LHR 2013 Annual Report

ANNUAL REPORT 2013

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013 3

Contents

National Directors message

A letter from the Board

Annual planning meeting

Refugee and Migrant Rights Programme

Strategic Litigation Programme

Land and Housing Programme

Environmental Rights Programme

Note of thanks

Financials

Contact LHR

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58Lawyers for Human Rights

www.lhr.org.za

2013

All rights reserved.

Words and photographs: Lawyers for Human RightsCopy editing and proofreading: Lawyers for Human RightsDesign: Design for development, www.d4d.co.zaPrinter: Corpnet

For nearly 35 years, Lawyers for Human Rights has fought to make rights real for those living in South Africa. We are fortunate to have a dedicated and diverse team of activist lawyers, paralegals and support staff that makes LHR an effective human rights watchdog.

In reflecting on 2013, it is clear that South Africa still has a long road ahead in changing inequities and discrimination caused by decades of apartheid. Issues of rampant corruption in government and the private sector, excessive use of force by the police and the introduction of retrogressive laws are new priorities on the human rights agenda.

LHR has had the opportunity to provide much-needed legal assistance to poor and marginalised groups affected by rights violations. Our programmes on refugee and migrant rights, environmental justice, strategic litigation and land reform and housing have made significant contributions in these sectors.

REFUGEE AND MIGRANT RIGHTS

The Refugee and Migrant Rights Programme remains the largest legal service provider to refugees and asylum seekers in South Africa. Several noteworthy successes in court include the case challenging the polices unlawful targeting of foreign-owned businesses in Limpopo during the controversial SAPS Operation Hardstick.

Together with partners in the Eastern Cape, we were also successful in challenging the closure of the Port Elizabeth Refugee Reception Office in the Eastern Cape High Court.

In partnership with the African Centre for Migration and Society, the report Policy Shifts in the South African Asylum System: Evidence and Implications was launched. It addressed a major shift in South Africas approach to asylum seekers and refugees the most significant since the asylum system was established in the 1990s. The right to nationality and the prevention of statelessness has become an important theme in LHRs Refugee and Migrant Rights Programme. In 2013, LHR published the report Statelessness and Nationality in South Africa that has gone a long way in highlighting and explaining this largely misunderstood human rights concern.

STRATEGIC LITIGATION

LHR uses strategic and constitutional litigation as a means of providing access to the basic rights enshrined in the Constitution and protecting hard-won precedents. LHR continues to represent the Southern Africa Litigation Centre and the Zimbabwe Exiles Forum in the so-called Zimbabwe Torture Docket case. The landmark case relates to evidence of crimes against humanity committed during a police raid on MDC headquarters in Zimbabwe in 2007. The case was brought to determine South Africas obligation under international and domestic law to ensure that those alleged to have committed crimes against humanity are held accountable.

The Seriti Arms Procurement Commission has begun its inquiry into one of South Africas biggest scandals of the post-apartheid era involving massive corruption in the procurement of arms. LHR is representing expert witnesses Andrew Feinstein, Paul Holden and Hennie van Vuuren. Our efforts to access vital documents related

to the so-called Arms Deal and participation in the Commission continue.

LAND REFORM AND HOUSING

Land reform remains one of South Africas biggest post-apartheid challenges, LHRs Land and Housing Programme assists dispossessed communities with the finalisation of their land claims. In 2013, the Supreme Court of Appeal delivered a landmark judgment in the Baphiring land restitution case. LHR represented the Baphiring community who were forcibly removed from their land in 1974 under the 1913 Natives Land Act. The judgment is hoped to form a template on how the government deals with the post-settlement of land restitution cases.

Unfortunately, our offices were inundated with people who were unlawfully evicted in the winter months of 2013. For instance, in Bronkhorspruit, over 200 families were illegally evicted and their homes demolished by the City of Tshwane. LHR was successful in compelling the City to rebuild the homes and allowing families to return.

ENVIRONMENTAL JUSTICE

The extractive industry in South Africa has placed tremendous pressure on the environment and poor communities who are often disproportionately affected by unsustainable mining operations.

LHRs Environmental Rights Programme provides expert legal advice to individuals and communities seeking to protect their constitutional right to an environment that is not harmful to their health.

In Limpopo, LHR is representing the Mokopane community that has


NationalDirectors message

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013 LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013 76

After 34 years, LHR continues to be a force in the promotion of human rights

been largely ignored by the platinum mining giant Ivanplat Resources during prospecting in the area for what is argued to become the largest platinum mine in the world. A lack of meaningful consultation with the community spurred legal action and LHR is insisting that affected parties be consulted directly.

In the south of Gauteng, Acid Mine Drainage in parts of Riverlea as a

result of collapsed gold mine dumps from the 1950s being re-mined, has led LHR in collaboration with the Centre for Environmental Rights to intervene.

In Mpumalanga, LHR litigated on behalf of the Silobela community to compel the municipality to provide temporary water services when pollution, caused by reckless mining, left thousands of people without clean drinking water.

We extend our deep gratitude to our donors and colleagues in private practice who have given their time generously.

We look forward to similar progress in 2014 and the opportunity to celebrate our 35-year anniversary.

Jacob van Garderen

National Director

LHRs Board, consisting of Professor Ann Skelton, Arnold Tsunga, Professor Benny Khoapa and Seehaam Samaai, are proud to have been a part of this leading human rights organisation that continues to promote awareness, protection and enforcement of human rights and the creation of a human rights culture in South Africa.

This year we said goodbye to Professor Khoapa who had been a part of LHR since the new board came into operation seven years ago. A decision was taken to keep the Board small to ensure greater and increased efficiency, enable decisions to be made faster and to reduce costs.

In 2014, we will be welcoming Nobuntu Mbelle whose skill and knowledge of the human rights sector will enhance LHRs work even further.

We are proud to note that after 34 years, LHR continues to be a regional and international force in the promotion of human rights. Its Refugee and Migrant Rights Programme has become a source of knowledge and leadership across the continent and a beacon of hope to many.

The Schubart Park, Marlboro, Pheko and Itireleng cases of the Land and Housing Programme reflect the stark reality that in post-apartheid South Africa, mass evictions and forced removals remain part of our landscape despite the constitutional and legislative framework and plethora of case laws relating to evictions. The Programmes work has not gone unnoticed. The cases reflect tireless efforts in ensuring evictions do not result in vulnerable persons being rendered homeless or vulnerable to other rights violations.

The lack of post-settlement support to land claimants have raised challenges in communities and LHR provides immense legal and

technical support to land claim communities that ensures greater public participation, government accountability, just administrative action and post-settlement resource allocation.

LHRs decision to focus on environmental rights is well placed in a country with growing concerns around the ability of all spheres of government to ensure the fundamental principles of environmental governance are adhered to by industrial and commercial entities. These challenges can be seen within the mining sector where unregulated activities impact on the health, water security and livelihood of surrounding communities. The Environmental Rights Programmes work has become critical in ensuring communities become central within any development process affecting their rights, including housing, land, health food and water, culture and other enabling rights.

We commend the Strategic Litigation Programme for providing excellent support to LHRs other programmes. The Board supported LHRs decision to litigate in its own name and intervene as amicus curiae in the Mail & Guardian versus Chipu matter. The Arms Procurement Commission has become LHRs David and Goliath battle and continues to take up significant time and resources. The Board continues to support the Programme in its efforts.

LHR hosted numerous workshops, seminars, colloquiums and conferences throughout the year and these opportunities provided exposure for our young lawyers to other systems and strengthened LHRs international relationships.

LHR has grown from strength to strength on governance. Our innovative human resources plan has ensured that our younger lawyers are mentored and retained.

LHRs work has not been without challenges and an increased workload and decreased funding for its operations and activities remain of concern to the Trustees. Despite a tight budget, LHRs prudent planning and management has allowed it to once again deliver excellently on its activities. We maintained our record of financial governance by receiving another unqualified audit. This is a commendable achievement and clearly attributable to the commitment of its all LHR staff and, in particular, the regional management team.

The Board will continue to provide strategic direction, leadership and good corporate governance support to the national director to ensure the objectives of LHR are attained. However, our oversight role has been made easier by the continued committed and passionate leadership of National Director Jacob Van Garderen and his team.

The Board wishes to extend their heartfelt appreciation to the legal professionals and regional administrative staff who are at the forefront of the providing quality legal services and their commitment to serve LHR despite heavy case loads and challenging working environment.

