In the past two and a half weeks, the South African Police Service (SAPS) have conducted raids in 20 provinces across the country, resulting in the arrest of more than 3700 foreign nationals for various immigration violations. The operation, which was launched on 8th May 2023 was led by the Ministry of Home Affairs and was conducted by police officers, immigration officers, military personnel and the South African National Defence Force (SANDF).

The SAPS said the operation was aimed at apprehending undocumented and illegal foreigners living in South Africa; those who had entered the country on tourist and student visas, and those who were working without the required permits or visas. The majority of those arrested were from countries in the African continent.

Reacting on the arrests, Home Affairs Minister, Mr. Mthimkulu, stated that the arrests were meant to remind foreigners not to take advantage of the country’s hospitality and to ensure that visitors abide by the laws of the country. He further noted that those arrested will be processed and those found violating the laws will either appear in court or be deported.

Even though the authorities stated that most of those arrested were either working or living without the relevant permits or visas, some outcry has been heard regarding human rights violations. For example, those of arrested may have been moved without being informed of the purpose or the nature of the raid. While some are of the opinion that there is nothing wrong with what the authorities did, others argue that people should be made aware of the proceedings in this kind of operations.

In conclusion, it is evident that the raid is a reminder to all foreigners that they have to comply with the applicable laws in regards to working, living and visiting South Africa.

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Government decision was an opportunity missed to implement progressive suggestions. SA experiences strong migration flows from neighbouring countries, leading to competition for scarce resources and periodic violence against foreigners, says the writer. 

The African proverb, “When elephants fight, it is the grass that suffers,” aptly describes the consequences of the Zimbabwean exemption permit (ZEP) holders’ battle with the department of home affairs. 

On Friday, the high court issued its judgment in the case brought by the Helen Suzman Foundation. The foundation’s lawsuit was a response to the government’s decision in November 2021 to discontinue the special dispensation programme for Zimbabweans. These permits had been granted since 2009, allowing over 177,000 individuals to reside in SA. The foundation’s argument focused not on challenging the decision itself, but rather on the way it was made.

The court ruled in favour of the foundation, highlighting four grounds on which the decision was deemed flawed: it was procedurally unfair, irrational, and made without prior consultation with the affected individuals; it violated the constitutional rights of the ZEP holders and their children; it failed to consider the impact on the ZEP holders; and it contained material errors of fact regarding conditions in Zimbabwe, rendering it irrational.

Consequently, the court sent the decision back to the minister of home affairs for reconsideration and granted a 12-month extension to the ZEP holders from the date of the order.

While ZEP holders rejoiced, the reaction from the broader society was one of frustration and anger. Ultimately, the impact of this issue will be to negatively affect efforts for a more cohesive society. It is the government’s stated objective regarding the management of regional migration in a manner that ensures a balance between the economic interest of the local citizenry and the regional role that SA plays in Sadc and the continent. Achieving a consensus between these competing objectives is central to its migration policy, as outlined in the white paper on international migration.

Unfortunately, this was a missed opportunity to implement progressive suggestions from the white paper. These suggestions aimed to reduce illegal migration, combat corruption, reduce the trade in false documents, limit the abuse of migrants in the labour market and alleviate downward pressure on salaries for locals and foreigners. 

Such objectives would contribute to a more cohesive society, dispelling the growing sentiment that all African migrants are irregular and undesirable.

Debates arose on whether the decision was reviewable, as it appeared to be a policy decision rather than an administrative one. However, the court determined that it fell within the scope of an administrative decision and exercised its powers under the Promotion of Administrative Justice Act to review and set it aside.

Nevertheless, the question of what the ZEP truly represents remained unexamined. Is it a waiver or a permit? In my view, the ZEP and similar special permits are exemptions, as stated in section 31(2)(c) of the Immigration Act (a waiver), rather than permanent residence exemptions as described in section 31(2)(b) of the act. Had it been the latter, there would have been no need to impose conditions limiting ZEP holders from working, studying, or running  businesses.

Additionally, if the ZEP were indeed a waiver, it raises the question of whether it was rational to restrict ZEP holders from applying for permanent residence through the ordinary channels. Waivers are commonly used in visa applications to allow applicants to submit without meeting certain requirements. If a person issued a general work visa after obtaining a waiver can apply for permanent residence after five years, why shouldn`t the same opportunity be available to ZEP permit holders?

Answering these questions would provide clarity on the legal rights of permit holders, which is particularly relevant as the Lesotho Special Permit holders face a similar situation with visas expiring in December 2023. Furthermore, aside from Zimbabweans awaiting clarity on their future beyond June 2024, there are also Angolans whose unresolved situation dates back to 2018. The purpose of the law is to provide certainty, yet the situation surrounding these special permits has been far from reassuring.

Migration flows

Fortunately, a solution lies within the white paper on international migration. The government acknowledges that managing economic migration from Sadc is the most challenging policy area. Despite SA’s historical labour migration within the region, building consensus on a clear policy and strategy has proved difficult. The country’s diverse society emerged from historical migration patterns in mining, agriculture, hospitality, construction, and domestic work. Hugh Masekela’s song, Coal Train, captures this phenomenon. As the biggest and most advanced economy in the region, SA experiences strong migration flows from neighbouring countries, leading to competition for scarce resources and periodic violence against foreigners.

The white paper proposes three policy interventions to address this challenge. 

First, a regularisation programme modelled after the Zimbabwean Special Dispensation Permit, Lesotho Special Permit and Angola Special Permit aims to tackle irregular and illegal immigration. While these interventions have made some progress, full success remains elusive. 

