard to citizenship, (135) and mandates that “in all actions concerning the child undertaken by any person or authority the best interests of the child shall be the primary consideration.” (136) The ACRWC entitles children to virtually the same rights as the UNCRC, namely the right to an identity, (137) the right to free, compulsory education, (138) the right to health services, (139) the right to protection against economic exploitation, (140) and the right to protection against physical and sexual abuse or exploitation. (141) Article 23 of ACRWC specifically addresses the rights of refugee children, including unaccompanied minors, and uses the same phraseology as the UNCRC; refugee children shall “receive appropriate protection and humanitarian assistance,” (142) and an unaccompanied refugee minor “shall be accorded the same protections as any other child permanently or temporarily deprived of his family environment for any reason.” (143) The ACRWC goes further than the UNCRC, however, by specifying that children may be considered refugees if they are displaced “through natural disaster, internal armed conflicts, civil strife, breakdown of economic and social order or howsoever caused.” (144) Due to the current chaos in Zimbabwe, the “breakdown of economic and social order” provision includes the Zimbabwean URMs within ACRWC’s definition of refugees entitled to specific rights. (145)

IV. DOMESTIC LEGAL FRAMEWORK FOR URMs IN SOUTH AFRICA

South Africa’s domestic legal framework provides various avenues by which Zimbabwean unaccompanied minors can achieve legal status, be protected from abuse and exploitation, and receive humanitarian assistance and services. Specifically, the South African Constitution, Immigration Act, 13 of 2002 (as amended by Act 19 of 2004), the Refugees Act, 130 of 1998 (as amended by Act 33 of 2008), and the Children’s Act, 38 of 2005 (as amended by Act 41 of 2007) all contain provisions that would allow for the protection of Zimbabwean URMs within South Africa. (146)

A. South African Constitution

After the end of apartheid in South Africa, the drafters of South Africa’s new Constitution deliberately provided for a broad range of human and civil rights. The Preamble of the South African Constitution states, “We, the people of South Africa … believe that South Africa belongs to all who live in it, united in our diversity.” (147) Moreover, Article 9 of the Constitution states, “Everyone is equal before the law and has the right to equal protection and benefit ofthe law.” (148) The word “citizen” is notably absent, thereby providing a strong argument that noncitizens, including URMs, are entitled to the protections and rights provided in the Constitution. These rights include the right to adequate housing, (149) the right to health services and social assistance, (150) the right to education, (151) and the freedom from arbitrary arrest and detention. (152) These provisions imply that the South African government will provide humanitarian services for those in need. (153)

Drafters of South Africa’s Constitution took the provisions of the UNCRC into special account, including many of the same rights set out in international law. Section 28 constitutionalized nine of the UNCRC’s most important provisions, including the mandate that the child’s best interests be of primary importance in every matter concerning the child. (154) Moreover, Sections 39(1) and 39(2) require that South African courts and legal forums to consider international law, including treaties, when interpreting the Bill of Rights. (155) B. Other Domestic Laws Impacting URMs

In addition to the South African Constitution, the Immigration Act, Refugees Act, and Children’s Act provide provisions for the protection of URMs. On first review, the Immigration Act takes a restrictive approach to addressing the issue of foreigners within the borders of South Africa by laying out its purpose of securing the country’s borders. In contrast, the Refugees Act, on its face, should guarantee URMs full legal protection under South African law, including adequate housing, education, access to health care, public relief, and assistance. The Refugees Act references the Children’s Act, which provides the procedures by which URMs can recognize the full realization of these rights. However, in practice, the Immigration Act (not the Refugees and Children’s Act) potentially provides the greatest amount of protection and relief for Zimbabwean URMs in South Africa under a provision allowing for the grant of permanent residency rights. The efficacy of this provision to alleviate the current situation in South Africa necessarily depends on the government’s full implementation of it.

1. Immigration Act

The post-apartheid government of South Africa replaced the Aliens Control Act of 1991 with the Immigration Act of 2002 in order to align the country’s immigration policies and practices with the government’s objectives of tolerance. (156) The Act became effective in 2003 and was subsequently amended in 2004. (157) Unlike the Aliens Control Act, the intended purpose of the Immigration Act of 2002 was to facilitate and encourage temporary skilled labor migration. (158) The Immigration Amendment Act of 2004 included the promising goals of preventing and countering xenophobia, promoting a “human rights based culture of enforcement,” complying with international obligations, and educating civil society “on the rights of foreigners and refugees.” (159) Nevertheless, the post-apartheid government maintains a restrictionist and anti-immigration approach to foreigners due to “the imperatives of nation-building, job protection for South Africans and rampant intolerance of outsiders, bordering on xenophobia.” (160) Although the Immigration Amendment Act focuses on controlling and securing South Africa’s borders and providing for the strict regulation of the admission to, residence in, and departure of foreign persons, the Act does provide protective provisions, which can be applied to the situation of Zimbabwean URMs. (161)

The Immigration Amendment Act of 2004 defines a “foreigner” as an individual who is not a citizen, and an “illegal foreigner” as an individual who is in South Africa in contravention of the Act, or in other words, without a legal permit. (162) The applicable regulation for asylum seekers is Section 23, which provides for an asylum transit permit. (163) This section, in theory, provides protection for up to fourteen days for those who enter the country and qualify for refugee status, but do not yet have legal documentation in South Africa. (164) Section 23 does not require, but rather allows the Director-General of the DHA to issue an asylum permit to a person who “at a port of entry claims to be an asylum seeker.” (165) If the individual does not report to one of the five RROs to apply for asylum under Section 21 of the Refugees Act by the expiration of the fourteen day asylum transit permit, then the individual is automatically classified as an “illegal foreigner” under the Immigration Act. (166)

In order to more efficiently address the number of Zimbabwean nationals entering South Africa, the Consortium for Refugees and Migrants in South Africa (“CORMSA”) along with numerous other non-governmental and humanitarian organizations, including Human Rights Watch, have called for the implementation of Section 31(2)(b) of the Immigration Act. (167) Section 31(2)(b) allows for a ministerial exemption from the standard permit requirements under the Immigration Act. (168) The exemption applies to specific groups of foreigners as designated by the Minister of Home Affairs and would provide the necessary legal basis to respond to the situation of URMs and Zimbabwean nationals in South Africa. (169) If “special circumstances” exist, then the Minister of Home Affairs may “grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period” of time. (170) Advocates argue that the unique situation and push factors for Zimbabwean unaccompanied minors should qualify as a “special circumstance.” (171) If granted permanent resident status, Zimbabwean unaccompanied minors would possess “all the rights, privileges, duties and obligations of a citizen” except for those which the Constitution or other law “explicitly ascribes to citizenship.” (172)

The Minister is given substantial discretion under the Act to implement this provision under his or her own “terms and conditions.” (173) Specifically, the Minister can:

(i) Exclude one or more identified foreigners from such categories; and

(ii) For good cause, withdraw such rights from a foreigner or a category of foreigners (174)

Additionally, the Minister has the power to “waive any prescribed requirement or form” and to “withdraw an exemption granted by him or her” under Section 31 provided that he or she can demonstrate good cause. (175)

Recognizing the potential for this Section to apply to the current situation of Zimbabweans in South Africa, DHA has indicated that once it receives funding from the Treasury it will begin issuing Section 31(2)(b) permits. (176) The permits will provide legal status for a temporary interim during the humanitarian crisis in Zimbabwe and will grant similar rights as a Section 22 asylum seeker permit, including the fight to work and study and the fight to access health care. (177) The permits, however, will not provide Zimbabweans the fight to housing or the right to access social grants. (178) Furthermore, the government will allow the permit to serve as a travel document for migration between South Africa and Zimbabwe. (179) All Zimbabwean nationals who plan on remaining in South Africa for longer than one month may apply for the permit, but URMs have yet to be granted the right to apply on their own without the appointment of a guardian. (180)

Advantages and Drawbacks: Implications of the Immigration Act

Despite advocates’ support for the implementation of Section 31(2)(b), the application of the Immigration Amendment Act may have unintended ramifications. As the purpose of the Immigration Act is to control and secure the South African borders, numerous provisions serve to restrict the rights of persons without legal documentation in South Africa. First, the Act allows for the automatic deportation of all persons who an Immigration Officer has reasonable suspicion to believe to be an illegal foreigner. (181) This appears to conflict with the Immigration Regulations of June 2005 which provide that unaccompanied minors are not subject to detention and make it illegal to deport such minors without regard to the procedural processes under the Children’s Act of 2007. (182)

The Immigration Amendment Act forbids the employment and education of persons classified as “illegal foreigners,” effectively eliminating the pull factors for Zimbabwean unaccompanied minors. (183) Moreover, the Act forbids employers to hire illegal foreigners, (184) making it an offense, punishable by a fine or imprisonment. (185) The Act also prohibits learning institutions from “knowingly” teaching “illegal foreigners.” (186) It is a crime to aid and abet “illegal foreigners,” although South Africans and NGOs can provide humanitarian assistance to undocumented persons. (187) Lastly, the Act encourages the harassment of suspected persons in the country without legal documentation because it permits police and immigration officers to request a form of identification on demand and requires individuals to produce documentation demonstrating they are legally permitted in the country. (188)

Although the Minister can issue asylum transit permits under Section 23 of the Act, this section is essentially inapplicable to unaccompanied minors as it requires children to have a legal guardian. (189) Additionally, (as discussed above in Part II) many unaccompanied minors cross and re-cross the South Africa-Zimbabwe border, and Musina security officials frequently illegally detain and deport the children. (190) Under the Immigration Amendment Act, the children should therefore be classified as “prohibited persons,” disqualifying them from obtaining a visa or a temporary or permanent residence permit or entering the country in the future. (191) The Act also grants broad power to the Director-General of the DHA to declare a group of persons “undesirable.” (192) Classification as “undesirable persons,” which includes “anyone who is or is likely to become a public charge,” also prohibits the group of persons from obtaining a visa or a temporary or permanent residence permit or entering the country. (193)

Despite these restrictive provisions, South African courts have interpreted the Act in positive light, favoring foreigners. In Lawyers for Human Rights v. Minister of Home Affairs, the Court dealt with the issue of the detainment and deportation of persons classified as “illegal foreigners” and their procedural rights under the Constitution. (194) The Court acknowledged that “the very fabric of our society and the values embodied in our Constitution could be demeaned if the freedom and dignity of illegal foreigners are violated in the process of preserving our national integrity.” (195) Moreover, the Court recognized that these persons who are not entitled to a “large variety of residence permits” under the Immigration Act are vulnerable and poor without support systems, family, friends or acquaintances in South Africa, and they also may have limited knowledge of the South African legal system, laws, policies, and values. (196)

Despite these potential unintended ramifications, the government and Minister of Home Affairs has recently taken positive steps by stating their intent to implement Section 31(2)(b). Nonetheless, the government has not yet expressed its intent to allow URMs to apply for these permits without a guardian, which substantially limits the utility of the Act and their ability to apply and have access to the full realization of their rights under South African law.

2. Refugees Act

The Refugees Act, as amended in 2008, seeks to protect children and adults who have been compelled to leave their countries of origin as a result of a well-founded fear of persecution, violence, or conflict. (197) The stated purpose of the Act is:

To give effect within the Republic of South Africa to the relevant
international legal instruments, principles and standards relating
to refugees; to provide for the reception into South Africa of
asylum seekers; to regulate application for and recognition of
refugee status; to provide for the rights and obligations flowing
from such status; and to provide for matters connected therewith.
(198)
Contrary to the aims of the Immigration Act, the Refugees Act prohibits persons to be refused entry into South Africa, expelled, extradited or returned to another country if that individual falls into one of two categories. (199) While many contend that the Refugees Act is not applicable to unaccompanied minors from Zimbabwe due to their unique reasons for entering South Africa, arguably, under Section 2 of the Refugees Act, South Africa should be prohibited from refusing entry, expelling, extraditing, or returning these minors to their country of origin. (200) The applicable provision states that an individual cannot be returned to his or her country of origin if it would result in “his or her life, physical safety or freedom [to] be threatened on account of … other events seriously disturbing public order in a part or the whole of that country.” (201) Therefore, Zimbabwean unaccompanied minors qualify for refugee status because “owing to … other events seriously disturbing public order in either a part or the whole” of Zimbabwe has “compelled [the minors] to leave [their] place of habitual residence in order to seek refuge in” South Africa. (202) However, should a URM choose to return to Zimbabwe, his or her qualification for refugee status ceases. (203)

Similar to Section 3 l(2)(b) of the Immigration Act, the Refugees Act grants the Minister to enact additional regulations “relating to a large scale influx of asylum seekers into South Africa.” (204) Therefore, the Minister has the power to create additional regulations that would more adequately protect the rights of Zimbabwean URMs.