The Board remains confident that LHRs staff will continue to give effect to its vision, mission and objectives and make access to justice a reality to the most vulnerable and marginalised.

I must acknowledge, on behalf of the Board, our appreciation for the continued support and guidance of our funders, donors, all our strategic partners, LHR members and the friends of LHR.

Continue the excellent work!

Seehaam Samaai On behalf of the LHR Board

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 2013 9LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 20138

A letterfrom theBoard


UNHCR country representative Isabel Marques holds a session on refugee protection in Mozambique.

LHR HELD ITS ANNUAL PLANNING MEETING IN MAPUTO, MOZAMBIQUE IN OCTOBER.

The purpose was to take stock of LHRs existing work, evaluate the performance of its programmes and make plans for 2014.

While there, LHR met with several human rights organisations, including Liga dos Direitos Humanos about various human rights challenges in Mozambique and Southern Africa. LHR also met with the Mozambican Association of Mineworkers to discuss collaborative efforts to provide legal services to Mozambican miners in South Africa.

LAWYERS FOR HUMAN RIGHTS ANNUAL REPORT 201310

Annualplanning meeting


My internship at LHR has proved invaluable after making the decision to pursue a career in public interest law.

The ever-changing and dynamic nature of LHRs work has helped me develop the ability to look at the law as an array of opportunities and possibilities.

Its law clinics present a variety of legal and social issues waiting to be solved. Working with a determined team of attorneys, advocates and other interns from various backgrounds enables the organisation to solve legal issues innovatively and efficiently.

I was tasked with a fair amount of responsibility due to the mentoring nature of the organisation. This has given me the confidence to move forward in my career.

Consulting with clients at detention facilities, drafting letters of demand, filing and serving court papers and attending court is just some of the exposure I have been lucky enough to receive.

Accompanying clients to Refugee Reception Offices in Pretoria has also taught me to approach the refugee system pragmatically. The scope of LHRs work has forced me out of my comfort zone with the support and encouragement of senior staff.

Continual training workshops at LHR helps interns gain confidence in dealing with matters you may not have come across before while developing the skills needed in this exciting field.

One of the most powerful aspects of LHRs work are the cases taken on. The majority of these cases not only help those in need but also challenge existing laws with the aim of creating precedents in South African law for similar cases.

The value of an internship at LHR cannot be overstated. I have been able to develop and discover my strengths, weaknesses and interests. I learned to confront and overcome the fear of the unknown and I am more prepared for my future. I learned more in my short time at LHR than the four years spent at university.

The word of an intern

Jessica Lawrence is an intern with the Refugee and Migrant Rights Programme in Johannesburg.

Being a candidate attorney at LHR

When I first started serving my articles at LHR, I underestimated just how broad the field of public interest law was. Going in I thought I would be working within a narrow scope of the law but as time passed, the more the areas I worked in began to branch out.

I was fortunate to work with a group of attorneys and other legal professionals that were always willing to listen, offer insight and guidance and, most importantly, shared my passion for the enforcement of human rights in a non-discriminatory way to those in need of assistance.

As a candidate attorney I worked on a range of issues, including judicial reviews, land claims and labour and criminal court practice.

During the two-year candidate attorney programme, I also learned how to address issues through advocacy in an effort to avoid litigation.

The space for growth within LHR is remarkable. After completing my articles, I began working full-time in the Statelessness Project that forms part of the Refugee and Migrant Rights Programme. My time at LHR has only served to strengthen my conviction for public interest law.

I would recommend LHR to anyone with a legitimate interest in human rights law and those looking to gain a promising start to their career.

Lusungu Kanyama-Phiri was a candidate attorney with LHRs Refugee and Migrant Rights Programme and Strategic Litigation Unit for two years.


Refugee andMigrant Rights

Programme

LHR remains vigilant to ensure continued progressive expansion of its rights-based approach


REFUGEE RECEPTION OFFICE CLOSURES

The closure of Refugee Reception Offices (RRO) has continued since 2011 in Johannesburg, Cape Town and Port Elizabeth.

The 2013 asylum statistics report an analysis of Home Affairs asylum database as presented to Parliament by Deputy Minister Fatima Chohan demonstrated a gradual decline in the number of registered asylum seekers in 2013.

Due to the closure of RROs in Johannesburg, Cape Town and Port Elizabeth, the numbers of asylum applicants at the Marabastad RRO in Pretoria have increased dramatically, leading to high levels of corruption. The report concluded that there were concurrent push factors in countries of origin, fuelled by pull factors in South Africa and that this was responsible for the high numbers of new arrivals.

The statistics report showed that 70 010 new arrivals were registered in 2013. This is around 9 000 more applications compared to 2012.

Just under 50% of new asylum seekers were from the SADC region with Zimbabwe being the

While operating within an asylum and migration system in which the humanitarian space is shrinking, LHR has enjoyed a productive and fruitful year.

We will finalise the implementation of our policy position to relocate Refugee Reception Centres closer to the borderlines with the assistance of the Public Works Department.

DEPUTY HOME AFFAIRS MINISTER FATIMA CHOHAN

largest contributor with 16 420 new applications, the DRC with 7 175, Mozambique and Lesotho with approximately 3 500 each and Malawi 2 493.

Asylum seekers from West and East Africa constituted 32% of overall applicants, the rest were received from South and Central Eastern Asia.

Gauteng remained the hub with 71% new arrivals registered and other provinces receiving a combined 29%. This added significantly to

urban influx challenges faced by Gauteng and competition for scarce resources leading to other social and economic challenges.

LHR is concerned by Home Affairs decision to implement the first safe country principle that would mean those seeking asylum would need to lodge an application in the first safe country in which they find themselves. If they do not, they risk being sent back to that country by the country in which they do apply for asylum.

Refugee Reception Office closures raise concerns

South Africas urban-based refugee protection model, founded on the principles of freedom of movement and local integration, has been lauded as a progressive break from the traditional camp-based approach.

However, Home Affairs insistence on relocating all of South Africas RROs to its borders continues to be a concern, especially as these decisions are largely made without proper consultation.

RROs are the primary point of contact between asylum seekers, refugees and Home Affairs. Since 2011, several RROs have been closed Johannesburg,

Port Elizabeth and Cape Town increasing challenges around access, delays and corruption.

In 2012, Home Affairs announced its intention to relocate RROs with additional plans to construct reception facilities at Lebombo in Mpumalanga, near the Mozambican border. So far, R28.8-million has been earmarked for the establishment at Lebombo while the project as a whole is estimated at a staggering R110-million.

LHR, together with other affected civil society organisations, have challenged this wasteful expenditure that would be better spent on more pressing issues like resolving RRO staffing shortages, long queues and

2013 IN

REVIEW

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The protection of refugees and asylum seekers became a key human rights concern during South Africas first decade of democracy.

Since 1994, approximately 200 000 people, mainly from conflict areas such as the Great Lakes region, Somalia, the Democratic Republic of Congo and Zimbabwe have applied for asylum in South Africa.

Despite relatively modest figures, the government has struggled to give effect to constitutional and international obligations to provide sanctuary and protection to refugees and asylum seekers.

LHR advocates for and enforces the rights of asylum seekers, refugees

and migrant workers in South Africa.Since 1996, LHR has been providing legal assistance to refugees, asylum seekers and migrants from its offices in Johannesburg, Pretoria, Durban and Musina.

LHRs litigation has focused on unlawful arrest, detention and deportation practices, refugee status determination decisions, prevention of statelessness and the socioeconomic rights of refugees and migrant workers.

Litigation is used to advance clients rights and to develop African jurisprudence in the field of refugee and immigration law. LHRs legal advocacy focuses on unlawful arrest, detention and deportation practices, facilitating access to asylum and the socioeconomic rights of refugees and migrants.

In addition to direct legal assistance, LHR undertakes strategic litigation, human rights monitoring, policy development, training and advocacy through research, publications and participation in a number of national and international refugee and migrant advocacy networks.

LHR also carries out vigorous detention monitoring throughout South Africa at detention centres, police stations, airports and prisons.

In 2011, LHR went a step further by introducing the Statelessness Project, a special initiative meant to prevent and reduce statelessness by offering direct legal services, advocating for law reform, conducting public awareness campaigns and offering training to lawyers and government officials in the field.

Deputy Home Affairs Minister Fatima Chohan has release the number of new arrivals registered by the Department in 2013.

71% GAUTENG29% OTHER PROVINCES

NEW ARRIVALS2012 VERSUS 2013

2013 2012

PRETORIA

MUSINA

DURBAN

CAPE TOWN

70%

19%

9%

17%

50%

3%

7%

1%

PERCENTAGE OF NEW ARRIVALS


OLD RECEPTION OFFICES

Johannesburg Refugee Reception Office19 Planet AvenueCrown Mines

Marabastad Reception OfficeCnr DF Malan Drive and Struben StreetPretoria West

Tshwane interim Refugee Reception Office 203 Soutter Street, Pretoria ShowgroundsPretoria

Durban Reception Office137 Moore RoadDurban

Cape Town Reception OfficeSturrock Building18 Montreal RoadAirport IndustriaNyanga, Cape Town

Musina8 Harold Grenfell StreetMusina

Port ElizabethKIC 5 Sidon Street North EndPort Elizabeth

REMAINING RECEPTION OFFICES

Marabastad Reception OfficeCnr DF Malan Drive and Struben StreetPretoria West

Tshwane interim Refugee Reception Office 203 Soutter Street, Pretoria ShowgroundsPretoria

Durban Reception Office137 Moore RoadDurban

Musina8 Harold Grenfell StreetMusina

OLD RECEPTION OFFICES

REMAINING RECEPTION OFFICES

stamping out widespread corruption to which Home Affairs has admitted in its 2011/12 annual report.

This intended relocation is not only a technical and operational decision but one that impacts the basic principles of the asylum system. The closures constitute the implementation of policy before the completion of policy formation.

The ensuing inability to lodge applications to renew documents has left asylum seekers and refugees at risk of becoming undocumented and subjected to fines, detention and refoulement.

In June 2013, LHR representing the Somali Association of South Africa and Project for Conflict Resolution and Development was successful in having the Eastern Cape High Court declare the decision to close the Port Elizabeth RRO unlawful and ordering it to be reopened an order Home Affairs has ignored.

The Port Elizabeth RRO is the only place in the Eastern Cape at which asylum seekers and refugees can access their statutory rights under the Refugees Act. Between May 2010 and March 2011, the RRO processed over 22 500 asylum seeker and refugee applications. At present, only three RROs remain operational: Pretoria, Durban and Musina.

Most concerning was the complete absence of consultation by Home Affairs in taking the decision to close the office, something agreed to in the judgment.

Home Affairs argued public consultation was impossible because they could not identify who to consult with. However, they added civil society organisations did not have the inherent right to be consulted with either.

This decision caused severe prejudice to asylum seeker and refugee communities, considering that in the case of Cape Town, the closest office is over 700km away. Travelling to and from potential border offices would be extremely costly and time-consuming, resulting in people having to live near RROs.

The impact of moving RROs depends entirely on the details of the plan and as a result, many questions remain:

Would all asylum management functions, such as permit renewals of existing asylum seekers, appeals and reviews be relocated to ports of entry or only the functions relating to new arrivals?

Where would these facilities be located, given that significant numbers enter South Africa through various land borders including Namibia, Swaziland and Botswana and sea ports and airports.

How will asylum seekers be treated who only declare their intention to apply for asylum once inside the country?

What adjudication processes are intended to be completed and in what time frames?

How will Home Affairs manage the welfare requirements of asylum seekers while waiting to access and complete documentation processes?

Would asylum seekers be required to remain

in the vicinity of the RRO for the duration of the adjudication process? If so, will they be detained? Although stating it is not government policy to establish refugee camps, there is a very real likelihood that the relocation of RROs to remote areas like Lebombo would create de facto camps as seen in other countries with similar policies.

By relocating RROs, Home Affairs will struggle with staffing as experienced and senior staff and refugee status determination officers may not wish to move to remote border towns.

Amid these concerns, South Africas commitment to refugee protection will continue to be questioned if the border move leads to asylum seeker detention, which may cause a humanitarian crisis due to a lack of adequate shelter and welfare provision or extreme hardship for existing asylum seekers and refugees in keeping their documentation up-to-date.

Until these concerns have been adequately addressed in an open and transparent manner, the relocation of RROs should be resisted.


with the South African Police Service to close foreign-owned businesses in townships.

The reasons given for limiting asylum seekers rights to work confuse the reasons why people apply for asylum and basic rights once they have applied.

REFUGEE RECEPTION OFFICES

Since 2010, Home Affairs has closed several RROs and announced its intention to relocate existing RROs from major cities to international land borders.

South Africa has a non-encampment policy but there are several indications that some form of de facto detention is planned, even if such detention may not be called a camp.

The Johannesburg, Port Elizabeth and Cape Town RROs were closed in an unlawful manner due to a lack of substantive consultation and Home Affairs has ignored court orders to reopen RROs or to provide equivalent services in these municipalities.

The ensuing inability to lodge applications or renew documents has left asylum seekers and refugees at risk of becoming undocumented and at risk of fine, detention and refoulement.

APPEALS

Slow appeal completion rates due to low capacity and the need to rehear many cases after the non-

renewal of RAB judges means that a new backlog has developed, increasing waiting times.

New RAB judges are inexperienced in refugee law. In fact, while they are legally trained, they have only received half a day of training by the UNHCR since their appointment.

New procedures make it harder for asylum seekers to manage their own appeals, disadvantaging those without access to legal service providers.

The report documented several other concerns in policy and practice, including:

Changes in practice were not preceded by explicit policy documents

A lack of clear statements of the intended strategic aims of the changes in practice and no logical connection between the problem and the proposed solution

The recent practices either contravene the law or clash with the spirit of the law

Evidence that the shifts in practice are already showing counterproductive effects for both asylum seekers and South Africans with the likelihood of these increasing

Little, to no, substantive consultation with stakeholders

THE RIGHT TO SELF-EMPLOYMENT FOR REFUGEE TRADERS

LHR has been at the forefront of challenging the unlawful targeting of informal traders in Limpopo.

In 2012, LHR challenged the right of refugees to self-employment after hundreds of refugee spaza shops were forcibly closed down by the police in a crackdown on businesses perceived to be operating illegally.

The application was brought against the Limpopo government, the police

and several other departments on behalf of the traders, arguing that refugees and asylum seekers living in South Africa legally were entitled to trade and operate business to earn a living in circumstances where they had no other means of livelihood.

The application was dismissed in September 2013. The closures and confiscations led to the traders losing their only source of income.

These are largely small tuckshops and spaza shops operating in remote areas in Limpopo. LHR sought leave to appeal and in December 2013 was

granted leave to appeal. The appeal will be heard in the SCA in 2014.

XENOPHOBIA AND TIGHTENING IMMIGRATION LAWS

Xenophobic attacks have continued to erode South Africas role as a continental leader on issues of refugee protection.

During the Public Interest Law Gathering at Wits University, the UNHCR estimated that 62 foreigners were killed in South Africa within the first six months of 2013.

ASYLUM REPORT

LHR in partnership with the African Centre for Migration and Society released the report Policy Shifts in the South African Asylum System: Evidence and Implications that was motivated by evidence of changes and statements concerning intended shifts in policy within the asylum system in 2013.

The report focused on five main areas:

Group Exclusion: Restrictions on groups (by nationality) seeking

to enter the country to apply for asylum.

Access barriers: Ad hoc and unlawful use of asylum transit permits (Section 23 permits)

to limit access to asylum by not issuing such permits at

border posts.

Limitation of basic rights: Home Affairs intention to reconsider the right to work and study for asylum seekers.

Refugee Reception Offices: Closures and relocation of existing RROs.

Appeals: Increased backlogs due to the restructuring and under-capacitation of the Refugee Appeals Board (RAB).

Taken together, these changes represent a major shift in the approach to asylum since the system was established in themid-1990s.

Policy shifts in the South African asylum system: Evidence and implications

The report was motivated by evidence of recent restrictive changes in practice within the asylum system in South Africa and statements concerning intended shifts in policy. Since early 2011, these shifts have occurred in five main areas:

GROUP EXCLUSION

The introduction of the so-called first safe country requirement stipulates that an asylum seeker must apply for asylum in the first safe country that they have an opportunity to apply in. If they first apply for asylum in a subsequent country, that country can return them to the first country to adjudicate their claim. Such agreements are ordinarily made between specific countries and are not enshrined in international law.