The Refugees Act outlines general procedures in which asylum seekers can obtain refugee status and allows for a separate process by which URMs can seek asylum in South Africa. The general procedures require an application for asylum to be made in person at a Refugee Reception Office. (205) Upon application, a Refugee Reception Officer will conduct an interview of the applicant, and then the applicant will be issued with an asylum seeker’s permit under Section 22 of the Act, allowing them to reside in South Africa temporarily. (206) The role of the Refugee Reception Officer is to inspect the forms and assist in accurately filling them out. (207) The application will then be referred to a Refugee Reception Determination Officer who will hold a hearing and make a ruling on the application. (208) Under Section 22 of the Refugees Act, the Refugee Reception Determination Officer must issue a temporary permit to all asylum seekers allowing them to remain in the country legally while the decision of their Section 21 refugee application is pending. (209) The Act does not enumerate a specified time period for which the temporary permit is valid; however, it was the practice of the DHA to issue the permits for 6 months. (210) Depending on the amount of time before a decision is made on their application, the Act requires the permit to be extended “from time to time.” (211)

a. URM Rights under the Refugees Act

Under the Refugees Act, URMs are guaranteed the full legal protections including those under Chapter 2 of the Constitution: adequate housing, education, access to health care, public relief, and assistance. (212) Furthermore, they are granted identity documents, the fight to employment and education, the right to remain in the country pending finalization of their refugee application, the right to have asylum applications adjudicated in a manner that is lawful, reasonable and procedurally fair, which includes the right to appeal a negative decision on an asylum claim, and the right to freedom of movement and against unlawful arrest or detainment. (213) Specifically with respect to children, detention should be used as a last resort for the shortest possible period of time taking into consideration family unity and the best interests ofthe child. (214) Furthermore, when detained, conditions must be consistent with human dignity, and URMs should be granted legal representation in refugee proceedings. (215) The Refugees Amendment Act restricts the rights granted to an unaccompanied minor under the Refugees Act. The Act limits the protections guaranteed under the Constitution to those rights not exclusively granted to citizens and further eliminated the provision that entitled refugees to “the same basic health services and basic primary education which the inhabitants of the Republic receive from time to time.” (216) As previously stated, however, these rights are still guaranteed under the South African Bill of Rights. (217) b. Reference to the Children’s Act

In regards to unaccompanied minors, the Refugees Amendment Act of 2008 requires the government to issue a Section 22 asylum permit to an unaccompanied child “who is found under circumstances that clearly indicate that he or she is an asylum seeker and a child in need of care as contemplated in the Children’s Act.” (218) Furthermore, this child must be brought before the Children’s Court and dealt with under the provisions of the Children’s Act.

Under the Refugees Amendment Act, unaccompanied minors should be granted the same legal mechanisms of protection as national children of South Africa. In 2005, the Pretoria High Court affirmed the application of the Constitution and Child Act of 1983 to unaccompanied minors. (219) The case of Centre for Child Law and Another v. Minister of Home Affairs and Others 2005 (6) SA 50 (T) (220) further “entrenched the principle that government departments” cannot “without due process detain and deport unaccompanied foreign children from South Africa.” (221) Judge Annemarie de Vos also noted that the “lofty ideals” of South Africa’s Constitution become “hypocritical nonsense” if the government fails to make them a reality. (222) Although advocates view the importance of this case as “remov[ing] any doubt that may have existed about the fact that unaccompanied foreign children should be dealt with under the provisions of the Child Care Act,” the High Court of Pretoria only has jurisdiction over all matters within its geographical area, the Transvaal Provincial Division, and the case was decided based on the old Child Act of 1983. (223) Nonetheless, the High Court’s ruling served to reaffirm what the Refugees Amendment Act already requires in the case of unaccompanied minors. (224)

Thus, if an unaccompanied minor is found in need of care, then, similar to a South African child, the minor “must be placed in a place of safety, his or her personal circumstances investigated by a social worker and a Children’s Court inquiry opened, conducted and finalized” in accordance with the Children’s Act. (225)

Chapter 9 of the Children’s Act gives the procedures and safeguards required in dealing with a child in need of care and protection. (226) The Act outlines several circumstances in which a child may be found to be in need of care. With respect to URMs, they may qualify under a number of circumstances including: being abandoned or orphaned without visible means of support; living or working on the streets; being exploited or living in circumstances that expose them to exploitation; or living in or being exposed to circumstances that may harm their physical, mental, or social well-being. (227)

If the child is suspected to be in need of care, a social worker will be appointed to the child and the case will be referred to the Children’s Court for a determination of whether the child meets the requirements of Section 150(1). (228) In the interim before the court holds a hearing and makes a ruling, the court may order that the child:

(i) remain in temporary safe care at the place where the child is
kept; (ii) be transferred to another place in temporary safe care;
(iii) remain with the person under whose control the child is; (iv)
be put under the control of a family member or other relative of
the child; or (v) be placed in temporary safe care. (229)
If the Court determines that the child is in need of care, then the court can place the child in foster care, temporary safe care pending adoption, shared care, or a youth care centre. (230)

Under the amended provisions of the Children’s Act, alternative care is defined as a placement in foster care, child and youth care centre, or drop-in centre. (231) Children are prohibited from leaving their placement without permission and are prohibited from leaving the country. (232) This causes conflicts with the goals of Zimbabwean URMs because of their frequent migration back to Zimbabwe to visit family or bring money home (as previously discussed in Part II).

c. Advantages and Disadvantages: Implications of the Refugees Act

Despite the legal framework for providing a process by which Zimbabwean unaccompanied minors can obtain legal status within South Africa, the implementation of the Refugees Act has had numerous shortcomings which have left the children unprotected and vulnerable. Unaccompanied minors face numerous barriers to obtaining asylum including: being prevented from lodging claims, failing to have their claims fairly adjudicated, failing to have their rights respected, and continually facing arbitrary arrest, detention, and unlawful deportation.

The initial hurdle in obtaining asylum involves the lack of knowledge of South African laws and policies. Unaccompanied minors are not adequately informed of the laws and do not understand the possible ramifications of obtaining asylum, non-governmental and humanitarian organizations interpret the laws inconsistently, and the government has implemented the laws in a piecemeal and inadequate fashion. (233) In addition, under the very narrow interpretation of the Refugees Act (initially taken by the DHA and government), only a limited proportion of the children who have experienced individual political persecution were seen to qualify for asylum. (234) Considering the majority of the children from Zimbabwe come for economic reasons and educational endeavors, their applications would be immediately denied.

However, as a result of the number of Zimbabwean unaccompanied minors in the border town of Musina and pressure from NGOs, the government did temporarily allow these minors to apply for refugee status. (235) With the help of UNICEF and UNHCR, Zimbabwean minors were allowed to apply for asylum at the Showgrounds in Musina. This raised confidentiality and privacy concerns given the location and the number of asylum seekers seen each day. (236)

When applying for asylum, unaccompanied minors face the additional barrier of needing a legally appointed guardian. Although the DHA required the children to have a guardian, they failed to recognize the Department of Social Development (“DSD”) social workers as such, in contravention of the Children’s Act. (237) This resulted in unaccompanied minors “effectively being denied access to asylum and documentation.” (238) In Musina, however, SCUK had stepped in to act as the guardian for these children, and the government seemed to be accepting this procedure despite any legal provision allowing a government agency to act as the guardian. (239) This has further implications as to whether SCUK would then be legally responsible for providing for the care and protection of the child throughout the process as well as after the child has gained refugee status. (240)

Additionally, asylum seekers lack access to the RROs, delaying the process of initiating their claims. In a 2008 study conducted by the Forced Migration Studies Programme, researchers found the procedural issues at RROs and a lack of communication between applicants and the DHA were the key barriers for asylum seekers in obtaining refugee status. (241) Although all persons have the right to apply for asylum and have their application fairly considered under the Refugees Act, gaining physical access to RROs remains an impediment in the process. (242) There are groups of 5,000 per day at the RRO in Pretoria, which can only handle about 350 applications a day. (243) On average, a person would need to return to the Pretoria RRO three times, waiting approximately twenty-two days, in order to enter the actual office, and by this time their asylum seeker transit permit would have expired. (244) Once an individual gains access to an RRO, they face an indeterminate amount of time before their application will be reviewed and a decision issued. (245) Therefore, even if the minors coming from Zimbabwe are aware they can apply for refugee status and arrive at an RRO with a guardian, they are unlikely to actually obtain legal documentation.

If an unaccompanied minor files a refugee claim and obtains a temporary permit under Section 22 of the Refugees Act, the permit is only valid for six months. (246) Therefore, the child would be required to return to an RRO after five months with the same legal guardian who accompanied them in the initial application in order to renew the temporary permit. However, this entire process could be circumvented if the government implemented the procedures under the Children’s Act, necessitating that a Section 22 permit automatically be issued and the case be referred to the Children’s Court.

There is also a question as to whether refugee status would in fact improve the situation of Zimbabwean unaccompanied minors in South Africa. While the minors would be granted legal status, eliminating any “fear of deportation and allow[ing] them to settle and move freely within the country,” and facilitate their access to services, the Refugees Act disallows the minors to return to Zimbabwe, which many of them desire to do. (247) Additionally, service providers and the DSD are already underfunded and short-staffed; therefore, the minors’ rights and services may never be realized. (248) Technically, under the South African Constitution, these children should have access to health care and education, however, as discussed above this is not happening. With the government’s changing policies, the recent closure of the Showgrounds and the continual deportations, any previous effort to document the URMs has become futile and a waste of resources.

V. RECOMMENDATIONS FOR SUSTAINABLE SOLUTIONS

Based on the dire situation facing Zimbabwean URMs in South Africa, it is imperative for there to be action at the systemic and grassroots level. First, the South African government needs to address the shortfalls of the legislation meant to protect and provide for URMs. Secondly, there should be collaboration between the government, schools, and NGOs to provide increased humanitarian aid. Specifically, more services are needed to ensure that URMs have adequate shelter and their right to education is realized.

A. Legislative Solutions: Adapting Existing Legislation

There is no doubt that the South African government worked hard to amend its laws to reflect the new leadership and ideology after apartheid ended, but the present interpretation and implementation of the laws reveals how the government fell short of its goal when dealing with refugees. (249) When assessing the situation of Zimbabwean URMs, the government must balance the needs of South African citizens with those of Zimbabweans. (250) South Africa’s hesitation to act is clearly evidenced by the fact that they have yet to formally recognize Zimbabwe as a refugee-producing country. (251) There is a need for legislative reform to put structural measures in place to afford Zimbabwean URMs legal status and adequate protection.

It is critical that the existing laws are interpreted broadly to include protections and allowances for Zimbabweans, especially URMs. If South Africa recognized Zimbabwe as a refugee-producing country, it would be forced to provide extensive humanitarian aid and extend legal status to the thousands of Zimbabweans in South Africa. (252)

1. Immigration Act: Reaching its Full Potential

Problem: The government’s narrow interpretation of the Immigration Act prevents Zimbabwean URMs from taking advantage of its protections intended for economic migration.

Presently, the Immigration Act fails to meet the needs of Zimbabwean URMs because the South African government has narrowly interpreted the law and has failed to tailor its implementation to the unique situation of URMs. (253) Section 31(2)(b) gives the Minister of Home Affairs the authority to grant a category of foreigners status as a permanent resident. (254) However, the Minister has yet to grant Zimbabwean URMs permanent residency.

In April 2009, the DHA relied on Section 31(2)(b) of the Immigration Act to allow all documented Zimbabwean nationals to apply for a six or twelve month temporary residence permit that would allow them to live, work, and attend school legally in South Africa. (255) However, to date, the DHA has not issued these visas. (256)

Although there was an announced moratorium on the deportation of documented Zimbabweans that accompanied the announcement on temporary permits, there are reports that the police continue to deport Zimbabweans. (257) To further complicate matters, the DHA failed to clarify whether these temporary permits would be available to URMs. (258)

Solution: The Minister of Home Affairs must implement Section 31(2)(b) of the Immigration Act and grant Zimbabwean URMs status as permanent residents.

In order for this modified invocation of Section 31(2)(b) of the Immigration Act to effectuate a sustainable solution for URMs, they must be eligible to take advantage of these temporary permits. (259) As it stands, the temporary permits are for documented Zimbabweans, and many URMs do not possess the requisite records to qualify. (260) Because of the high risk of deportation, URMs often avoid government officials or lie to NGO personnel about their age in an effort to apply for asylum as an adult, (261) making it difficult to provide services and humanitarian aid. (262) If URMs were eligible to apply for a temporary residence visa, they would no longer have to fear deportation and would be able to benefit from the protections and fights offered by legal status in South Africa. If the government does not allow URMs to apply for permits under Section 31(2)(b), their only recourse is under the Refugees Act, which, as discussed below, presents its own set of challenges. (263)

2. Refugees Act: Suggestions to Help URMs Seek Asylum

Problem: The Refugee Act’s requirement of a guardian presents two challenges to URMs: 1) the Act does not explicitly state who can serve as a guardian and 2) the lengthy application process makes it difficult for a URM to maintain contact with a guardian.

Under Section 2 of the Refugees Act, URMs are entitled to asylum protection, and in some cases children have been granted Section 22 permits, allowing them to stay in South Africa temporarily. (264) As presently interpreted and applied, the Refugees Act does not adequately protect the majority of URMs seeking asylum. (265) The Refugees Act requires a guardian to apply for asylum on the URM’s behalf. (266) In theory, the requirement of a guardian would seek to ensure that an adult helps to protect the best interests of the URM. However, in reality, the present system creates formidable obstacles for URMs who are trying to seek asylum. The DHA has been unclear and inconsistent on the question of who qualifies to serve as a URM’s guardian. (267)

Presently, the DHA refuses to allow the five DSD social workers to serve as guardians, even though, under South African law, these individuals are charged with the safe placement and care of any child who is deemed a “child in need of care.” (268) All URMs meet the definition of a “child in need of care,” and despite the DSD’s limited resources, a URM’s social worker has more consistent contact with him or her and can assist a URM throughout the lengthy asylum application process. (269)

To date, however, South African law does not generally recognize NGO representatives as guardians. (270) In limited cases, the DHA has permitted SCUK to serve as a guardian and present their asylum papers to DHA. (271) Generally, it will take weeks or months for a child to be appointed a guardian by the court in order to be able to move forward with the asylum application process. (272) To address this issue, the court should allow NGOs such as SCUK and UNHCR to bring groups of children before the court to appoint guardianship. (273)

Secondly, even when the court does appoint a guardian, the law requires the same guardian to appear with the URM at every stage of the asylum process, which typically takes over a year. (274) Because of their vulnerability to arrest and deportation, URMs move frequently and can easily lose contact with their appointed guardian. Therefore, it is imperative that the DHA find a way to streamline the application process to ensure that URMs are not waiting in asylum limbo for months at a time.

Solution: In order to remove the barriers associated with the requirement of a guardian, the DHA must 1) clarify or eliminate the guardian requirement and 2) create a special body to review URM asylum applications to ensure a speedy process.