Home Affairs has expressed its intention of introducing this requirement for accepting asylum seekers but no policy has been presented for consideration despite representing a significant change in the present requirement of individual assessment of all asylum claims.

The framework of such a principle is a long-term process that is likely to create a more costly and administratively complex system. Denial of entry also pushes people to enter the country irregularly, exposing them to the dangers of rape, assault, trafficking, theft and death during passage.

ACCESS BARRIERS

Since 2011, there have been episodes in which the Immigration Acts asylum transit permit (also known as the Section 23 permit) was used to deny asylum seekers access to asylum.

The non-issuance of the permit demonstrates a lack of basic legal knowledge, coherence and oversight among Home Affairs officials at various levels. There is no effective remedy for an asylum seeker to resist denial of entry or seek recourse for an unjust decision.

Allowing state officials to exercise ad hoc authority outside their mandated powers erodes the rule of law and public confidence that governmental institutions are accountable to those they serve.

LIMITATION OF BASIC RIGHTS

Following the Watchenuka judgment of the SCA, asylum seekers have the right to work and study in South Africa and the right to move freely within its borders.

There have been indications from Home Affairs and other stakeholders that they are considering limiting these rights. No formal policy statement or legislative draft has been released yet.

There have been ad hoc attempts to implement limitations, though, in the absence of a formal policy. One example of this is Home Affairs communication

+++


April 10 in Sasolburg: Following an early warning notification, SAPS were present during and after a march organised by the ANC Youth League. Crowds of up to 3 000 people were managed by the police and order was successfully maintained. Refugees were warned and had closed their shops and removed their stock in anticipation of possible looting and attacks.

These kinds of incidents have become normal and rarely attract attention. As a result it appears as if the situation is under control but nothing could be further from the truth. Similar incidents are reported daily and while segments of the police are working to protect foreign nationals who may be targets of xenophobic hatred, there are also officers who act unlawfully and for their own financial gain as was noted in the recent arrest of a woman who was impersonating an officer in Johannesburg and allegedly soliciting money from foreigners.

In worst-case scenarios, scenes of a Mozambican taxi driver being dragged behind a police bakkie show just how fragile this protection may be.

SAPS cannot be the sole government department to take responsibility for combating xenophobia. The National Prosecuting Authority and Justice Department have not publicised their statistics on investigations and prosecutions arising from

xenophobia-related crimes. This would be a strong deterrent to any groups planning raids and attacks on foreign nationals.

We are not seeing strong enough sanctions and penalties for those perpetrating criminality against foreigners. Neither the government, nor the ruling party has taken the lead on tackling xenophobia. Instead the ANC has tabled policy limiting the rights of foreigners to work and Home Affairs is making plans to move refugee processing to border regions away from urban centres thereby creating the danger of shanty towns developing along our borders while still offering little to combat xenophobic attitudes within our communities.

Where this leaves us is that groups like the Greater Gauteng Business Forum and their ilk perceive their strategies to evict foreigners from local communities as being quite successful. This weak response to policing and targeting of hate crimes allows criminality to fester and offers little protection to the victims of hate crimes. The go home or die here attitude should have no place in this country. This was never the intention of our Constitution and has the effect of watering down our respect for human dignity and democracy.

Kaajal Ramjathan-Keogh heads LHRs Refugee and Migrant Rights Programme.

A FOCUS ON THE MENTAL HEALTH OF REFUGEES

A joint project by LHR, the UNHCR and Centre for the Study of Violence and Reconciliation (CSVR) was launched in 2013 to provide holistic support to vulnerable refugees. This is in recognition of the negative impact violence, traumatic events and difficult living conditions have on the mental health of refugees.

Although only a marginal amount of refugees suffer from mental health problems, those who do faced massive obstacles in accessing health care as well as seeking and retaining employment.

Throughout 2013, LHR assisted over 10 000 people through its law clinics, work on statelessness, detention monitoring and mental health project.

DETENTION MONITORING

245

MENTAL HEALTHPROJECT

156

It estimated that 130 incidents were reported during this period with 73 people being seriously injured and 5 000 others displaced. In 2012, 238 incidents were reported with 120 deaths and 7 500 being displaced.

Among the incidents reported in 2013 was unrest in Diepsloot in May following the arrest of a Somali businessman for allegedly shooting dead two men. In the same month, foreign nationals were attacked and their shops looted in Evaton, Sebokeng and Orange Farm.

South Africas ability to position itself as a continental leader has

also been made more difficult as immigration policies become increasingly stringent. This not only leads to the sanctioning of xenophobic intimidation and violence but also exacerbates the countrys skills shortage.

South Africas recent introduction of stricter immigration laws will effectively serve to close the countrys borders to African immigrants, many of whom add valuable skills to the local economy.

The idea behind the Immigration Amendment Act is that South Africa should, as part of its policy

to stem the inflow of immigrants, seek to build ailing countries so that those who would ordinarily have considered moving to South Africa are more likely to stay and build a life within their own countries. While this rationale is sound, closing South Africas borders is not a realistic solution.

With countries such as Zimbabwe, the DRC and Cote dIvoire seeing a surge of immigrants escaping uncomfortable political and economic situations, the move by policymakers to tighten regulations around immigration is counterproductive.

Five years on and no closer to solving xenophobic hatred

May marked five years since the xenophobic attacks that shocked the nation. But what has happened since then? Are we better prepared to deal with criminality of that scale than we were five years ago? The simple answer is no.

South Africa in its 19 years of democracy had never before seen the scale and intensity of the 2008 xenophobic violence and displacement. It was because of this that the horror of the displacement caused us to pay attention. After initial attacks in the townships of Alexandra, Diepsloot and Tembisa during the first five days of the attacks, security forces were unable to prevent the spread of violence or halt the mushrooming attacks, loss of life and property. In the end, more than 60 people were killed in the violence.

After the South African Human Rights Commissions investigation into the violence, a number of recommendations were made to government departments to develop mechanisms to reduce and prevent the kind of violence and attitudes seen during the 2008 attacks. Many of these recommendations have still not been operationalised. For example, a recommendation to the Justice Department to develop hate crimes legislation and support measures to institute it has been in the pipeline for many years without resolution.

The police to an extent have made some progress in working towards these recommendations.

The visible policing unit has managed to quell threats and incidents of violence. These efforts are mainly focused in Gauteng and urban centres while the Eastern Cape, Free State and Limpopo continue to be areas in dire need of policing interventions. According to the UNHCRs xenophobia hotline, an average of 238 incidents a month are reported to the police. SAPS have displayed a success rate of 50% in preventing death, injury and loss of property through early intervention efforts.

In April alone, police were called in on numerous occasions to intervene and offer protection in xenophobic incidents. These are just a few of the reported cases in and around Pretoria:

April 24 in Soshanguve: SAPS members successfully assisted Somali shopkeepers in resisting an attack and protected their stock;

April 20 in Ga-Rankuwa: SAPS were slow to respond and despite repeated calls for assistance, police only arrived after more than half their stock was looted and one of the victims had been shot;

April 13 in Mamelodi East: A Somali man was shot in a seemingly targeted attack on foreign-owned shops;

April 1 in Delmas extension 3: Ten refugee shops were looted. Despite calls for police assistance and shots being fired, police were absent and unable to provide protection;

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CLINIC OUTREACH

70SOCIAL GRANTS INTERVENTIONS

250POST-XENOPHOBIA OUTREACH

105

LEGAL SERVICES IN MUSINA

958LITIGATION

4 300

LAW CLINICS

3 933


LHR advocates for and enforces the rights of asylum seekers, refugees and migrant workers in South Africa

It was suggested the ships be sold

at auction to recover the wages of

the fishermen who had not been

paid in over two years. On learning

of the mens presence, Home Affairs

boarded the vessels and forcibly

removed them. They compelled

them to board busses to Lindela for

deportation, without any attempt

to investigate their individual

circumstances.

On 3 December 2013, LHR wrote

to Home Affairs demanding that

the men not be deported pending

the outcome of proceedings for the

recovery of their wages, that they be

released and returned to the ships

and issued with the appropriate

temporary residence permits due to

circumstances beyond their control.

Legal proceedings are expected to

lead into 2014.

Throughout the year, 22 high court

applications were launched 16

of which were urgent applications for the release of detainees from Lindela.

In most instances, litigation is a last resort in LHRs detention matters but several cases did appear before court.

Notable cases were detainees who had spent more than 120 days in detention, those whose detention was increased by the magistrates court without their prior knowledge and/or participation, minors being detained on the pretext that they were thought to be adults, the detention and deprivation of access to the asylum process of newly arrived asylum seekers and economic migrant who bore valid documents but was still detained for nearly a month.

In one notable case, LHR assisted the Cape Town-based law firm, Alan Goldberg and Associates, in the case of 75 Indonesian fishermen that had been employed on seven fishing ships in the Cape Town harbour for roughly two months. The vessels were abandoned and the owners whereabouts were unclear.

Of them, 72 were in possession of valid Indonesian passports but three had lost their travel documents. Stranded in the international area of the harbour, they were assisted by local civil society organisations.

IMMIGRATION DETENTION MONITORING

One of LHRs busiest projects is the Detention Monitoring Unit that investigates the arrest, detention and deportation of non-nationals at police stations, international airports, prisons and the Lindela Repatriation Centre.

The Refugees Act is the only applicable legislation when dealing

During 2013, LHR assisted 236 detainees.

2013 IN

REVIEW

REFUGEE AND MIGRANTS RIGHTS PROGRAMME SUB-PROJECT

LHR has been litigating for the release of those held unlawfully in detention since 2006 with a high success rate litigating approximately seven high court applications each month.

with arrested asylum seekers and refugees as it prohibits their arrest and detention until they have had an opportunity to lodge an asylum application and a fair chance to have it evaluated.

Where a foreign national is encountered without any documentation and expresses the intention to apply for asylum, they should not be dealt with in terms

of the Immigration Act but as an asylum seeker in terms of the Refugees Act and afforded a chance to apply for asylum.

Despite the clear interpretation of the Act, LHR still sees asylum seekers being arrested at South Africas borders because of expired permits, at RROs and detentions of over 120 days.


ID blocking: A growing threat to nationality

South Africas 1994 elections paved the way for all citizens to enjoy the human rights flowing from equal citizenship but rumours of the deficient pre-electoral registration of the previously disadvantaged have been wholly disregarded in the wake of apartheids fall. The effects of rushed registration policies have caught up with us and an urgent response is needed to avoid a potential nationality crisis.

Home Affairs recent attempts to tidy up the population register have left many South Africans, not only unequal but stateless and without recourse. Home Affairs has launched a campaign to eliminate duplicate and fraudulently obtained identity numbers.

More than 500 000 potential duplicate or multiple ID cases were initially identified and the ID numbers were blocked.

A blocked ID equates to someone being deprived of nationality and denied access to basic rights while their status is investigated.

As for fraudulently obtained ID numbers, officials routinely block ID numbers upon mere suspicion of the person being a foreigner. Fraudsters and innocents alike are being deprived of nationality until they can prove their identities. Due to strict documentary requirements, many are unable to prove their heritage. The initiative, in principle a praiseworthy effort, simultaneously poses a direct threat to the right to nationality.

INADEQUATE CIVIL REGISTRATION PRE-1994

Birth registration has been compulsory for all races in urban areas but voluntary for Africans in rural areas since 1923. Africans were largely excluded from the population register pre-1994. Of those entered into the system, many were recorded incorrectly. It was only in 1986 that legislation made provision for all groups to be included. As a result there is very little documentary proof of births and identity preceding democracy.

In the run-up to elections, there was a scramble to put people on the register to allow them to vote. The resulting chaos meant a significant number of wholly undocumented people had to be registered, dompas numbers had to be translated into regular

ID numbers and a great number of people from the TBVC-states had to be incorporated into the population register.

Those who had dompas numbers were automatically allocated new ID numbers without their knowledge. In a 2012 progress report by the Home Affairs director general, it was explained that people whose reference book numbers were changed into ID numbers often were not informed and applied for and received other ID numbers resulting in them holding two ID numbers. This is what is referred to as multiple ID numbers. A duplicate ID refers to the situation when one ID number was given to two different persons.

Applicants falling into this ad hoc regularisation process often reported that ID numbers were issued without needing proof of birth. Because these births were not adequately registered, they face potentially insurmountable challenges if asked to prove their nationality.

Home Affairs recently announced that all duplicate ID numbers would be cancelled by December 2013 if the holders did not come forward and prove their right to South African citizenship. Given our countrys history and poverty, it is unreasonable and racially discriminatory to announce the cancellations and expect all affected persons to be informed and to be able to provide extensive documentary proof of their birth pre-1994.

SUSPECTED FRAUDULENT IDS

The practice of blocking ID numbers in suspected fraud cases has risen. The situation has deteriorated to such an extent that officials have begun arbitrarily seizing ID documents of unsuspecting citizens upon mere suspicion of being a foreigner. Citizens find themselves stripped of nationality without due process as they apply for passports or new ID books using the same ID number they had been using for the last 20 years. They are often not supplied with written reasons for the blocking of their ID and are oblivious to available remedies. The only direction they are provided with is a long list of supporting documents that are often impossible to obtain. It is virtually impossible to get Home Affairs to answer a request for reasons or to finalise an investigation quickly, putting the affected persons life on hold indefinitely.

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STATELESSNESS PROJECT

The Statelessness Project addresses the increasing need for legal assistance in accessing the right to nationality in South Africa. The goal is to prevent and reduce statelessness and address barriers to citizenship and birth registration through advocacy, direct legal services and strategic litigation.

Since 2011, LHR has assisted people from various countries of origin through its law clinics in Pretoria, Johannesburg, Musina and Durban. Extensive mapping has been done to identify the main causes of statelessness and the populations most affected by it.

In 2013, LHR helped 235 clients through direct legal services.

Advocacy remains one of LHRs core functions. The report Statelessness and Nationality in South Africa based on research conducted by LHR was released in 2013 during a photographic exhibition that featured portraits of LHRs clients. It demonstrated the effect and affect of statelessness on the lives of individuals. Short captions and quotes from clients personalised the abstract nature of the issue, enabling the public to identify with clients.

LHR launched several court cases throughout 2013 to assist those at risk of becoming stateless and the governments inadequate

REFUGEE AND MIGRANTS RIGHTS PROGRAMME SUB-PROJECT

A stateless person is someone not recognised as a citizen by any state, whether in law or in practice.

implementation of existing nationality and immigration laws. These cases address individual clients problems as well as a wider problem within the law to encourage the development of legislation and policy. This litigation also brings the existence of specific barriers to nationality to Home Affairs attention and provides the opportunity for the court to interpret and develop the law.

LHR has done a lot by way of education and advocacy, reaching out to communities through birth registration workshops and information sessions and introducing local Home Affairs officials to communities who may have difficulty obtaining nationality and immigration documentation. In collaboration with other civil society organisations, LHR has begun developing a survey tool that can be used to collect data on this poorly communicated but growing human rights issue.

It is important to know how many people in South Africa are affected by statelessness but it is very difficult to determine this because people are often unaware that they are stateless or what this means. This initiative will require cooperation with Home Affairs and will assist LHRs efforts.

Populations of concern include Zimbabwean-born migrants with foreign parentage, orphans and vulnerable children, stateless migrants, children of migrants, children of single fathers, victims of ID fraud, communities in border areas and unaccompanied foreign minors.

The movement of persons within the Southern Africa region is common, whether for economic or political reasons. The exclusionary and restrictive citizenship laws of South Africa and neighbouring countries often result in automatic loss of citizenship or the inability to access birth registration. It is for this reason that LHR has reached out to regional bodies to raise issues, including the importance of universal birth registration. Regional cooperation is imperative for preventing and reducing statelessness. LHR networks with other civil society members across Africa to advocate the need for a regional legal instrument which promotes access to the right to nationality.

LHR had the opportunity to address the issue of the unlawful detention of a stateless person at the Lindela Repatriation Centre, representing a client that had been detained for seven months without remedy. The detention of stateless persons is unlawful as their deportation is impossible. When detained, this often exceeds 120 days.

In 2013, Zimbabwe adopted a new Constitution allowing for dual nationality by birth. LHR will continue to monitor the practical implementation of this change in law.

South Africas Constitution and the rights it enshrines provide a fertile ground for the development of law and policies that address not only the reality of statelessness in South Africa but also the injustices of the past regarding citizenship and documentation.


Human rights education and advocacy form an integral part of LHRs work

PRESENT CONCERNS

In July 2013 the Home Affairs minister announced the roll out of new smart ID cards. It is likely the necessary conversion process will result in many more IDs being blocked as all South Africans statuses are reviewed. At the time of the report, Home Affairs was in possession of more than 400 000 uncollected ID booklets.