First, the DHA must explicitly state who can serve as a URM’s guardian. An ideal choice would be the DSD social workers because of their ongoing contact with the URMs. However, considering that there are only five social workers in the Limpopo region, the DHA needs to recognize other adults who can act in URMs’ best interests. NGOs are the obvious alternative to serve as guardians for the purpose of asylum applications. The DHA should accept the international community’s viewpoint that organizations such as UNICEF, SCUK, and other NGOs should be permitted to represent URMs. It is imperative that if the DHA allows NGOs to serve as guardians, it makes allowances for URMs to be represented by a different guardian at their interview than when the minor received their Section 22 permit. (275) In addition, if a guardian can represent more than one URM at a time, it could help expedite the process to begin the asylum application process. To simplify this issue, the DHA could abolish the guardian requirement for URMs, therefore, allowing them to seek asylum by their own application.

Secondly, the lengthy application process creates another barrier for URMs, but the DHA could make minor adjustments to remedy this issue. It is imperative that URMs’ applications for asylum receive priority in order to reach a prompt and fair decision. (276) Ideally, DHA would appoint a special committee to review and conduct interviews concerning URMs’ asylum applications because they would be more familiar with child development, trauma, and their cultural background.

In addition, the DHA could confer refugee status upon all URMs. (277) In fact, the Refugees Act broadly defines refugee as a person who may have been displaced as a result of “events seriously disturbing public disorder.” (278) However, this action seems unlikely considering the viewpoint that recognizing Zimbabweans as refugees would interfere with South Africa’s role as a mediator in the Zimbabwean conflict. (279)

Problem: URMs do not understand they will lose their refugee status if they return to Zimbabwe.

Under Section 5 of the Refugees Act, an applicant who chooses to return to a country of origin forfeits his or her refugee status. (280) Unlike other refugee populations, Zimbabweans migrated to South Africa for economic reasons. (281) Their migration was not the result of civil war or genocide. (282) Zimbabwean URMs express an interest to stay in South Africa to attend school and find work, but they also travel home regularly to visit their families and take money to them. (283) Many URMs understand that refugee status gives them the right to live in South Africa and attend school, but they do not understand that they will lose their refugee status if they return home. (284) Therefore, this provision of the Refugees Act excludes many URMs who want to maintain contact with their family or take their earnings home for their families. (285)

Solution: The DHA should provide special passes that would allow URMs to travel home to visit their families, without forfeiting their refugee status.

In response to the current situation, the DHA should institute a process whereby URMs could travel home to see their families if they had a Section 22 permit without forfeiting their refugee status. If the government allowed URMs to travel between South Africa and Zimbabwe, URMs would have a means to enter and exit the country legally. This would allow the DHA and DSD to know of their whereabouts and provide services. In light of the lack of education around this issue, it would be ideal for URMs to have the opportunity to apply for the temporary residence permit under the Immigration Act to circumvent any confusion related to their refugee status. (286)

3. Disaster Management Act: A Plan for Emergency Response

Problem: The government has failed to utilize the Disaster Management Act as a means to provide emergency services to URMs.

Ideally, the DHA would adapt the Immigration Act and Refugees Act to meet the needs of the Zimbabweans migrating for economic reasons. However, an additional piece of legislation, the Disaster Management Act, could be a valuable resource in addressing the issue of Zimbabwean migration and providing specific services for URMs. (287) The Disaster Management Act was enacted in 2002 to offer a legal framework in which the government can provide for the welfare and protection of all people in South Africa in an emergency situation. (288) Under the Act, an emergency can be declared at the municipal, provincial, or national level. (289) The Act applies to a situation where settlement “causes or threatens to cause: (1) death, injury, or disease; (2) damage to property, infrastructure or the environment; or (3) disruption of the life of a community that is of such a magnitude that exceeds the ability of those affected by the disaster to cope with its effects using only their own resources.” (290) In relation to the current situation, URMs, do not have the resources to cope with the effects of their problems associated with living in South Africa.

This framework was employed to create a national disaster management contingency plan, a Limpopo provincial plan, and a municipal level plan in the Musina area, but no disaster has ever been declared. (291) The fact that the government had the foresight to formulate a plan to address this growing problem demonstrates recognition of the problem. However, failure to utilize the plan as more URMs have entered the country illustrates another example of the government’s failure to protect the people within its borders. (292)

Solution: The South African Government needs to develop and implement a plan to address the mass migration of URMs into South Africa.

Ideally, a disaster plan would recognize the specific concerns regarding URMs. An important part of the plan would include provisions to provide shelter for the thousands of URMs who are in the country. In addition, as granted by the South African Constitution, URMs have the right to health care, social assistance, education, adequate housing, and freedom from arbitrary arrest and education. (293)

Declaration of a disaster would allow the national government more oversight as to the services offered at the provincial and municipal level; as it stands, the national government has little power to force the provinces and municipalities to take specific action. (294) If the government declared a disaster at the municipal, provincial, or national level, it would allow the government to partner with communities and NGOs to implement a plan of action regarding the issue of Zimbabwean URMs in South Africa. (295) Any action taken under the Disaster Management Act would be a temporary solution that would provide necessary services and resources to URMs, while the government puts measures in place to ensure a sustainable solution that will provide for the safety and well being of Zimbabwean URMs.

B. Improving Humanitarian Services

Reform and adaptation of existing legislation is important to helping URMs; however, implementation and improved services is another crucial component of any sustainable solution in South Africa. It is insufficient to develop a plan or program, if its implementation is ineffective and inadequate to reach the target population. Part of the present crisis in South Africa is a direct result of poor follow through on the part of government entities. (296) In 2007, the Democratic Alliance, a South African political party, recommended the establishment of a transit centre near the Zimbabwean border. (297)

There is no question that the living conditions were deplorable and unsanitary at the Showgrounds. (298) However, the government was to blame for the horrific conditions because they refused to allow permanent structures, ablution services, or security at the Showgrounds. (299) The closing of the Showgrounds symbolizes DHA’s non-responsiveness. (300) Upon closure, some Zimbabweans were given Section 23 transit permits valid for fourteen days to travel to an RRO in another part of the country, such as Polokwane or Johannesburg. (301) Undocumented Zimbabweans that remained in Musina would be subject to arrest and deportation and be unable to access any of the necessary services to start the asylum application process. (302)

In regards to URMs, the DHA and DSD abandoned their responsibility to this vulnerable population. (303) UNHCR offered transportation to some URMs, but because of the large numbers of URMs, many were left without aid or services. (304) Eliminating services in Musina will not discourage or prevent URMs from entering the country; it will only make it more difficult for them to find safety and realize any legal rights. (305) Therefore, in light of the closing of the Showgrounds, the need for effective implementation of services and programs has become even more dire.

1. Shelters and Drop-in Centers: The Need for More Places of Safety

Problem: The DSD has not committed the necessary resources to provide temporary and permanent housing for Zimbabwean URMs.

One of the major barriers to serving the increasing URM population in South Africa is the lack of places of safety and drop-in centers for minors. (306) The DSD is responsible for ensuring that if a minor is determined to be in need of care, then he or she must have a suitable, safe placement. (307) After the Showgrounds closed, the two shelters, Uniting Reformed Methodist Church Shelter and the Concerned Zimbabweans Citizens’ Shelter remained open. (308) However, between these two shelters, there is only room for approximately 170 boys. (309) Since there are approximately 600 URMs in Musina, there is a pronounced need for more shelters. (310) In addition, neither one of these shelters is licensed by the DSD because they cannot meet the licensing requirements. (311) However, without government funding, the shelters cannot make the necessary improvements to meet the government standards and ensure that the children have a clean, safe place to live. (312) While these shelters in Musina remain open to date, URMs cannot apply for asylum without a RRO. (313)

Solution: The DSD needs to commit resources to help NGOs and other organizations open shelters for Zimbabwean URMs.

In order to ensure the safety of all children, especially URMs, the DSD needs to establish many more shelters across the country. (314) One possible solution would be to create a probationary period for shelters to become licensed. (315) In this period, they would be able to receive some government funding to make the necessary improvements and also provide shelter for URMs who are living in the streets. (316) Part of a sustainable solution for URMs in South Africa is finding homes for these minors to provide housing and eliminate the possibility of exploitation.

2. Education: Increasing Accessibility

Problem: School officials refuse to let Zimbabwean URMs enroll in school because they do not have documentation or school uniforms.

One of the primary reasons Zimbabwean children migrate to South Africa is for the promise of education. Prior to the economic conflict, the education system in Zimbabwe was the best in southern Africa. (317) Under the South African Constitution, all children in South Africa are entitled to an education. However, in actuality, several barriers prevent Zimbabwean URMs from taking advantage of this right. (318) In order for a URM to attend school, school officials require paperwork showing a child’s asylum or immigration status. (319) As discussed earlier, most URMs enter South Africa illegally and face considerable challenges to attain legal status. Moreover, in the rare instances where URMs can obtain documentation, their transient lifestyle makes it nearly impossible to keep track of such documents over time. Thus, most URMs do not have the required paperwork to attend school. (320) In addition, even if a child is able to enroll in school, they may be precluded from attending school because they do not have a school uniform. (321)

In February, all of the secondary schools in Musina were full and not accepting any additional students. (322) In response to the Department of Education’s lack of action regarding URMs, UNICEF provided money to purchase school supplies for the children and planned to build additional classrooms. (323) Because of the shortage of classrooms, SCUK established places of safety for adolescents at the Showgrounds. (324) During the day, teachers taught the children, but these lessons were focused on life skills issues such as health, safety, and asylum application. (325) These actions and services were provided before the Showgrounds closed. (326) At this point, it is unknown as to the extent UNICEF and SCUK will be able to continue offering these programs.

Solution: School officials should waive the documentation and school uniform requirement in order to provide URMs with their constitutional right.

In response to the problem, improving access to education should be a priority for the South African Government. While there are limited resources to enroll children in school, the Government must partner with NGOs to provide education in ad hoc settings such as churches, tents, etc. (327) While this is not an idyllic setting, it will help accomplish the goal of providing education to all children in South Africa. Additionally, it is imperative that provincial and municipal governments abolish the paperwork requirement for children to enroll in school. Moreover, URMs should be able to forego the school uniform requirement if a child cannot afford to purchase the clothes. Making these simple adjustments and allowances will allow for more URMs to gain the education that they are legally entitled to under South African Law.

CONCLUSION

Presently, there are thousands of URMs in South Africa who fled Zimbabwe because of political and economic unrest. While they came to South Africa seeking food, work and education, the South African government has yet to respond to their needs in a meaningful manner. Moving forward, it is critical that the South African government provide ongoing protection and services to this vulnerable population. In order to affect long-term change, the government must modify the existing asylum application process to either make it easier for URMs to be appointed a guardian or abolish the guardian requirement entirely. Alternatively, the DHA could also allow URMs to apply for permits under Section 31(2)(b) of the Immigration Act. In addition, utilizing the Disaster Management Act would allow the government to declare a crisis and provide emergency relief to URMs. These changes to existing legislation would make it easier for URMs to attain legal status and ensure their protection and full realization of their rights under the law.

In addition to these legislative changes, the government’s practices must reflect an intent to protect URMs from exploitation. More social workers are needed in order to fulfill the statutory mandate of providing for children in need of care under the Children’s Act. Case management and family tracking will help URMs locate safe places to stay and connect with family members who live in South Africa. Currently, there are an insufficient number of shelters and places of safety to accommodate the increasing numbers of URMs. The DSD needs to approve new shelters on a probationary basis; therefore, the government should provide funds to shelters to make the necessary improvements and become a fully registered place of safety.

Finally, because the South African Constitution guarantees a right to education to all children in the Republic, the government must increase the number of schools and teachers to ensure all children can attend school. Considering the extenuating circumstances of URMs, schools must abolish the paperwork and uniform requirements for URMs. Until these changes are made, the country cannot create a sustainable solution for Zimbabwean URMs or future URM populations.

(1.) Interview with Bruno Geddo, United Nations High Commissioner for Refugees, in Musina, S. Afr. (Feb. 25, 2009). Non-governmental organizations have difficulty assessing the actual number of URMs living in South Africa and Musina, in particular, because URMs tend to be “invisible,” by virtue oftheir means ofentry into the country and their attempts to evade the authorities. Girls are particularly invisible since many of them take on domestic or sex labor. No shelters in the Musina-area provide services to girls, and few girls were present at the Showgrounds.

(2.) Id.

(3.) Id.; Interview with Vera Chrobok, UNICEF, in Musina, S. Afr. (Feb. 25, 2009).

(4.) Interview with Shyamol Choudhury, Emergency Response Worker, Save the Children UK, in Musina, S. Afr. (Feb. 25, 2009).

(5.) Chrobok, supra note 3.

(6.) Choudhury, supra note 4.

(7.) An unaccompanied refugee minor (“URM’) is a person under the age of eighteen who has either crossed the border alone or with another child, or who has found himself or herself living in a foreign country without an adult caregiver. Trafficked children are not synonymous with URMs, but rather are a subset of URMs. Children on the Move: Protecting Unaccompanied Migrant Children in South Africa and the Region, SAVE THE CHILDREN UK, 2007, at 8. Throughout this paper, minors from Zimbabwe who have come to South Africa will be referred to as URMs although, as discussed later, these minors arguably may not qualify as refugees under international and South African law and may be more appropriately classified as migrants.

(8.) FORCED MIGRATION STUDIES PROGRAMME, RESPONDING TO ZIMBABWEAN MIGRATION IN SOUTH AFRICA–EVALUATING OPTIONS (2007), available at http://migration.org.za/wp-content/uploads/2008/03/ zimresponses07-11-27.pdf.

(9.) Id.

(10.) Interview with Motlalepule Nathane, Social Work Doctoral Candidate, University of Witswatersrand, School of Human and Community Development: Social Work, in Johannesburg (March 4, 2009).

(11.) OneWorld.net, http://uk.oneworld.net/guides/zimbabwe/development.