THE PROBLEM OF BLOCKED IDS

Many people will remember the 2009 incident in KwaZulu-Natal when a distraught man committed suicide after a long wrestle with Home Affairs to register his birth and obtain an ID. A Home Affairs official tore up his application because he did not meet the requirements to satisfy the burden of proof. Home Affairs demanded that his parents be present for the application. His parents had long since died without having registered his birth. Ultimately, he was unable to prove his nationality.

For him and many others, it seems death is more bearable than a life without identity.

People with blocked IDs experience the same kind of difficulty in proving their identity once the ID has been blocked. Anyone can become a victim of Identity blocking. If your ID number is being used fraudulently, it can be blocked without your knowledge. While addressing ID fraud is necessary, it is equally important to protect innocent peoples access to nationality and the right to just administrative action.

Current requirements to unblock an ID or resolve a duplicate ID includes an originally issued birth certificate (a recently issued certificate will not be accepted), a clinic card or maternity certificate, copies of both parents IDs and a witness 10 years the applicants senior or older. The requirements can not always be met because many applicants were born at home and in rural areas that do not possess maternity certificates or clinic cards as a means of verification. In these cases it becomes impossible to prove their nationality. In most cases they have no claim to nationality in any other country and are rendered stateless.

PROPOSED ACTION

In terms of Section 20 of the Constitution, no citizen may be deprived of citizenship. Home Affairs effectively deprives applicants of nationality through ID blocking. This results in the affected person being unable to travel, study, work, marry or even register the births of their children.

Given the gravity of the negative effects, it is imperative for the government to respond urgently. It is difficult to estimate how many people in South Africa could potentially be stateless because of ID blocking. In order to decrease the numbers of affected people, the government may look to both domestic and international law for assistance. Both the Promotion of Administrative Justice Act (PAJA) and the two United Nations Conventions on Statelessness contain helpful provisions in this respect.

PAJA compels Home Affairs to provide affected persons with written reasons for administrative decisions and to inform them of the remedies that are available to them. If officials follow this basic procedure already provided for by PAJA it will significantly decrease the number of people left in limbo and confusion. It will also force the relevant Home Affairs official to conduct proper research and investigations preventing the arbitrary deprivation of nationality.

If preventative steps are not taken, many South Africans risk statelessness.

The right to nationality is inextricably linked to the rights to human dignity, equality and freedom. In a democracy founded upon these values, we need to ensure that all our rights are protected and to remember that the right to nationality is a key that unlocks our access to all other rights.

Liesl Muller is an attorney with LHRs Statelessness Project


Strategic and public interest litigation has become an important part of LHRs work within its various programmes.

However, public interest litigation must be seen in the larger context of a multi-pronged approach to human rights protection and access to justice.

While the courts remain ready to offer protection to those whose rights have been violated, it is important not to lose ground in the precedents already established. In particular, constitutional litigation that attempts to claw back on progressive precedents set by the courts.

Organisations like LHR needs to be vigilant to ensure continued progressive expansion of the rights-based approach to government while looking for new means of ensuring individual accountability in human rights protection.

In February 2013, LHR was approached by Arms Deal experts Andrew Feinstein, Paul Holden and Hennie van Vuuren who had been subpoenaed to testify before the

ARMS PROCUREMENT COMMISSION

2013 IN

REVIEW

Arms Procurement Commission of Inquiry chaired by Judge Willie Seriti of the Supreme Court of Appeal. The Commission had been tasked by President Jacob Zuma to investigate allegations of corruption surrounding the Strategic Defence Procurement Package (SDPP), also known as the Arms Deal, dating from the mid-1990s.

Feinstein, Holden and van Vuuren have written extensively on the Arms Deal and its subsequent fall out. In January 2013, at the Commissions request, Feinstein and Holden submitted written representations including thousands of pages of documentary evidence upon which they had relied in writing their books. They had hoped this evidence would be used to guide the Commissions investigations.

The three men were subpoenaed to testify before the Commission in March 2013 but delays led to hearings only beginning in September. By this time, the sequence of witnesses had changed so that only state witnesses would appear in Phase I of the hearings that looked into the rationale of the deal while Phase II would look at allegations of corruption. LHRs clients were scheduled to appear in Phase II but were invited to cross-examine Phase I witnesses.

LHR led the team in these cross-examinations.

A pre-hearing meeting was held in August 2013 when interested parties were allowed to express any difficulties with procedures surrounding the hearings. LHR made submissions that our clients would need access to documents in a timely manner to effectively cross-

examine witnesses. This included access to witness statements and accompanying documents upon which the witnesses relied.

Soon after hearings began in September, it became clear there would be a number of procedural difficulties arising from the Commissions rules. Interested parties were only allowed access to witness summaries that were usually less than a page long of often hundred of pages of supporting documents and only on the day of the witnesss testimony.

The rule requiring interested parties to cross-examine immediately after a witness had testified made it impossible to properly prepare. Requests for adjournments to study the documents were met with open hostility from the chairperson. Of increasing concern were rulings that did not allow our clients to rely on documents of which they were not the authors in order to cross-examine witnesses. This included the Debevoise-Plimpton Report and Affordability Report both of which had been in the public domain for years.

The year ended with our team being frustrated by the Commissions lack of access to documents, rulings limiting cross-examination and opposition to our clients continued participation in Phase I.

It became clear there would be a number of procedural difficulties arising from the Commissions rules.

StrategicLitigationProgramme


The Arms Deal: A timeline

This timeline tracks the period between the purchase of arms during the Strategic Defence Procurement Packages and the events that ultimately resulted in the establishment of the Arms Procurement Commission.The timeline is taken from Paul Holdens book The Arms Deal in Your Pocket.

OCTOBER 1995The South African Air Force (SAAF) reviews its defence needs and decides it only needs to replace one tier of jets: the Cheetah trainers. Its review and request is completed and formalised.

OCTOBER 1995Jacob Zuma receives first payments from Schabir Shaik, which Shaik later claimed formed part of a pattern of loans to Zuma.

MAY-AUGUST 1996 French company Thomson-CSF (later renamed Thint Holdings) sets up local branches in South Africa by incorporating Thomson-CFS Holdings (Southern Africa) and Thomson (Pty). Thomson and Shaiks Nkobi Holdings enter into dealings that will make Nkobi the joint partner in all of Thomsons ventures in the country.

MARCH 1997 The SANDF, after receiving bids from 23 suppliers for the provision of a fighter/trainer jet, chooses four bidders to enter the next stage of evaluation. They are a joint Brazilian/Italian consortium offering the AMX-T aircraft; Daimler-Benz Aerospace offering the AT2000; Aero Vodochody, offering the L159; and the Aeromacchi/Yakovlev YAK/AEM-130. Neither of BAes [British Aerospace] submissions, the Hawk and the Jas Gripen, make the shortlist as they are considered to be far too expensive and not suitable for the SAAF.

JUNE 1997Cabinet approves defence review, which finds that the defence force does need to make extensive purchases to maintain its capability. Parliament approves the review two months later.

OCTOBER 1997President Thabo Mbeki opens tenders for the purchase of arms at an initial estimated cost of R12-billion.

OCTOBER 1997Apparently acting on the instructions of defence minister Joe Modise, the SAAF decides to revert back from its two-tier fighter training proposal to a three-tier training system. This meant the Hawk and Gripen could now be resubmitted as realistic options for the SAAF to purchase, according to Polityweb founder James Myburgh.

LATE OCTOBER 1997Further requests are sent out for information from arms companies to supply advanced light fighter aircraft: BAe now makes the short-list with the Gripen but the SAAF still favours other jets because of cost and operational ability.

MARCH 1998ANC MP Tony Yengeni visits DaimlerChrysler Aerospace in Brazil. He later gets a new Mercedes-Benz M-series 4x4 for half the price via a DaimlerChrysler Aerospace official.

MARCH 1998 BAe allegedly commits to a donation of R4.5-million to the MK Military Veterans Association Joe Modise was the life president of the Association. He intervenes just weeks later to ensure that BAes Hawk remains a contender in the evaluation process for the lead-in fighter trainers.

APRIL 1998Modise advises the team evaluating the fighter trainers to adopt a visionary approach to their task. He asks the team to draw up two evaluations, one of which does not take cost into account. Even so, the BAe offering is still second to Aeromacchis MB339FD, said to be the SAAFs first choice.