(12.) Id.

(13.) Id.; Schools Close as Hordes of Teachers Resign, U.N. OFFICE FOR THE COORDINATION OF HUMANITARIAN AFFAIRS (Oct. 8, 2007), http://www.irinnews.org/Report.aspx?ReportId=74698.

(14.) Small Scale Farmers Seen as Backbone of Food Security, U.N. OFFICE FOR THE COORDINATION OF HUMANITARIAN AFFAIRS (May 15, 2008), http://www.irinnews.org/Report.aspx?ReportId=78222.

(15.) Id.

(16.) OneWorld.net, supra note 11; It Is a Sorry Sight for Zimbabwe but We Pray That Freedom Will Come’, ONEWORLD.NET (March 27, 2007), http://us.oneworld.net/node/147051.

(17.) OneWorld.net, supra note 11.

(18.) Id.

(19.) Schools Close as Hordes of Teachers Resign, supra note 13.

(20.) Id.

(21.) Id.

(22.) Id.

(23.) Id.

(24.) Children on the Move: Protecting Unaccompanied Migrant Children in South Africa and the Region, supra note 7, at 18.

(25.) OneWorld.net, supra note 11.

(26.) Illness Rises as Desperate Residents Seek Safe Water in Bulawayo, Zimbabwe, UNICEF (Nov. 14, 2007), http://www.unicef.org/infobycountry/zimbabwe_41788.html?q=printme.

(27.) Id.

(28.) In 2001, 26.1% of the country had AIDS. The decrease in the AIDS population has been attributed to both mortality and increased public health education, Id.

(29.) Id.

(30.) Id.

(31.) David A. McDonald, et al., Guess Who’s Coming to Dinner.” Migration .from Lesotho, Mozambique and Zimbabwe to South Africa, 34 INT’L MIGRATION REV. 813, 822 (2000).

(32.) Id. at 824-25.

(33.) Id. at 826.

(34.) Chrobok, supra note 3.

(35.) Interview with Temdai Simom, Resident, Concerned Zimbabwe Campbell Shelter, in Musina, S. Air. (Feb. 25, 2009).

(36.) Choudhury, supra note 4.

(37.) Interview with Forster Kwangwori, Pastor, Concerned Zimbabwe Citizens Campbell Shelter, in Musina, S. Afr. (Feb. 25, 2009).

(38.) Interview with Duncan Breen, Advocacy Officer, Consortium for Refugees and Migrants in South Africa, in Johannesburg (CoRMSA), S. Afr. (March 6, 2009).

(39.) Kwangwori, supra note 37.

(40.) Chrobok, supra note 3.

(41.) Migrants’ Needs and Vulnerabilities in the Limpopo Province, Republic of South Africa, International Organization for Migration, Nov.- Dec. 2008, at 3.

(42.) Id. at 19-20; Children on the Move: Protecting Unaccompanied Migrant Children in South Africa and the Region, supra note 1, at 15; Kwangwori, supra note 37.

(43.) Migrants’ Needs and Vulnerabilities in the Limpopo Province, Republic of South Africa, supra note 41, at 19; Children on the Move: Protecting Unaccompanied Migrant Children in South Africa and the Region, supra note 7, at 15.

(44.) Id.

(45.) Id. at 20.

(46.) Id.

(47.) Id. at 19-20.

(48.) Kwangwori, supra note 37.

(49.) Migrants’ Needs and Vulnerabilities in the Limpopo Province, Republic of South Africa, supra note 41, at 20.

(50.) Kwangwori, supra note 37. Musina is a city of 40,000, located about 17 kilometers from the Zimbabwe-South Africa border. Zosa De Sas Kropiwnicki, Child Protection Research and Policy Advisor, Save the Children UK South Africa Programme, World Congress on Sexual Exploitation (Nov. 25-28, 2008).

(51.) Zosa De Sas Kropiwnicki, supra note 50.

(52.) Id.

(53.) Kwangwori, supra note 37; Interview with Georgina Matsaung, Church Mother, Uniting Reformed Church, in Musina, S. Afr. (Feb. 25, 2009).

(54.) Kwangwori, supra note 37.

(55.) See infra note 99.

(56.) Migrants’ Needs and Vulnerabilities in the Limpopo Province, Republic of South Africa, supra note 41, at 19.

(57.) Chrobok, supra note 3.

(58.) Id.

(59.) Id.

(60.) Breen, supra note 38.

(61.) Id.

(62.) Chrobok, supra note 3.

(63.) Breen, supra note 38.

(64.) Id.

(65.) Matsaung, supra note 53.

(66.) Chrobok, supra note 3.

(67.) Id.

(68.) Kwangwori, supra note 37.

(69.) Children on the Move: Protecting Unaccompanied Migrant Children in South Africa and the Region, supra note 7, at 15-16.

(70.) Id. at 15.

(71.) Id. at 16. Only ~50% of URMs who can find work earn R1,000 (approximately $100) per month; the majority live off of less than R500 per month. Migrants’ Needs and Vulnerabilities in the Limpopo Province, Republic of South Africa, supra note 41, at 19; Children on the Move: Protecting Unaccompanied Migrant Children in South Africa and the Region, supra note 7, at 13.

(72.) Nathane, supra note 10.

(73.) Geddo, supra note 1.

(74.) Id.

(75.) S. Afr. Const. Ch. 2, [section] 29.

(76.) Matsaung, supra note 53.

(77.) ld. Children on the Move: Protecting Unaccompanied Migrant Children in South Africa and the Region, supra, note 7, at 18.

(78.) Matsaung, supra note 53.

(79.) Id.; Geddo, supra, note 1.

(80.) Nathane, supra note 10.

(81.) Children on the Move.” Protecting Unaccompanied Migrant Children in South Africa and the Region, supra note 7, at 18.

(82.) UNICEF Responds to Emergency Needs of Children and Women Affected by Xenophobic Violence in South Africa, UNICEF (May 27, 2008), http://www.unicef.org/inforbycountrymedia_44181.html.

(83.) Many Zimbabweans come with technical and language skills to qualify for coveted positions. Additionally, because they are in South Africa illegally, they are willing to work for lower wages than South African workers. Nathane, supra note 10.

(84.) Chrobok, supra note 3.

(85.) Id.

(86.) Matsaung, supra note 53.

(87.) Breen, supra note 38.

(88.) Interview with Dr. Zosa De Sas Kropiwnicki, Child Protection Research and Policy Advisor, Save the Children UK, in Cape Town, S. Afr. (March 3, 2009).

(89.) Chrobok, supra note 3; Choudhury, supra note 4.

(90.) Choudhury, supra note 4.

(91.) Breen, supra note 38.

(92.) Chrobok, supra note 3.

(93.) Id.

(94.) Choudhury, supra note 4; Chrobok, supra note 3.

(95.) Choudhury, supra note 4.

(96.) Id.

(97.) Chrobok, supra note 3

(98.) Breen, supra note 38.

(99.) Id.

(100.) Id.

(101.) Id.

(102.) Id.

(103.) Id.

(104.) Matsaung, supra note 53.

(105.) Kwangwori, supra note 37.

(106.) The Uniting Reform Church Shelter has a maximum capacity of 150. Matsaung, supra note 53. The Concerned Zimbabwe Citizens Campbell Shelter has a capacity of 20. Kwangwori, supra note 37.

(107.) Matsaung, supra note 53; Kwangwori, supra note 37.

(108.) Matsaung, supra note 53.

(109.) Geddo, supra note 1. In order to be licensed, shelters must demonstrate adequate measures of safety and inhabitability. Once the government licenses a shelter, the government provides funding to the shelter, to be used for food, bedding, hygiene, and other necessary services.

(110.) Id.

(111.) Emmanuel Opoku, Refugee Movements, in Africa and the OAU Convention on Refugees, 39 J. OF AVR. L. 79, 80 (1995). South Africa acceded to the OAU Convention in 1994. Id.

(112.) Id. at 82.

(113.) Id., at 79.

(114.) Id. at 80.

(115.) Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa art. I(2), Sept. 6-10, 1969 (emphasis added).

(116.) Id. at art. II.

(117.) Id.

(118.) Id. at art. VI.

(119.) Id. at art. V(4).

(120.) Opoku, supra note 111, at 84.

(121.) Id.

(122.) The UNCRC was adopted in 1989 and put into force in 1990. South Africa acceded to the CRC in 1996. Julia Sloth-Nielsen, Children’s Rights in the South African Courts: An Overview Since Ratification of the UN Convention on the Rights of the Child, 10 INT’L J. CHILD. RTS. 137 (2002).

(123.) U.N. Convention on the Rights ofthe Child art. 11, Nov. 20, 1989.

(124.) Id. at art. III.

(125.) Id. at art. VIII(I).

(126.) Id. at art. XX(1).

(127.) Id. at art. XXII(1).

(128.) Id.

(129.) Id. at art. XXII(2).

(130.) Id. at art. XXVII.

(131.) Id. at art. XXVIII.

(132.) Id. at art. XXXII.

(133.) Id. at art. XXXIV.

(134.) Id. at art. XXXVII.

(135.) African Charter on the Rights and Welfare ofthe Child art. III, 1990.

(136.) Id. at art. IV.

(137.) Id. at art. VI.

(138.) Id. at art. XI.

(139.) Id. at art. XIV.

(140.) Id. at art. XV.

(141.) Id. at art. XVI.

(142.) Id. at art. XXVIII(1).

(143.) Id. at art. XXVIII(2).

(144.) African Charter on the Rights and Welfare of the Child art. XXVIII(4).

(145.) Id.

(146.) Immigration Act 13 of 2002; Immigration Amendment Act 19 of 2004; Refugees Act 130 of 1998; Refugees Amendment Act 33 of 2008; Children’s Act 38 of 2005; Children’s Amendment Act 41 of 2007.

(147.) S. AVR. CONST. 1996, Preamble.

(148.) Id. at ch. 2, art. IX, [section] 1.

(149.) S. AFR. CONST. ch. 2, art. XXVI, [section] 1.

(150.) Id. at ch. 2, art. XXVII, [section] 1.

(151.) Id. at ch. 2, art. XXIX, [section] 1.

(152.) Id. at ch. 2, art. XXV. In Lawyers for Human Rights v. Minister of Home Affairs, the Constitutional Court held that when the South African Constitution limits rights to only citizens, it clearly expresses that limitation. Therefore, because the Constitution did not specifically reserve the aforementioned rights for citizens, all those living within South African borders are entitled to them. Lawyers for Human Rights and Another v Minister of Home Affairs and Another 2003 (8) BCLR 891 (CC) at 13-14 (S. Afr.), available at http://www.saflii.org/za/cases/ZACC/2004/12.html.

(153.) Breen, supra note 38.

(154.) S. AFR. CONST. ch. 2, art. XXVIII; Julia Sloth-Nielsen, supra note 122 at 139.

(155.) S. AFR. CONST. ch. 2, art. XXXIX; Sloth-Nielsen, supra, note 122. All ofthe aforementioned provisions ofthe South African Constitution are part of the South African Bill of Rights.

(156.) Aliens Control Act 96 of 1991; Immigration Act 13 of 2002.

(157.) Due to the 2002 Act being largely inconsistent with stated government goals and policies, President Thabo Mbeki directed the Ministry of Home Affairs to amend the Act to make it easier for skilled migrants to enter the country. The Immigration Amendment Act No. 19 of 2004 became effective on July 1, 2005 with the publication of the new Immigration Regulations. See Jonathan Crush & Vincent Williams, “International Migration and Development: Dynamics and Challenges in South and Southern Africa,” United Nations Expert Group Meeting on International Migration and Development, Population Division, Department of Economic and Social Affairs, United Nations Secretariat, New York, July 6-8, 2005, 24; HUMAN RIGHTS WATCH, KEEP YOUR HEAD DOWN: UNPROTECTED MIGRANTS IN SOUTH AFRICA (2007).

(158.) Crush & Williams, supra note 157. The purpose of the Aliens Control Act No. 95 of 1991 was “to provide for the control of the admission of persons to, their residence in, and their departure from, the Republic; and for matters connected therewith.” Aliens Control Act 95 of 1991.

(159.) Immigration Amendment Act 19 of 2004 Preamble.

(160.) Crush & Williams, supra note 157.

(161.) Immigration Amendment Act 19 of 2004.

(162.) Id. at s. 1.

(163.) Id. at s. 23.

(164.) Id. at s. 23(1).

(165.) ld. The Act in relevant part states that “The Director-General may issue an asylum transit permit to a person who at a port of entry claims to be an asylum seeker, which permit shall be valid for a period of 14 days only.” Id. (emphasis added).

(166.) Id. at s. 23. The five RROs are located in Pretoria, Durban, Cape Town, Port Elizabeth, and Crown Mines. The government opened up an additional RRO on July 12, 2008 in Musina to handle the large influx of Zimbabweans entering the country, but recently in March 2009 announced the closure of this office. Breen, supra note 38.

(167.) Immigration Amendment Act I9 of 2004 s. 31(2)(b); CONSORTIUM FOR REFUGEES AND MIGRANTS IN SOUTH AFRICA [hereinafter "CORMSA"], REPORT TO THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA ON THE HUMANITARIAN CRISIS IN MUSINA, SOUTH AFRICA 12 (2009); Breen, supra note 38.

(168.) Immigration Amendment Act 19 of 2004 s. 31 (2)(b).

(169.) Id.

(170.) Id.

(171.) Breen, supra note 38.

(172.) Immigration Amendment Act 19 of 2004 s. 25(1). In Lanyers for Human Rights & Another v. Minister of Home Affairs & Another, the court stressed that illegal foreigners at the port of entry are entitled to the protections of the Constitution stating “when the Constitution intends to confine rights to citizens it says so.” Lawyers for Human Rights and Another v Minister of Home A['fairs and Another, supra note 152.

(173.) Immigration Amendment Act 19 of 2004 s. 31(2).

(174.) Id. at s. 31(2)(b)(i)-(ii).

(175.) Id. at s. 31(2)(c)-(d).

(176.) Breen, supra note 38.

(177.) CONSORTIUM FOR REFUGEES AND MIGRANTS IN SOUTH AFRICA [hereinafter "CORMSA"], SECTION 31(2)(B) PERMITS FOR ZIMBABWEAN NATIONAL’S IN SOUTH AFRICA 1 (2009). The Minister has yet to decide whether to issue the permits for 6 or 12 months from the date of issue. In either instance, the Minister has the power to extend the length of validity and announce its expiry once he has determined that the situation in Zimbabwe is sufficiently stable for Zimbabweans to return. Although providing temporary legal status, the permits will not constitute amnesty. Id. at 1-3.

(178.) Id.

(179.) Id.

(180.) Id.

(181.) Immigration Amendment Act 19 of 2004 s. 34. Lawyers for Human Rights challenged the constitutionality of parts of Section 34 in the Pretoria High Court and sought confirmation in the Constitutional Court ofthe High Court’s order with respect to those provisions that the High Court ruled to be unconstitutional. The Constitutional Court established the reasonable suspicion standard. Lawyers for Human Rights and Another v Minister of Home Affairs and Another, supra note 152, at 19; HUMAN RIGHTS WATCH, supra note 157.

(182.) Children’s Amendment Act 41 of 2007; JULIA WILLAND, IMMIGRATION LAWS SOUTH AFRICA 10 (Ritztrade 2005).

(183.) Immigration Amendment Act 19 of 2004.

(184.) Id. at s. 38(1); HUMAN RIGHTS WATCH, supra note 157.

(185.) Immigration Act 13 of 2002 s. 49; Immigration Amendment Act 19 of 2004 s. 45; HUMAN RIGHTS WATCH, supra note 157.

(186.) Immigration Amendment Act 19 of 2004 s. 39.

(187.) Id. at s. 42.

(188.) Id. at s. 41.

(189.) Id. at s. 23.

(190.) Breen, supra note 38.

(191.) Immigration Amendment Act 19 of 2004 s. 29.

(192.) Id. at s. 30.

(193.) Id.

(194.) Lawyers Jot Human Rights v Minister of Home Affairs, supra note 157.

(195.) Id. at 13-14.

(196.) Id. at 14.

(197.) In reviewing the applicable provisions of the Refugees Amendment Act, it is necessary to have an understanding of the similarities and differences between a refugee, asylum seeker, and migrant. Traditionally, the international community has recognized a refugee as a “person facing political persecution or discrimination on social, racial, religious, and political grounds from his or her own government.” Siobhan Clara Neveling, Implementing the Immigration Act: A Cause of or Hindrance to Xenophobia in South Africa (June 2005) (unpublished M.A. in Politics dissertation, University of Johannesburg) (on file with author). An asylum seeker on the other hand is a refugee whose asylum claim has not yet been examined to determine whether his or her fear of persecution is genuine. Id. at 17. Lastly, migrants are persons that move across borders, in and out of a country mainly for work, and most do not want permanent residency in South Africa. Id. at 18.

(198.) Refugees Amendment Act 33 of 2008.

(199.) Id.

(200.) Interview with Ingrid Palmary, Coordinator & Senior Researcher, Forced Migration Studies Programme, University of Witswatersrand, in Pretoria, South Africa (Mar. 4, 2009).

(201.) Refugees Amendment Act 33 of 2008 s. 2(b) (emphasis added).

(202.) Id. at s. 3(b)

(203.) Id. at s. 5.

(204.) Id. at s. 38.

(205.) Id. at s. 21.

(206.) Id. at s. 21-22.

(207.) Id. at s. 21.

(208.) Id.

(209.) Id. at s. 15.

(210.) Palmary, supra note 200.

(211.) Refugees Amendment Act 33 of 2008 s. 22(a)(3). In effect, applicants can remain in South Africa until the Refugee Service Determination Officer has reached a decision in the case. Id.

(212.) S. AFR. CONST. 1996.

(213.) Child Rights Information Network, A Legal Analysis. of South Africa’s Implementation of the UN Convention on the Rights of the Child (CRIN, Working Paper, 2008), available at http://www.crin.org/resources/infoDetail.asp?ID=15447.

(214.) Id.

(215.) Id.

(216.) Refugees Act 130 of 1998 s. 27(g); Refugees Amendment Act 33 of 2008 s. 21-22.

(217.) S. AFR. CONST. 1996.

(218.) Id. at s. 21(A).

(219.) Centre for Child Law & Another v Minister of Home Affairs & Others 2005 (6) SA 50 (T) (S. Afr.), available at http://www.childlawsa.com/case_04.html.

(220.) Id.

(221.) Lawyers for Human Rights, Deportation of Foreign Unaccompanied Children from South Africa, http://www.lhr.org.za/case/ deportation-foreign-unaccompanied-children-south-africa.

(222.) Id.

(223.) Id.

(224.) The judge also found that the government has a duty to work with one another in order to enact and implement “practical arrangements for unaccompanied foreign minors in South Africa.” Id.

(225.) Id.

(226.) Children’s Act 38 of 2005.

(227.) Id. at s. 105(1).

(228.) Under Section 155, prior to the child being brought before the Children’s Court a social worker must investigate the case and within 90 days complete a report stating whether the child is in need of care. Id. at s. 155.

(229.) Id. at 155(6)(i)-(v).

(230.) Id. at s. 156(1)(e).

(231.) Children’s Amendment Act 41 of 2007 ch. 11.

(232.) Id.

(233.) Breen, supra note 38.

(234.) The Refugee Directorate stated that “The influx [in asylum seekers] observed throughout 2006 suggested that a massive population of people seeking asylum might increase in years to come although the majority are economic migrants as most of their claims are not aligned with the basic principles for asylum.” THE FORCED MIGRATION STUDIES PROGRAMME [hereinafter "FMSP"], BARRIERS TO ASYLUM: THE MARABASTAD REFUGEE RECEPTION OFFICE 17 (Darshan Vigneswaran ed., 2008).

(235.) Chrobok, supra note 3; Geddo, supra note 1.

(236.) SCUK, UNICEF, & INT’L RESCUE COMMITTEE, CHILD PROTECTION RAPID ASSESSMENT MUSINA MUNICIPALITY LIMPOPO PROVINCE, SOUTH AFRICA (2008).

(237.) Id.

(238.) Id.

(239.) Choudhury, supra note 4.

(240.) Geddo, supra note 1.

(241.) FMSP, supra note 234, at 2.

(242.) Palmary, supra note 200.

(243.) SCUK, UNICEF, & INT’L RESCUE COMMITTEE, supra note 236.

(244.) FMSP, supra note 234, at 9.

(245.) Of the 44,000 applications filed in November 2007 only 1,000 were granted and 9,000 were rejected, resulting in 34,000 applications still pending. FORCED MIGRATION STUDIES PROGRAMME, RESPONDING TO ZIMBABWEAN MIGRATION IN SOUTH AFRICA–EVALUATING OPTIONS, supra note 8. The most recent report from CORMSA indicates that over 200,000 Zimbabweans have received Section 22 Asylum permits and subsequently over 90% of their applications for asylum have been denied. CORMSA, supra note 167.

(246.) The Act does not enumerate a specified time period for which the temporary permit is valid; however, it was the practice of DHA to issue the permits for six month periods. The FMSP study found that at the RRO in Pretoria it was the practice to issue the permits for only two and a half month periods which adds to the already timely, costly, and burdensome process for the government and applicants. FMSP, supra note 234, at 15.

(247.) SCUK, UNICEF, & INT’L RESCUE COMMITTEE, supra note 236.

(248.) Id.

(249.) Tara Polzer, South African Government and Civil Society Responses to Zimbabwean Migration, 22 Southern African Migration Project Policy Brief (2008), available at http://www.queensu.ca/samp/sampresources/ samppublications/policybriefs/brief22.pdf.

(250.) FORCED MIGRATION STUDIES PROGRAMME, supra note 227, at 19.

(251.) Palmary, supra note 200.

(252.) Id.

(253.) Palmary, supra note 200.

(254.) Immigration Act 31(2)(b)

(255.) Delia Robertson, South Africa Adopts New Visa Policy for Zimbabweans, Voice of America, 2009, available at http://www.voanews.com/english/2009-04-03-voa22.cfm

(256.) CORMSA, supra note 167 at 1.

(257.) Human Rights Watch, South Africa Stop Deporting Zimbabweans available at http://www.hrw.org/en/news/2009/04/30/ south-africa-stop-deporting-zimbabweans

(258.) CORMSA, supra note 167, at 1.

(259.) Robertson, supra note 255.

(260.) Id.

(261.) Id.

(262.) Chrobok, supra note 3.

(263.) Geddo, supra note 1.

(264.) Refugees Amendment Act 33 of 2008 s. 5.

(265.) Geddo, supra note 1.

(266.) Id.

(267.) Choudhury, supra note 4.

(268.) Geddo, supra note 1.

(269.) Office of the United Nations High Commissioner for Refugees (hereinafter UNHCR), Guidelines on Policies and Procedures in Dealing with Unaccompanied Children Seeking Asylum (1997), available at http://wwww.reliefweb.int/rw/lib.nsf/db900sid/ LGEL-5S5BY7/$file/hcr-children-93.pdf?openelement.

(270.) Geddo, supra note 1.

(271.) Id.

(272.) Id.

(273.) Id.

(274.) Id.

(275.) Id.

(276.) UNHCR, supra note 269.

(277.) FMSP, supra note 234.

(278.) Refugees Amendment Act 33 of 2008, s. 35.

(279.) FMSP, supra note 234.

(280.) Refugees Amendment Act 33 of 2008 s. 5.

(281.) Refugees from countries such as Mozambique, Democratic Republic of the Congo, and Somalia came to South Africa because of armed conflict in their own countries. See FORCED MIGRATION STUDIES PROGRAMME, supra note 227.

(282.) Kwangwori, supra note 37.

(283.) Chrobok, supra note 3; Matsaung, supra note 53.

(284.) Matsaung, supra note 53; Kwangwori, supra note 37.

(285.) Refugees Amendment Act 33 of 2008 s. 5.

(286.) CORMSA, supra note 167.

(287.) Polzer, supra note 249, at 7.

(288.) Id. at 12.

(289.) See Disaster Management Act 57 of 2002

(290.) Disaster Management Act 57 of 2002, s. 1.

(291.) Polzer, supra note 249, at 13.

(292.) Nathane, supra note 10.

(293.) S. AFR. CONST. ch. 2, art. XXV.

(294.) Breen, supra note 38.

(295.) Polzer, supra note 249, at 13.

(296.) Geddo, supra note 1; Nathane, supra note 10.

(297.) FMSP, supra note 234.

(298.) The Consortium of Refugees and Migrants in South Africa (“CORMSA”) supported the closing ofthe Showgrounds, but not without a long term plan in place; Breen, supra note 38.

(299.) Emily Wellman, Is how a country treats the most vulnerable of its people not a test of its humanity? (2009), available at http://www.polity.org.za/article/ is-how-a-country-treats-the-most-vulnerable-of-its- people-not-a-test-of-its-humanity-2009-03-25

(300.) Id.

(301.) Id.

(302.) Breen, supra note 38.

(303.) Nathane, supra note 10.

(304.) Geddo, supra note 1.

(305.) Breen, supra note 38.

(306.) Chrobok, supra note 3.

(307.) Nathane, supra note 10.

(308.) Breen, supra note 38.

(309.) Kwangwori, supra note 37; Matsaung, supra note 53.

(310.) Zosa De Sas Kropiwnicki, Proposal: Emergency Assistance to Migrant Children in Musina, Limpopo, (on file with author) (2008); Chrobok, supra note 3.

(311.) Geddo, supra note 1.

(312.) Id.

(313.) Breen, supra note 38.

(314.) Geddo, supra note 1.

(315.) Id.

(316.) Id.

(317.) Kwangwori, supra note 37.

(318.) FMSP, supra note 234.

(319.) Matsaung, supra note 53.

(320.) Id.

(321.) Id.

(322.) Chrobok, supra note 3.

(323.) Id.

(324.) Choudhury, supra note 4.

(325.) Id.

(326.) Id.

(327.) Chrobok, supra note 3.

CERISE FRITSCH, ELISSA JOHNSON, AND AURELIJA JUSKA *

* Cerise Fritsch graduated from Loyola University Chicago School of Law in May 2010 with a dual degree in law and social work. Elissa Johnson is expected to graduate from Loyola University Chicago School of Law in February 2010 with a dual degree in law and social work. Aurelija Juska graduated from Loyola University Chicago School of Law in May 2010.

** Due to his age and legal status in South Africa, Moses’ name has been changed to protect his identity.

—–
Source Citation
Fritsch, Cerise, Elissa Johnson, and Aurelija Juska. “The plight of Zimbabwean unaccompanied refugee minors in South Africa: a call for comprehensive legislative action.” Denver Journal of International Law and Policy Fall 2010: 623+. Academic OneFile. Web. 7 Dec. 2011.

IN THE MOVIE District 9, an alien spaceship stalls in the skies above Johannesburg. After three months with no communication, South Africans decide to board the ship, only to find a million aliens who need rescuing. They move them to District 9, an area that’s a cross between a township and a refugee camp. But eventually the welcome for the aliens grows thin; the government forcibly relocates them to a remote area and brutally enforces their separation from the rest of the population.

District 9 evokes the worst of South Africa’s apartheid era, when people were treated as aliens in their own land. This painful mockumentary also depicts an international relief industry in which the inefficiency of the United Nations is replaced by the ruthless capability of a transnational corporation, which is also seeking the secret of the aliens’ ultrapowerful weapons technology. The film is an embarrassing indictment of how we treat the stranger.