NOVEMBER 1998Cabinet approves the Arms Deal which carries a price tag of R30-billion. That day, Zuma, Shaik and arms dealer Thomson-CSF meet, according to information that emerged later in the Shaik trial, and Shaiks Nkobi Holdings gets a share in subcontractor African Defence Systems (ADS).

NOVEMBER 1998The auditor-general identifies the Arms Deal as being high-risk from an auditing point of view, and he requests to be allowed to investigate it.

MARCH 1999 Speaking in Parliament, Modise claims that the Arms Deal will only cost South Africa R500-million a year for 15 years.

MAY 1999 Yengeni belatedly enters into a deal to pay for his car seven months after he received it. This is apparently to quash rumours that he had received it as a gift from an arms supplier.

JUNE 1999Mbeki is elected president of South Africa and Jacob Zuma his deputy.

SEPTEMBER 1999Patricia de Lille presents Parliament with a dossier that contains allegations of extensive corruption in the Arms Deal negotiations. She calls for a full judicial investigation.

SEPTEMBER 1999Auditor-general Shauket Fakie gets authorisation from defence minister Mosiuoa Lekota to investigate the arms deal with carte blanche; just days later this is overturned by the SANDF.

NOVEMBER 1999De Lille hands her dossier to Judge Willem Heath of the Special Investigating Unit, which has the legal power to cancel any government deal it finds to be corrupt. This move prompts future investigations into the Arms Deal that culminated in the establishment of the Arms Procurement Commission.

SEPTEMBER 2011President Jacob Zuma appoints a three-member commission into the Arms Deal. The commossion is to be led by Judge Willie Seriti.

AUGUST 2013The Seriti Commission finally gets underway but is beset by numerous delays during the proceedings. It adjourns in November 2013 until the new year.


A six-year-olds mother was killed by Rwandan rebels and she fled to South Africa to be reunited with an aunt.

A 14-year-old came to South Africa with her father but disappeared during xenophobic attacks and she was left in the care of an uncle.

A seven-year-old fled to South Africa with her mother but was abandoned here and now lives with an aunt.

Advocate Ann Skelton, director of the Centre for Child Law, who argued the case on behalf of the eight children, said the application arose out of the need of these children for access to asylum seeker permits to be admitted to the education system.

The separated children have their own legitimate asylum claims but cannot get these processed as they are minors with no legal guardians.

The separated children are not the biological children of their primary caregivers but in some cases they are related to them.

The government, however, does not recognise them as dependants of their carers.

They have no legal documentation which provides for their status in South Africa and are thus refused entry to public schools.

It was submitted that this violated their basic rights, as enshrined in the constitution.

The Department of Education indicated it would abide by any ruling the court gave.

Home Affairs indicated it would at a later stage oppose some of the relief asked for but it has not yet filed any opposing papers.

LHR is representing the Southern Africa Litigation Centre (SALC) and Zimbabwe Exiles Forum (ZEF) in challenging a decision by the South African Police Service and the National Prosecuting Authority not to investigate a docket of alleged crimes against humanity committed against opposition members in Harare by Zimbabwe government officials.

Crimes against humanity are listed as international crimes and may be prosecuted in South Africa under the implementation of the Rome Statute of the International Criminal Court Act 22 of 2005. SALC had prepared a docket of witness statements and medical evidence to demonstrate a systematic attack against Movement for Democratic Change members, particularly in the Harvest House raid of March 2007, had resulted in crimes against humanity. After a lengthy period, both SAPS and the NPA refused to investigate the docket, stating it would require too many resources, that the evidence had been tainted by SALCs collection of it and it would be impossible to investigate the scene of the crime in Zimbabwe without the cooperation of the Zimbabwe government.

In the North Gauteng High Court, the state argued it did not have jurisdiction to investigate the allegations because it had not been proven that the perpetrators were in South Africa and that our law did not allow for anticipated presence as grounds to secure the jurisdiction of a South African court. The Court disgreed and found the state had jurisdiction to investigate the allegations even if it did not yet have jurisdiction to prosecute due to the absence of a perpetrator in South

ZIMBABWE TORTURE DOCKET

Africa. The same argument was attempted in the SCA in November 2013. The SCA agreed the state had jurisdiction to investigate and that a rational link between South Africa and the perpetrator and/or victim

was necessary to use resources for an investigation. It found that such a link did exist between South Africa and Zimbabwe due to the close ties between the two countries and its people.

Young asylum seekers score vourt victory

Pretoria News30 April 2013

Lawyers for Human Rights has scored a first-round victory for the rights of eight children seeking asylum in South Africa but who have been separated from their parents for various reasons.

The children aged from six to 16 may now for the first time enter South Africas education system.

The North Gauteng High Court ordered the education minister and Gauteng MEC for education on Monday to provisionally allow the registration and admission of the eight children in public schools this year.

The court also ordered the education minister to review within six months the admission policy for public schools to comply with the constitution, by making provision for child asylum seekers and refugees.

The court will at a later stage be asked to review the governments policy regarding all children who are dependants of asylum seekers but who have been separated from their parents and are now in the care of family members or other carers.

The children arrived in the country without any

documentation, which means they do not have access to services such as education and medical treatment.

LHR will ask the court to declare that all the children be assisted by Home Affairs to obtain documents in terms of the Refugees Act.

These documents would make life much easier for them in this country.

They would declare that these separated children were dependants of their primary caregivers.

As things stand now, schools are fined if they enrol these children, who have no documentation.

The court will be asked to interdict the government from issuing fines or punishments against schools that register these undocumented children who are dependants of asylum seekers and refugees.

In the case brought to the courts attention on Monday, the eight children hail from the Democratic Republic of the Congo (DRC).

In six of the cases, the children were orphaned when their parents were killed in the DRC.

They fled from that country and were in many cases reunited with relatives here.

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Landand HousingProgrammeLHR is representing the Somali Association of South Africa

and the Project for Conflict and Reconcilation in challenging the closure of the Port Elizabeth RRO in the Eastern Cape.

The closure was successfully challenged in the Eastern Cape High Court where the court found inadequate consultation had taken place with the Standing Committee for Refugee Affairs. The court found this was a required element of the Director-Generals decision to close the office and it had not been complied with.

This judgment was taken on appeal but leave to appeal was dismissed by both the High Court and the SCA. Home Affairs then informed LHR that it had taken a new decision to close the office after consultation with the Standing Committee. This decision was also challenged and the High Court found it had not complied with the requirements of public consultation. Home Affairs has taken the matter on appeal.

The Port Elizabeth RRO is open for adjudications but is not accepting new applications.

This case comes in the wake of two other closures in Johannesburg and Cape Town. Both closures have been found unlawful, although the Cape Town closure was only found to be unlawful due to the misleading

LHR assisted a Zimbabwean special dispensation permit holder who was dismissed from his job as a chef at a restaurant in the Department of International Relations and Cooperation in Pretoria. He had been working in the building since 2009 but was removed from employment because the buildings security coordinator stated that foreign nationals were not allowed to work in the building. He was not given a hearing or properly dismissed.

The matter was brought to the Labour Court unopposed. The court handed down judgment in May 2013 that the dismissal was automatically unfair due to discrimination based on his nationality. LHR continues to negotiate with the employer to enforce the judgment.

LHR applied to the Constitutional Court to be admitted as amicus curiae in the matter of Mail & Guardian v Chipu NO and others in which the newspaper challenged the

REFUGEE RECEPTION OFFICE DISCLOSURES

MAIL & GUARDIAN VERSUS CHIPU

KENNETH NYAKUNHUWA

nature of the public consultation process conducted by Home Affairs with local stakeholders. A new consultation process was conducted in December 2013 at which LHR presented submissions regarding the prejudicial effects the closure would have on asylum seekers and refugees based in Cape Town. A final decision by the Director-General is expected in January 2014.

decision of the chairperson of the RAB to deny access to its journalists to attend the refugee appeal hearing of Radovan Krejcir, a Czech national accused of serious crimes in South Africa and claimed refugee status based on political persecution in his country of origin.

The RAB based its decision on section 21(5) of the Refugees Act 130 of 1998 that requires confidentiality in all applications for asylum.

LHR sought to present arguments on the need for absolute confidentiality in refugee claims in order to allow RAB members to make assessments on the credibility of an applicant and to ensure applicants feel free to divulge their entire claims without fear of reprisals against them or their families. To advance these arguments, LHR attempted to introduce evidence not presented in the High Court regarding the poor quality of asylum adjudication by first instance officials as well as the difficulties in accessing the asylum system.

LHR was refused the opportunity to introduce new evidence or be admitted as amicus.

It found that the evidence tendered did not comply with the rules of court regarding the introduction of new evidence at the appeal stage. The Constitutional Court read in a discretion given to the chairperson of the RAB to admit journalists upon application. This is an interim measure pending the outcome of changes to the legislation.


it ensures compliance with court

orders, the advancement of the rule

of law and cementing gains made

through jurisprudence.

It is for this reason that LHR has continued to assist communities in opposing unlawful evictions.

Over the winter months of 2013, the City of Tshwane effected a number of unlawful evictions in various informal settlements around Pretoria. Although the communities differed, the Citys method of eviction was consistent.

Service providers appointed by the City carried out three mass evictions that affected roughly 600 families. Notices citing apartheid era legislation and legal principles

were issued to families, attempting to create the impression that the homes were not occupied and were in the process of being erected.

Urgent applications to instruct the City to rebuild the demolished houses and allow the residents to return to the land were brought before the North Gauteng High Court. LHR was successful in all three cases and the evicted occupiers were allowed to return.

The state of eviction: Prejudice and the right to housing

South Africa has a long and tumultuous history of evictions and forced removals.

The devastating impact of evictions on communities and the socioeconomic development of affected families is well recognised. From this, a fairly strong constitutional and statutory framework was developed to regulate evictions in both urban and rural environments.

Section 26 of the Constitution stipulates that everyone has the right to adequate housing and that the state must take reasonable legislative and other measures within its available resources to achieve the progressive realisation of this right. Further, it provides that no person may be evicted from their home or have their home demolished without a court order. The Prevention of Illegal Eviction (PIE) and Extension of Security of Tenure Act (ESTA) operationalise these provisions and adapt the constitutional prerogatives to the urban and rural context, respectively.

It is clear the state has an obligation to take steps towards the provision of adequate housing and to follow judicial procedures allowing the consideration of all relevant circumstances before eviction.

The framework in which the issue of evictions must be dealt with and the tension created between the rights and interests of private property owners, the state and occupiers are something the courts have struggled with for years.

The Constitutional Court has handed down a number of landmark judgments dealing with evictions and the law particularly PIE evictions is now clear. The trend of illegal evictions by both state and private property owners has continued and the judgments of South Africas courts rarely follow the impact of Constitutional Court precedents when dealing with these unlawful actions or granting eviction orders.

Three difficulties have arisen in giving full effect to the Constitution, PIE and ESTA that continue to undermine the security of tenure and the progressive realisation of the right to housing.

The first problem is the failure of our courts to deal with evictions within the constitutional framework. Lower courts tend to ignore clear provisions that prohibit evictions without a court order.

Seemingly at the basis of this is the subordination of the right to housing and the right to property. This disregards the constitutional imperative to balance these rights with some limitations being placed on private property owners to avoid too large a burden on the occupier.

This failure to balance competing interests results in particularly egregious violations of the right to housing in the rural context where legislation is intended not merely as a procedural mechanism to effect and regulate evictions but also, as the name suggests, a legislative mechanism of extending tenure security. When dealing with ESTA evictions, courts often appear to forget that rural occupiers enjoy constitutional protections that address historical inequalities. It is seldom that an

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The Land and Housing Programme has become increasingly involved in litigation concerning urban housing issues, land restitution and communal land disputes.

Since 2005, LHR has brought a number of cases leading to several landmark decisions shaping the way South Africas courts deal with issues around land.

This area of LHRs work deals primarily with the implementation of sections 25 and 26 of the Constitution. The slow realisation of restitution and land tenure reform coupled with the failure by both public and private bodies to follow clear legislative frameworks regulating evictions have precipitated many of these cases.

LHRs land work focuses on four broad areas of concern: Land restitution and tenure reform, urban housing and evictions, communal land rights and womens land rights. The sensitive issue of access and availability of land and its effective administration plays a dominant role within these areas.

LHR has focused its efforts on post-judgment implementation, the pegging of gains made in relation to evictions and the progression of restitution and communal land rights claims.

2013 IN

REVIEW

Court ordered engagement processes and follow-up reporting emanating from a series of Constitutional Court judgments took up a large part of our time in 2013. A number of court applications in reaction to unlawful evictions were also brought as part of an ongoing strategy to ensure compliance by both private and public parties and to cement the gains made in previous Constitutional Court cases.

LHR has taken on several rural eviction cases with an eye to developing jurisprudence and challenging aspects that do not comply with constitutional provisions.

URBAN HOUSING AND EVICTION

Within the area of urban housing and evictions, urban growth around Gauteng continues to place pressure on occupiers on the urban peripheries and on housing availability especially within the lower income bracket. The large number of people affected by the lack of adequate housing and suitable alternative accommodation has not declined and governments responsibility to ensure low cost housing has not been met.

To date, governments efforts have mostly been to evict those living in informal settlements not adhering to outdated and inadequate housing policies, rather than implementing planning to cater for the various housing needs and demands that exist. Private developers are also responsible parties in the eviction of large communities, usually to make way for middle-income housing developments. It is clear changes to urban planning and housing policies are needed and will form the focus of the next phase of the LHRs litigation strategy.

The aim of interventions to date has been to ensure both governmental and private persons follow due process when effecting evictions and to compel local government to properly manage and administer the limited rental housing under their control.

One example of LHRs successful attempts was the highly publicised Schubart Park evictions in Tshwane.

Schubart Park was a complex of high-rise apartment buildings managed by the City of Tshwane to provide low cost rental housing. The trouble began when tenants stopped paying rent after the buildings started falling into disrepair. In September 2011, a protest broke out after the City cut off the water supply and evacuated the buildings. An urgent application to be allowed to return was dismissed. All this resulted in approximately 4 000 people being rendered homeless. Tshwane gave accommodation to 170 families.

After several court appearances, the Constitutional Court found the evictions unlawful and declared that residents had a right to return. The parties began meeting in October 2012 under the guidance of Reverend Frank Chikane. A registration process to identify former residents has been opened and the parties are close to reaching agreement on a plan for alternative accommodation pending the residents return.

Post-judgment support and assistance to communities in opposing unlawful evictions as seen in Schubart Park, Marlboro, Pheko and Itireleng is vital as


LAND RESTITUTION AND POST-SETTLEMENT SUPPORT

Shortly after 1994, the government identified a target of 25-million hectares of land for transfer. This was apparently done in conjunction with the World Bank and represented 30% of the countrys agricultural land. At the time, land prices were typically between R2 000 and R4 000 per hectare. Averages would suggest the estimated total cost would have been around R75-billion. Inflation adjusted, that would be about R165-billion today.

Around five to six million hectares of land have been transferred to land claimants and land reform beneficiaries but most of this was state land and not really part of the 25-million hectares originally envisaged.

While LHR has made progress on some pending land claims, many communities experience serious problems after their claims are settled. The complaints are invariably the same: the claim is settled, a legal entity is established and only a few

people benefit from the settlement. Similar complaints regarding the commission are also raised. In a landmark judgment in 2013, the SCA upheld the appeal of the Baphiring community of the North West. The community was forcibly removed from their land during apartheid under the 1913 Natives Land Act. The community a thriving farming community until they were relocated was resettled in 1971. The forced resettlement destroyed the communitys agricultural activities, as the compensation land was not suited for their type of farming. In 1998 the community launched proceedings in the Land Claims Court for the return of their land.

After a number of court hearings spanning 2001 to 2010, the Land

Claims Court rejected their claim and held that the community should receive alternative redress. The SCA overturned this decision and referred the claim back to the Land Claims Court to deal with the claim in accordance with the guidelines laid down by the SCA. This case vindicates the communitys assertions that the return of the land can be done successfully if properly planned and funded. The judgment is hoped to form a template for the settlement of most rural land claims and will do much to avoid the regular failure of rural land restitution projects.

The case now heads back to the Land Claims Court and the state is compiling reports dealing with the issues set out in the SCA order.

LHRs restitution cases deal with bringing about greater accountability and regulation of post-settlement resources while highlighting problems regarding equality, post-settlement support, structural problems and ineffective depart

Documents

LHR 2013 Annual Report