Even more embarrassing is how South Africa has treated the real refugees who have fled across the borders it shares with Zimbabwe and other troubled neighbors. Facing rejection in many quarters and outright violence in others, the persecuted refugees have sought safety in the country’s churches. At the center of the tension between hospitality and xenophobia is Central Methodist Church in Johannesburg, a once prestigious congregation that today is home for some of the region’s poorest people.

On any given day, more than 3,000 sleep in the church. Pastor Paul Verryn ends his benediction at the nightly worship service with the words, “Go in peace, sleep well,” and the refugees scramble to every corner of the church to sleep, with the overflow crowd spreading blankets and cardboard on nearby sidewalks.

Life isn’t easy in the church. A Zimbabwean woman reports, “I was scared when I first came here, but now I have friends. Sometimes the men fight. There’s theft, so when you wash your clothes you have to watch them dry or someone will take them. And there never seems to be enough oxygen to breathe at night.”

However rough the conditions, for many it’s better than home. In recent years Zimbabwe has experienced food insecurity, cholera, political violence and rising unemployment. Despite a good harvest last year and occasional political advances, almost one-quarter of the Zimbabwean population has fled to neighboring countries, particularly South Africa. At best, the refugees face extreme difficulty in finding shelter and safety; at worst they become victims of xenophobic violence. Sixty-one Zimbabwean refugees were killed and more than 100,000 were displaced in 2008–the year Neill Blomkamp and Peter Jackson were shooting District 9 in the rambling Soweto area of Johannesburg.

Organized like a small city with its own clinic, school and elaborate internal organization, Central Methodist has had to fight to protect the refugees. In 2008, police raided the church and detained 350 people; the judge who ordered their release said that they were treated worse than South Africans were treated during apartheid. Last year the police and the Red Ants, a security company known for its brutal practices, harassed and arrested Zimbabweans sleeping in front of the High Court near the church. Local businesses sued the city and Central Methodist, complaining that the refugees were bad for business. Nearby shops erected a tall metal fence between themselves and the church, making access to the building more difficult. As the country moves closer to hosting the soccer World Cup in June, pressure is mounting to push the homeless refugees out of public view.

Violence has also been directed at those who offer the refugees hospitality. Death threats are not new to Pastor Verryn, a fervent opponent of apartheid who angered other activists when he worked to curb the thuggish excesses of Winnie Mandela, then wife of the incarcerated Nelson Mandela. His criticism of Zimbabwean president Robert Mugabe has earned him the rancor of African National Congress leaders, who remain reluctant to oppose the ruthless Mugabe because of his historic role in the region’s liberation struggles.

Verryn, who retired as bishop in November and was reappointed to Central in a supervisory role, believes the violence directed against Zimbabweans is motivated by more than simple hatred of foreigners.

“It’s not straightforward xenophobia. Of the 61 people killed [in 2008], one was white and 21 were South Africans. So this thing doesn’t always have a neat boundary around foreign nationals or migrants,” he said. “While it starts with refugees, it won’t end with them. If this is unchecked it could become a civil war.”

Verryn adds that, although apartheid officially ended 15 years ago, “this country has been schooled in prejudice, and prejudice was sanctified until 1994. Changing the words in the constitution doesn’t change the heart.”

The refugees arrive expecting that South Africa will not deny them safe harbor since it’s led by the ANC, which only recently relied on countries that opened their borders to South Africans fighting apartheid. Verryn too believes that history gives South Africa a special vocation. “We’re part of the international family again, and it’s both a privilege and a huge responsibility. When there are countries that find themselves in conflict and war, like we were, then our doors will be open and hospitality will be part of who we are as a nation.”

Yet that history means little to those who see the refugees as competitors for postapartheid South Africa’s limited spoils. Like migrants in many lands, the Zimbabweans–and a smattering from Mozambique, Malawi and the Democratic Republic of the Congo–make handy scapegoats for domestic problems.

Verryn believes South Africa’s political leaders have stoked the violence.

“We’ve got ambivalence from the top, a police force that rigorously hunts down foreign nationals, and a popular mindset that the migrants shouldn’t be here. Some even use the term ‘illegal alien’ for them. If you really want to set up a problem, call people that,” Verryn said. “It all makes a fairly good recipe for xenophobia. People say, ‘They’re stealing our jobs, they smell, they’re criminals.’ But it doesn’t stop there, and the violent attacks could resume at any time.”

Verryn says the country’s economic policies are part of the problem. “The government wants to fence off certain opportunities for South Africans only. But if people are being forced out of the labor market, what are their options? People have to eat. If ultimately we make the stakes so high for them, aren’t we in some ways beginning to criminalize them?”

Women refugees face particular challenges, says Kim Alexander, a former associate pastor at Central.

“Women face abuse at all levels, even from their own community at times. It’s difficult for them to get work, as many women come with few skills,” she said. “Many will hand out pamphlets at stoplights, earning 20 Rand [less than $3] a day, and then at the end of day they aren’t paid. Because they don’t have money and they need to eat, it makes them more vulnerable to sexual exploitation within the building, trading sex for food or money.”

Running a crowded building is a management nightmare. Last year Verryn faced accusations that he hadn’t done enough to stop abuse of children within the facility. The congregation trained a committee of ten refugees–eight women and two men–to investigate complaints and take action to stop abuse. And Verryn moved several girls to a church dormitory in Soweto, at the same time helping to initiate court proceedings to have a legal guardian appointed for the children.

Ministers of the Methodist Church of Southern Africa aren’t allowed to initiate legal action on their own, nor can they speak to the media–though Verryn has not been shy about doing just that. In January, the pastor was suspended by church leaders, who refused to detail the charges publicly, leading to speculation of deeper problems. Verryn protested both the charges and the secrecy around them, and both sides agreed to arbitration. Although still officially suspended, the feisty pastor nonetheless continues his work at Central, albeit quietly, generally refusing to speak to journalists.

Despite the challenges from inside and outside the church, in an interview last year Verryn said the congregation’s ministry presents a unique opportunity.

“Almost every problem you can think of domiciles itself here. There’s a huge amount of conflict resolution that has to go on all the time. But it’s also quite exhilarating, in that it gives you an opportunity to see the very best of people as new life begins for them. So much good rises from the ashes of this place that it’s a huge privilege to be here. It’s a wonderful opportunity to tell the Good News,” he said.

Verryn would like Central to be more than a shelter, and he believes it could make a long-term contribution to social change in a region where there’s a lack of good news. When it was too dangerous for Zimbabwean children to attend public schools during the antiforeigner violence of 2008, he and the refugees started the Albert Street School. The school now has some 600 students, about one-fifth of whom arrived in South Africa unaccompanied by any family.

Principal Alpha Zhou, a Zimbabwean teacher turned refugee, says the school has a mission beyond just keeping the children safe.

“Our children in Africa are suffering and will suffer for a long time. We’re destroying the generation that’s supposed to build Africa. We opened the school to change the lives of children so that tomorrow we’ll have better leaders who will run their countries properly.”

Paul Jeffrey is a United Methodist missionary and senior correspondent for Response, the magazine of United Methodist Women. He lives in Oregon.

Jeffrey, Paul
—–
Source Citation
Jeffrey, Paul. “Room for refugees? A Johannesburg church opens its doors.” The Christian Century 127.8 (2010): 22+. Academic OneFile. Web. 7 Dec. 2011.

MUSINA, South Africa — They bear the look of street urchins, their eyes on the prowl for useful scraps of garbage and their bodies covered in clothes no cleaner than a mechanic’s rags.

Near midnight, these Zimbabwean children can be found sleeping outside almost anywhere in this border city. A 12-year-old girl named No Matter Hungwe, hunched beneath the reassuring exterior light of the post office, said it was hunger that had pushed her across the border alone.

Her father is dead, and she wanted to help her mother and younger brothers by earning what she could here in South Africa — within certain limits, anyway. ”Some men — men with cars — want to sleep with me,” she said, considering the upside against the down. ”They have offered me 100 rand,” about $10.

With their nation in a prolonged sequence of crises, more unaccompanied children and women than ever are joining the rush of desperate Zimbabweans illegally crossing the frontier at the Limpopo River, according to the police, local officials and aid workers.

What they are escaping is a broken country where half the people are going hungry, most schools and hospitals are closed or dysfunctional and a cholera epidemic has taken a toll in the thousands. Yet they are arriving in a place where they are unwelcome and are resented as rivals for jobs. Last year, Zimbabweans were part of the quarry in a spate of mob attacks against foreigners.

For those in the know, crossing the border can be a simple chore, a bribe paid on one side and a second bribe on the other. But for the uninitiated and the destitute, the journey is as uncertain as the undercurrents of the Limpopo and the appetites of the crocodiles.

Where is it best to enter the river? Where are the holes in the barbed fences beyond? Where do the soldiers patrol? Perhaps the greatest risk is the gumagumas — the swindlers, thieves and rapists who stalk the vulnerable as they wander in the bush.

Williad Fire, 16, who arrived here on Jan. 4, is one of nine boys who came from Murimuka, a town in a mining region of central Zimbabwe. His story is a fairly typical one of serial catastrophe. He was living with an uncle after his parents died, but then the uncle died, too, stricken in November with an illness that Williad described with a mystified shrug: ”He was vomiting blood.”

The boy was hungry, and scrounging in South Africa seemed to hold more promise than scrounging at home. To get train fare south, he sold his most valuable possession, a secondhand pair of Puma sneakers two sizes too big. He and eight friends then did odd jobs in Beitbridge, on the Zimbabwean side of the border, until they had saved about $35.

From there, Williad’s story takes another dismal turn. When the boys neared the river, they were confronted by the gumagumas, who pretended to be helpful, then pounced. ”They hit me in the forehead with a rock,” Williad said. ”I was carrying everyone’s money, so I was the one to beat.”

But they continued across the river, and here in Musina, the boys from Murimuka slept in the streets for a while, as many other youngsters do. Then they staked claim to a patch of sandy soil under the punishing sun at the Showgrounds, an open athletic field that is the designated repository for refugees. The population hovers around 2,000. Each day new people arrive, and each day familiar faces depart.

The South African government issues temporary asylum papers to about 250 of these refugees a day, entitling them to six months without worry of deportation. Unaccompanied minors are ineligible for this status, though, leaving them in an odd limbo, with no specified place in the bureaucratic shuffle.

Williad and his friends share a single blanket. They cook spaghetti over a fire fed with twigs and cardboard. Cans and buckets fetched from the trash are used as pots. Plastic bottles sliced open along one side serve as bowls.

Honest Mapiriyawo, a 13-year-old orphan, is the boys’ best beggar. Children compete at the supermarkets to carry groceries for shoppers in exchange for tips. Honest is tiny and winsome. People are drawn to his proper diction. ”May I assist you?” is the phrasing he prefers.

Another of the Murimuka boys is Diallo Butau, 15. He said his father is dead and his mother had tuberculosis. He bears the guilt of abandoning her. ”If I could get some medicine, some pills, I would go back and cure her,” he said.

Georgina Matsaung runs a shelter for children at the Uniting Reformed Church. ”You’ll sometimes find boys sleeping in ditches and under bridges, but you won’t find the girls,” she said with a regretful shake of her head. ”The girls get quickly taken by men who turn them into women.”

The Musina area has a population of about 57,000, with an additional 15,000 foreigners, overwhelmingly Zimbabweans, at any given time, according to Abram Luruli, the municipal manager. ”Many children are scattered in the street,” he admitted, though it is plain enough for anyone to see. At night, they can be found sleeping beneath sheets of plastic along the roadside, a few of them with their minds meandering from ethers inhaled from a bottle of glue.

While the stories of the refugee children are troubling — with penury in Zimbabwe being exchanged for penury here — many of the more horrifying stories in the city involve the rapes of helpless women.

Leticia Shindi, a 39-year-old widow from the village of Madamombe, said she left Zimbabwe on Jan. 4, hoping to get piecework so she could send money back to her two daughters. She had never waded across a river before, and as she eyed the muddy flow, she seized up with fear.

Two young men were preparing to lead others across, and she gratefully joined them. The guides used poles to judge the hidden depths while the rest cautiously held hands as they moved through the shoulder-deep water.

Once across, the two men robbed them all. Because Ms. Shindi had insufficient money, payment was exacted otherwise. ”Take off your underpants,” she recalled one gumaguma saying. ”Today I am going to be your husband.”

Chengetai Mapfuri, 29, left the outskirts of Harare, Zimbabwe’s capital, just after Christmas, carrying her 20-month-old son, Willington. Two knife-wielding gumagumas who raped her took turns, she said, one holding the toddler while the other held her.

Aldah Mawuka, 17, is also from the Harare suburbs. She said the first gumagumas she encountered on Jan. 7 only robbed her; it was the second ones who demanded she pull down her jeans. The rapist was very direct and impatient, she recalled: ”If you don’t do it, I’ll kill you.”

South Africa’s national police force is exasperated by the crimes. Capt. Sydney Ringane, seated in his office in Musina, said the surrounding wooded terrain made it too hard to catch the gumagumas. Anyway, most victims do not file complaints. After all, they are here illegally, unless remaining in the Showgrounds. ”Last week, I had 1,500 ready for deportation,” he said.

The captain stood up, walking over to a computer screen. ”We keep photos of the refugees killed near the border.”

He punched the keyboard and clicked with the mouse. ”This woman was raped before she was killed,” he said. ”She wasn’t wearing underpants. She was identified for us by some street kids.”

Mention of the children seemed to feed his exasperation. ”Street kids, more all the time,” he said. ”They come in as if they are playing in a game.”

He asked, ”What do we do about these kids?”

Mohammed Rage lived here among the dusty tents outside the nation’s capital for one month. At 48, the Somali shopkeeper was considered an elder among hundreds of immigrants who sought refuge in this government-run encampment after brutal attacks against foreigners spread through South Africa’s slums in the spring.

This week, a photo of Rage’s dead body, splayed over splotches of blood on a white mortuary table, was offered by those he left behind as proof that they could not leave, even though the camp was being shut. He had returned to his looted shop in June, they said, and got shot in the chest.

“I am afraid that everywhere I go, I will be killed,” said Rage’s son, Abdullah Mohammed Rage, 24, clutching the photo as government-deployed security workers used crowbars to tear down nearby tents made of blankets and wooden planks. “In South Africa, there is no place safe.”

Five months have passed since more than 60 people were killed in anti-foreigner beatings and burnings that shocked a nation that touts diversity. Thousands of immigrants moved to about 10 refugee-style camps that seemed incongruous in Africa’s most developed country. In recent weeks, the government has torn most down, saying the neighborhoods are safe again.

But aid workers and immigrants who fled to this spot north of Pretoria — mostly Somalis, Ethiopians and Congolese — disagree. They say the camps’ endurance and continued reports of violence underscore how little the South African government has done to tackle a long-standing hostility toward immigrants that reached a tipping point in the spring.

Although government leaders condemned the attacks and quickly set up camps, they have mostly left it to civic groups to distribute aid and grants to help the displaced get back on their feet. Some critics say the immigrants’ plight has fallen to the wayside as the ruling African National Congress struggles with internal turmoil and courts voters in the townships that lashed out at immigrants.

Others say government leaders simply seem paralyzed by what a spokesman for the U.N. High Commissioner for Refugees, which lent 2,000 tents, called a “sense of shame.”

“There hasn’t been a comprehensive investigation or commission of inquiry into the violence. . . . It appears that very little has changed,” said Duncan Breen, an advocacy officer for the Consortium for Refugees and Migrants in South Africa, which went to court to try to keep the camps open until the government made a plan to reintegrate the displaced. “That actually leads all of us to worry that violence could break out again.”

Simon Zwane, a spokesman for the provincial government, which ran six camps near Johannesburg and Pretoria that are now shuttered, said the government has held seminars to “encourage tolerance” in some communities.

Intermittent violence has continued against foreigners, particularly Somalis, many of whom are legal refugees and run shops in townships. On Oct. 3, a Somali woman and her three children were stabbed and bludgeoned to death in Eastern Cape province, prompting the United Nations’ top human rights official, Navanethem Pillay, to condemn “a dangerous pattern of targeted attacks on foreigners.”

As the Akasia camp was dismantled on a recent afternoon, the dirt lot began to resemble a junkyard, with mattresses and piles of clothing. The hundreds of immigrants there said they were not budging.

“People here have seen the worst of South Africa,” said a Congolese woman with a baby strapped to her back. “It is better they kill us here than we go back and they kill us.”

Despite its wrenching poverty, South Africa is among Africa’s richest countries and a magnet for immigrants, who number 3 million to 5 million. They have come as mineworkers, refugees from conflicts and, in the case of millions of Zimbabweans, illegal immigrants escaping economic ruin at home.

Most of those killed in May were Zimbabwean and Mozambican, but by some accounts as many as one-third were South African.

The attacks prompted soul-searching in a nation whose liberation leaders were given refuge throughout Africa during the apartheid era. Many South Africans criticized the government as failing to help the downtrodden, who view immigrants as competition for jobs. Others saw the violence as a symbol of ousted president Thabo Mbeki’s failed strategy with Zimbabwe’s president, Robert Mugabe, which they say led to an influx of immigrants from that country.

Some, including Mbeki and ANC leader Jacob Zuma, said the brutality was not xenophobic — as it has been widely labeled — but rather, as Zuma put it, “thuggery and criminality.”

But surveys over the past decade by the Southern African Migration Project have found that hostility toward outsiders is higher in South Africa than in most nations where comparable data exist. In a recent report, the project said warnings by researchers and elected officials about the potential for violence were mostly ignored, leading to a “perfect xenophobic storm” this year.

In a May report, a parliamentary task force called for a revival of a defunct anti-xenophobia campaign and suggested a theme “along the lines of ‘We are all Africans.’ ” The team said last month that it would evaluate refugee reintegration. Parliamentary spokesmen did not respond to two requests for information about the outcome of the evaluation.

This week, after the closure of most of the camps, the Department of Home Affairs held a meeting with civic and government groups to discuss xenophobia, an issue the department has tried to tackle before.

“Clearly, it hasn’t been enough. Maybe it hasn’t communicated the right messages,” said Siobhan McCarthy, a spokeswoman for the agency.

Critics say the response has been spotty at best.

“It’s not high on the agenda of issues that I see the leadership dealing with,” said Shadrack Gutto, director of the center for African renaissance studies at the University of South Africa. “And it ought to be very high on the agenda.”

Most of the 38,000 immigrants displaced during the attacks have returned to their countries or to South African communities, said UNHCR spokesman Yusuf Hassan. As of Oct. 3, more than 4,300 had accepted U.N. grants of $100 to $300, a sum that some refugees say is too little to rent a new home.

In interviews, many of the Akasia camp residents said the United Nations should resettle them in a third country. Hassan said that could happen only on a case-by-case basis, and he noted that more than 100,000 legal refugees and asylum seekers live in South Africa without major problems.

That is of little comfort to the immigrants who stayed at the campground this week after the tents were ripped down and the water supply cut off.

As the sun lowered, they gathered under a tree and passed around newspaper clippings.

” ‘More Somalis killed,’ “said Joel Naluwairo, 26, of Uganda, reading headlines aloud. ” ‘Warning letters given. Foreigners told to close up shop.’ This is eighth of September. Western Cape.”

Everyone had stories of being attacked, held up and scorned over the years. Everyone had tales of fleeing in terror from knife-wielding mobs in May.

“They call us Absa Bank, because we keep the money” at home, said Abdullah Abbas, 32, the designated leader of the camp’s Somalis, referring to a South African bank. He said he and his partners lost a store worth $40,000 to looters. “It is as if all the people are one voice. One person, he shoots you. All the other people laugh at you.”

But the suspicion goes both ways. Yilmashwa Taye, the Ethiopians’ leader, said he employed five South Africans at his shop outside Johannesburg. But he never kept them on the payroll for long.

“These guys, they don’t want to work. They are planning how they can arrive to steal,” said Taye, 38, adding that he fled political persecution in his homeland six years ago. “I don’t trust them.”

Rage prayed often and offered words of hope to others at the camp, Abbas said. But Rage became stressed by the thought of his hungry family in Somalia. He decided he needed to get back to work in the township, Abbas said.

Abbas had no proof that Rage was killed because he was a foreigner. But he quoted witnesses saying the shooter asked for no money. The people around reportedly just shouted: “Leave this country.”

JOHANNESBURG — In the wake of a convulsion of violence against foreigners, international relief officials said Wednesday that South African authorities were planning to establish refugee camps to house tens of thousands of displaced people who had fled their homes in impoverished squatter areas, but the government contended that no decision had been made yet.

The cabinet’s decision on whether to set up the camps will be announced Thursday, according to a statement issued by the government.

Yusuf Hassan, a spokesman for the United Nations High Commissioner for Refugees, said the authorities had asked the agency to help ensure that the camps — to be called ”temporary places of safety” — met international standards.

Initially, the camps would house 11,000 people who are now sheltering near police stations scattered around South Africa. The refugee agency, Mr. Hassan said in a telephone interview, would provide some 2,000 tents and an expert to find sites close to urban amenities.

Muriel Cornelis, a representative in Johannesburg for Doctors Without Borders, said the authorities had promised a decision by Wednesday night on the proposal, which could eventually provide shelter for as many as 70,000 people.

The idea of refugee camps in one of Africa’s wealthiest nations has come as a surprise to some relief experts and to middle-class South Africans accustomed to seeing their land in a different light from poorer countries farther north on the continent.

Siobhan McCarthy, a government spokeswoman, told South African news agencies that the government was not interested in ”setting up refugee camps” that could exist for a long time, but rather was considering ”a solution for the short term.”

Still, the government’s plan has met with resistance from international agencies contending that the tens of thousands of homeless people from Zimbabwe, Mozambique and elsewhere need immediate help rather than waiting for camps to be built.

Some aid officials maintain that South Africa does not have the expertise to run such facilities. One relief official, who spoke in return for anonymity because he did not wish to jeopardize cooperation with the government, said international agencies feared that the camps could become rife with conflicts and sexual violence.

Many of the refugees are in temporary shelters where Ms. Cornelis said conditions were worsening with the spread of diarrhea and chest infections. ”We have advocated for an immediate response rather than a delayed one,” she said in a telephone interview, arguing that the displaced foreigners needed improved sanitation, showers and clean drinking water.

More than 50 people were killed in the attacks, which began near Johannesburg earlier this month and spread to other places, including Cape Town. The authorities in neighboring Mozambique declared a state of emergency to cope with thousands of their citizens returning unexpectedly.

Even during the apartheid era, South Africa’s mineral wealth attracted thousands of migrants from black-ruled countries like Malawi and Mozambique to work in the mines. But, since the dawn of majority rule in the 1990s, the country has been a magnet for foreigners from as far as Somalia, drawn to South Africa as their own countries descend into chaos.

In addition, as many as three million Zimbabweans have fled their country to look for work in South Africa, provoking the resentment of some South Africans who see the outsiders as threats to their own jobs and well-being.

South Africa accounts for a third of sub-Saharan Africa’s economic output and is home to an estimated five million foreigners. But jobs are scarce, housing is often poor and prices are rising, sharpening the contest between South Africa’s own poor and the poverty-stricken immigrants.

—
Celia W. Dugger reported from Johannesburg, and Alan Cowell from Paris.

Viewing the horrific images out of Johannesburg last week, one could be forgiven for mistaking them for the harrowing photographs that graced newspaper front pages in the 1980s. Those were the years of “Total Onslaught,” when the African National Congress (ANC) encouraged residents of black townships to fight white rule. Blacks suspected of collaborating with the apartheid regime were rounded up, tried before sham “people’s courts,” and murdered by mobs.

The bloodshed last week was not aimed at the South African government or its suspected collaborators. Instead, it was directed at the country’s most powerless and vulnerable hordes: undocumented refugees.

Thugs wielding machetes, axes and hammers prowled the streets, asking potential foreigners questions to determine their language and dialect. Homes and shops were looted. Women were raped. Even the horrific, apartheid-era practice of “necklacing” — in which ANC sympathizers placed tires doused in gasoline around the necks of suspected collaborators and set them aflame — returned.

Over 40 people have been killed and thousands have been forced out of their homes. Unlike apartheid-era unrest, when blacks were safely isolated in townships far removed from economic hubs, last week’s turbulence spread to Johannesburg’s central business district. The violence seriously undermines the government’s claim that it is capable of hosting the World Cup in 2010.

South Africa, the most developed country on the continent, has attracted a wave of economic and political refugees since the fall of apartheid in 1994. Most of them (as many as three million) hail from neighboring Zimbabwe. Since the initiation of President Robert Mugabe’s seizure of white-owned farms in 2000, this country has been marked by deepening political repression, outrageously high inflation, and widespread hunger.

Thousands of Zimbabweans cross South Africa’s northern border on a weekly basis, and that’s on the increase since the Zimbabwean regime’s violent response to losing presidential and parliamentary elections held on March 29. With South Africa’s official unemployment rate at 22% (in reality, possibly as high as 40%), aggression against foreigners accused of taking precious jobs was only a matter of time.

Ultimately the individuals who perpetrate acts of violence must be held responsible. Yet it’s important to remember that the influx of poor Zimbabweans would never have become a phenomenon had Mr. Mugabe not driven his country into the ground. His terror has been aided and abetted by South African President Thabo Mbeki, whose government has certified a series of stolen elections, hesitates to criticize Mugabe’s human-rights violations, and blocks international involvement in Zimbabwe’s ever-deepening crisis.

Two years ago, an economist in Johannesburg told me that Zimbabwe was “South Africa’s Mexico,” and that the massive number of immigrants flooding into his country should be viewed as a positive economic benefit. This comparison is specious.

Zimbabweans fleeing to South Africa do not intend to make a future there, as Mexican immigrants crossing the Rio Grande hope to do in the U.S. They come to South Africa because they cannot survive in Zimbabwe, a country where the life expectancy is in the mid-30s. If the government doesn’t kill you, AIDS or starvation will.

Furthermore, the U.S. would not allow Mexico to degenerate into the massive political and economic hellhole that Zimbabwe has become. At the very least, we would impose sanctions. But more likely, Washington would support antigovernment contras or initiate regime change, as it did in Central America during the Cold War.

For years, those who defended Mr. Mbeki’s approach did so on the grounds that the situation in Zimbabwe did not affect regional stability. They claimed that Zimbabwe’s turmoil was something that its own government and opposition should resolve, without the pressure of outside intervention.

The disastrous effects of that hands-off policy are now clear.

The most disgraceful aspect of this whole situation is the fact that many of the ANC’s head honchos spent the apartheid years exiled in African countries. Fleeing certain imprisonment in their native land, they found gracious hosts elsewhere — including Zimbabwe.

—

Mr. Kirchick is an assistant editor of the New Republic.

Violence against black immigrants in South Africa

Xenophobic violence against black foreigners in Johannesburg’s townships has prompted calls for a new government policy on immigration

SITTING on a pavement outside the police station in Alexandra, an overcrowded Johannesburg township a stone’s throw from the city’s main business district, 21-year-old Talent Dube is at a loss for words. She left her native Zimbabwe two years ago, because there was no money to pay for her school fees and no job to help support her parents and younger brother. Last week an armed mob chased her and two relations from the shack they shared. Their attackers took everything they owned: telephones, television, clothes, even their single mattress.

Talent ran for her life with only the clothes on her back. A towel wrapped around her shoulders to fend off the cold, she is now camping at the police station, along with a thousand others, mainly from Zimbabwe, Mozambique and Malawi. Some have been living in South Africa for years. But angry residents, aggrieved by pervasive unemployment, poverty and now soaring food and fuel prices, are accusing them of stealing jobs and houses—and of being criminals.

The ferocious attacks that started in Alexandra on May 11th spread to townships and random settlements around Johannesburg and even reached parts of the city proper. A provincial official reckons about 20,000 people have been displaced. In poor settlements east of the city, foreigners were burnt alive, as some residents watched and laughed. At least 42 people have been killed so far.

The violence has not been aimed at immigrants alone: South Africans from smaller ethnic groups, such as Vendas and Shangaans, have also been targeted. The influx of terrified victims has turned police stations into refugee camps. Some people who had fled poverty or repression at home want to go back. The police have struggled to contain the violence, firing rubber bullets at mobs waving machetes, guns and bars, and have arrested hundreds of suspects. President Thabo Mbeki has called on the army to help.

Businesses and ordinary folk are trying to help victims. Bigwigs from the ruling African National Congress have visited the trouble spots. But the authorities appear at a loss to explain the mayhem. The government has set up a panel to look into what may have sparked it and what to do. Xenophobic incidents are not new but the scale of anti-foreign violence is unprecedented.

Broader questions about how South Africa should handle immigration have been raised. South African mines and farms have long employed workers from Lesotho, Malawi or Zimbabwe. Thousands of refugees from the war in Mozambique arrived in the 1980s. But the flow has swelled since the 1990s, when apartheid ended and South Africa opened up to the world. Thanks to Zimbabwe’s chaos, hundreds of thousands, probably several million, have fled the misery and repression north of the Limpopo river. A few people from all over Africa have also been given political asylum.

Since most immigrants are illegal, numbers are hard to nail down. The South African Institute of Race Relations, a think-tank, reckons there are 3m-5m. (The indigenous population was reckoned last year to be 48m, of whom 38m were black, the rest being of white, Indian and mixed-race descent.) Without work permits and trapped in illegality, most immigrants live on the fringe of the economy. Many Zimbabwean teachers or doctors work as gardeners or waiters. Other immigrants have unlicensed corner shops or hawk their wares on the streets: their modest success fuels jealousy. The FinMark Trust, which helps arrange financial services for poor people , reckons that up to 15% of small, mostly unlicensed businesses in Gauteng province are run by foreigners.

According to the Forced Migration Studies Programme at Witwatersrand University in Johannesburg, the government has yet to take immigration seriously enough. Its priority has been to deport the few illegals that get caught. But borders are long, porous and badly policed, so this is futile. It has also led to many human-rights abuses. Foreigners say that the police often harass them and extort bribes.

Calls have grown louder for a new policy to legalise foreigners’ status and welcome their badly-needed skills. The education ministry decided last year to hire foreign teachers to plug a severe shortfall in state schools but those already in the country struggle with red tape to qualify. Vincent William of the Southern African Migration Project, a regional initiative, says southern Africa should become a single labour market along the lines of the European Union. “But it’s going to take us ten or 20 years to get there,” he says.

Gangs of men armed with guns, clubs and threats have chased thousands of Zimbabweans and other foreigners from their homes in this nation’s poor townships over the past week, leaving at least 12 people dead and scores injured, according to news reports.

The nighttime rampages have turned police stations in several townships in the Johannesburg area into virtual refugee camps, with makeshift tents, portable toilets and clusters of terrified people, many displaying wounds from the attacks.

Many have vowed never to return to their looted houses but have few options when their own nations are experiencing a dearth of economic opportunities, or, in the case of Zimbabwe, a devastating political crisis and inflation that has topped 165,000 percent.

“I’m not going back to Zimbabwe,” said Patricia Sibanda, 38, a widow who, along with her 15-year-old daughter, was among more than 1,000 victims camped out in the police station in the township of Alexandra, where the attacks began May 11. “There’s no food in Zimbabwe. There’s no everything.”

The attacks have embarrassed many South Africans, including prominent members of the ruling African National Congress, whose own leadership depended on the hospitality of its neighbors during decades in exile before the fall of apartheid in 1994. An estimated 3 million people, most from Zimbabwe, have come to South Africa since then.

Zimbabwean Tom Matayo, 34, who was chased from his home in Alexandra, said he had heard of South Africans living in his native region, Matabeleland, while fighting apartheid. He fled his home Monday night as the attacks spread, leaving behind his South African wife, their three children and his tuberculosis medicine.

“Now we are here, they chase us away. It’s unfair,” said Matayo, a security guard who has lived in Alexandra for 10 years. “They don’t remember because they are living all right.”

Fourteen years after the end of apartheid, many townships remain deeply impoverished with few jobs, tiny metal shacks for homes and high rates of AIDS and other diseases. South African residents complain bitterly that foreigners have moved into many of the government-built concrete homes in recent years and are undermining wages, contributing to high crime rates and establishing relationships with South African women.

The townships also have been swollen by millions of rural South Africans coming in search of opportunity closer to economically vibrant urban centers. In several instances, according to news reports, South Africans from relatively small ethnic groups have been attacked along with foreigners.

The violence began in Alexandra, which has an estimated 500,000 people crammed into a three-square-mile cityscape dominated by small homes and shacks. It has since spread to other townships in Johannesburg and near Cape Town. An official told the Associated Press that 12 people have died in the violence and that 200 have been arrested.

Despite official condemnations — the Alexandra police station has received a succession of high-profile visits by political, religious and government leaders — the effort to drive out foreigners appears to enjoy widespread support among township residents.

South African house builder Albert Ramaite, 44, who supports a wife and five children, said he has not had steady work in more than three years. While he still holds out for a daily wage of about $20, many Zimbabweans will work for less than half that amount.

“Every day, I wake up and say, what am I going to do? What am I going to eat?” said Ramaite, who had skipped both breakfast and lunch that day.

Ramaite criticized the violence but said the foreigners must leave Alexandra. He suggested that the government build new townships to accommodate those who do not want to return to their home countries.

Formally relocating those chased from their homes would not necessarily ease the sense of frustration felt by many South Africans as they wait years for the arrival of modern housing and other amenities they expected soon after the end of apartheid.

“Once you give them houses or whatever, we’ll be creating a big war,” said Thomas Sithole, a member of the Alexandra Community Police Forum, a residents’ group. “The question will be, ‘Why are you giving them houses?’ ”

Yet many immigrants say they have lived peacefully here for many years.

Sibonisiwe Moyo, 23, said she came to Alexandra from Zimbabwe in 2004 and was living happily with her husband and their 4-month-old son.

They had few problems until a mob came to their home Sunday night. When her husband went outside to investigate while carrying their son, the boy was struck with a rock hurled by an attacker. Moyo’s husband suffered wounds on his neck and abdomen.

She recalled the men shouting, “Zimbabweans must go back home!”

The gang looted their home, taking a refrigerator, radio, DVD player and clothes. Clad in the same blouse and dark skirt that she was wearing that night, Moyo was looking for a way to return to Zimbabwe.

“It’s not good. People have guns,” she said with a shrug. “I must go.”

Abstract
More than 1,000 people a day are fleeing Zimbabwe and escaping into South Africa due to disputed election and violent crackdown that has followed; in past, men often escaped Zimbabwe to find work in South Africa , but many of Zimbabweans fleeing now are women and children; after early election results from March 29 vote indicated that Pres Robert Mugabe was losing to opposition leader Morgan Tsvangirai, election commission halted results process; results have not been released and recount begun in 23 Parliament races is causing further delays; if there is runoff between Mugabe and Tsvangirai, many fear violence will increase; opposition party says more than 400 supporters have been arrested, 500 attacked, 10 killed and 3,000 families displaced; people who make it across border find sympathy in South Africa ; human rights advocates say only reason more people are not crossing border is because of increased security on South African side

Sarah Ngewerume was driven to the river by despair.

She said she had seen gangs loyal to Zimbabwe ‘s longtime president, Robert Mugabe, beating people — some to death — in the dusty roads of her village. She said Mugabe loyalists were sweeping the countryside with chunks of wood in their hands, demanding to see party identification cards and methodically hunting down opposition supporters.

“It was terrifying,” said Ms. Ngewerume, a 49-year-old former shopkeeper.

Last week she waded across the Limpopo River, bribed a man fixing a border fence on the other side and slipped into a nearby South African farm.

She was among the latest desperate arrivals in what South Africa ‘s biggest daily newspaper is calling “Mugabe’s Tsunami,” a wave of more than 1,000 people every day who are fleeing Zimbabwe across the Limpopo to escape into South Africa .

When a shallow, glassy river and a few coils of razor wire are the only things separating one of Africa’s most developed countries from one of its most miserable, the inevitable result is millions of illegal border jumpers. But South African and Zimbabwean human rights groups say that the flow of people into South Africa has been surging in the three weeks since Zimbabwe ‘s disputed election and during the violent crackdown that followed. One Zimbabwean named Washington, who goes back and forth across the border ferrying Super Sure cake flour and Blazing Beef potato snacks, said the government was now using food as a weapon and channeling much of the United Nations-donated grain to supporters of the ruling party.”As we speak,” he said, “people are starving.”

He seemed more defeated than anything else. “People hate the government,” he said. “But they are too scared to fight it.”

Commercials are now running on Zimbabwean TV showing grainy images of captives from the liberation war in the 1970s and reminding citizens not to disobey their leaders, recent arrivals said.

In the past, countless Zimbabwean men escaped to South Africa to drive cabs or work on construction sites and send money home. But these days, many of the Zimbabweans fleeing are women and children willing to take considerable risks to get out for good.

“We were hoping for change and waiting to see what would happen in the election,” said Faithi Mano, one of more than a dozen Zimbabweans interviewed after they had crossed the border last week. “Now, I have decided to quit that place.”

It does not look as if Mr. Mugabe, an 84-year-old liberation hero who has ruled Zimbabwe for 28 years, will leave office without a fight. After early election results from the March 29 vote indicated he was losing to the opposition leader, Morgan Tsvangirai, the election commission put the brakes on announcing results. The presidential results still have not been released, and a recount begun Saturday in 23 Parliament races is now threatening to drag things out further — the opposition has deemed it “illegal.”

If there is a runoff between Mr. Mugabe and Mr. Tsvangirai, many fear it could get even bloodier. Human Rights Watch issued a report on Saturday saying members of Mr. Mugabe’s party were running “torture camps” where they took opposition supporters for nightly beatings.

On Sunday, the leading opposition party, the Movement for Democratic Change, said more than 400 supporters had been arrested, 500 attacked, 10 killed and 3,000 families displaced. The party released a detailed, day-by-day chronicle of violence that listed huts being burned, people getting cracked in the head with bottles and farms being invaded. The party blamed Mugabe supporters and sometimes government soldiers.

The government has denied any wrongdoing and accused opposition leaders of treason. Mr. Tsvangirai has said it is too dangerous for him to stay in Zimbabwe and has been spending time in South Africa .

The border between South Africa and Zimbabwe stretches about 150 miles, and it is headache-hot out here. “Beware of crocodile” signs shimmer in the sun, the grass is yellow and crisp, and at night, the trees churn with clouds of heat-crazed insects.

For the people who make it through, there is a pipeline of sympathy waiting on the other side. Fellow Zimbabweans living in South Africa — often perfect strangers — have taken in border jumpers, giving them a safe house and a warm cup of porridge, and helping them along their way to Messina, about 10 miles south, and then onward to the bigger cities of Johannesburg and Cape Town.

Joyce Dube, director of the Southern African Women’s Institute for Migration Affairs, which tracks the border issue, said the only reason more people were not crossing was the recently beefed-up security on the South African side. “It’s getting tougher to get through,” she said.

South African military helicopters thunder over the Limpopo and soldiers prowl the border roads, searching car trunks for human cargo. Crews of men in red jumpsuits drip with sweat as they fix the fences. But it is a cat-and-mouse game. No sooner have they patched a hole than it is punched through again.

The fence runs for miles, a shining metal snake going up and down the tawny hills. It used to be deadly, electrified by a high-voltage current. That was in the 1980s, when South Africa and newly independent Zimbabwe were practically at war. Back then, many people were going the other way, fleeing South Africa ‘s repressive apartheid government to escape to Zimbabwe .

At the time, Zimbabwe was one of Africa’s stars. Mr. Mugabe had turned a relatively small, landlocked country into an economic powerhouse that produced beef, grain and tobacco.

“Bob Mugabe was my hero,” said a white Zimbabwean farmer who drove into Messina the other day for supplies. He did not want to give his name because he went on to criticize Mr. Mugabe’s more recent policies and said he was afraid he could be evicted from his farm for doing so. “I know it sounds funny, but it’s true. You have no idea how beautiful Zim was.” Zim is the affectionate nickname for Zimbabwe .

But in the late 1990s, Mr. Mugabe felt he needed to deliver on long-promised land reforms, and Britain, the former colonial ruler, was stalling on paying for them. Mr. Mugabe then encouraged blacks to seize white-owned farms. Whites fled, industrialized agriculture crashed, and today the inflation rate is more than 150,000 percent. Supermarkets often have no food, and 80 percent of the people have no jobs.

The Movement for Democratic Change ran on these woes, and in 2002 it nearly won power, though the elections were marred by violence and intimidation.

This time there was hope that things would be different. Recent arrivals say that a few weeks before the vote, the bullying suddenly seemed to let up — perhaps, some thought, because the ruling party was sure it would win. But when the first results showed Mr. Mugabe losing badly, the government went silent. There were some talks about Mr. Mugabe stepping aside. Then the crackdown began.

Ms. Ngewerume, the escaped former shopkeeper, said opposition supporters in her village in central Zimbabwe became easy targets because they had danced and sung in the streets after early results were tacked up on polling station doors. When the final results did not come, they went into hiding. But the thugs found them anyway, she said.

“I can’t see how Mugabe could win again after all this,” she said.

But, she added, many opposition supporters probably would not take the chance again to cross “the old man,” as Mr. Mugabe is often called.

Ms. Ngewerume was visibly pained just talking politics as she stood under a tree on a farm near the border. “I just want to go there,” she said, stabbing her finger vaguely south, in the direction of Johannesburg. “I’m just struggling to go forward to get something better.”