Second, an expanded visa regime would cater to economic migration from Sadc, with a quota-based system for piloting three visa types for Sadc nationals.

Third, stronger enforcement of immigration and labour laws is critical to prevent citizens from being disadvantaged by employers who pay lower wages to economic migrants. Enhanced compliance with immigration and labour laws would decrease irregular migration, while providing additional pathways for semi-skilled individuals, who constitute a significant portion of ZEP holders, could discourage illegal entry into the republic.

Implementing these interventions is expected to relieve pressure on the asylum seeker management system, reduce downward wage and employment pressures in the lower end of the economy, and enhance social cohesion. 

The state of affairs benefits no-one. Affected migrants face prolonged uncertainty, lacking visas or a clear pathway. Citizens feel that their grievances are not being taken seriously by the government and courts, while the government must grapple with antiforeigner sentiments. 

While this battle may have been won, the war against decaying social cohesion may have been lost. In any war, there are no winners, only widows.

In a new episode, specialists caught a vigorously over-burden transport that was endeavoring to sneak more than 100 unlawful Malawian outsiders into South Africa. The transport was stopped at a barricade, featuring the continuous issue of unlawful migration and the outcomes of an open line strategy.

The people installed the transport had paid an expense to acquire unlawful passage into South Africa, exploiting the permeable line among Malawi and South Africa. The inundation of unlawful foreigners from Malawi has turned into a disturbing pattern, inciting specialists to make a move to resolve the issue.

The interference of the over-burden transport fills in as a distinct sign of the moves looked by South Africa because of its open line strategy. While such a strategy advances the free development of individuals, it likewise sets out a freedom for unlawful exercises, including illegal exploitation and unlawful movement.

The episode highlights the requirement for more grounded line control gauges and further developed authorization to check the unlawful section of people into the country. South African specialists have been working tenaciously to resolve this issue, perceiving the potential security gambles and monetary weights related with unregulated movement.

Unlawful migrants frequently resort to paying excessive charges to human bootleggers who vow to work with their entrance into South Africa. These runners exploit the distress and weakness of those looking for a superior life, taking advantage of their fantasies for individual increase.

To actually handle this issue, it is crucial for address the underlying drivers of unlawful movement. Upgrading monetary open doors and security in nations like Malawi can assist with lessening the impetus for its residents to look for unlawful passage somewhere else. Also, expanded collaboration between South Africa and adjoining nations, including knowledge sharing and joint tasks, can assist with keeping carrying networks from working uncontrolled.

South Africa should work out some kind of harmony between keeping an open line strategy and protecting its public safety and financial interests. By executing far reaching movement changes, including stricter boundary controls and designated help programs, the nation can address the difficulties presented by unlawful migration while as yet maintaining its obligation to philanthropic qualities.

The new episode fills in as a reminder for South Africa and features the squeezing need for a comprehensive way to deal with migration the board. Just through deliberate endeavors could the country at any point really tackle the issue of unlawful movement and advance protected, lawful pathways for those looking for a superior future.

The Constitutional Court has ordered Parliament to revise Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 to ensure equal access to the office of the family advocate by children, regardless of their parents` marital status. The case stems from a legal dispute between two former lovers who share two minor children. Their legal dispute over their children reached the Constitutional Court after the mother challenged the constitutionality of section 4 of the act.

The Constitutional Court has confirmed a Gauteng High Court ruling which declared Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 is unconstitutional and invalid.

According to the apex court, the act precluded children of unmarried parents and married parents, who were not going through a divorce, from accessing the services of a family advocate in the same way children of married parents, who were divorced or going through a divorce, did.

The family advocate is a state office that helps parties resolve disputes over access, custody, and guardianship of children.

Under section 4 of the act, as it currently reads, children of divorced parents and parents going through a divorce can seek the services of the family advocate by completing a form and filing it directly with the office.

However, unmarried parents and parents who are married but not going through a divorce must petition the High Court directly for relief to access the services of the family advocate.

This can be costly and lengthy.

The Constitutional Court ruling, which was issued last week, followed an application by the University of Pretoria-based Centre for Child Law.

The parents cited in the case ended their relationship in 2014, having been romantically linked since 2007.

Their minor children were born in 2009 and 2011.

According to court documents, the children spent most of their upbringing at their mother`s home but the father, a professional rugby player, had full-time access.

Litigation history

In February 2020, the mother got married and started making plans to emigrate to Australia along with her husband and the two children.

However, the father of the children opposed the idea and proposed the children move to his home in George, the Western Cape.

`Unable to secure [the father`s] consent to relocate with the children to Australia, [the mother] approached the High Court for relief,` court documents read.

The mother`s application was in two parts, with Part A aimed at securing the services of the family advocate and Part B seeking authorisation to relocate.

Part A of the case was set for a hearing in August 2021 but was adjourned because the presiding judge had concerns with the constitutionality of section 4 of the act.

At this point, the Centre for Child Law joined the case as a friend of the court.

It argued the children of the two respondents should be able to access the services of the family advocate, regardless of their parents` marital status.

The Gauteng High Court in Johannesburg agreed, and the case was taken to the Constitutional Court for confirmation.

In a unanimous judgement, the apex court gave Parliament 24 months to remedy the constitutional deficiency so that all children can enjoy access equal access to the family advocate.

In commending the judgement, the Centre for Child Law said it was `extremely important`, adding `the function of the family advocate`s investigation and report is intended to establish the best interests of the child`.

The Constitutional Court judgement, however, is not to be applied retrospectively. 

Stanley Malemetja from the Centre for Child Law said this effectively meant it would not apply to cases that commenced prior to its issue.

I was a foster parent for young refugees who came to Kent via the Channel, but were too old to live on their own.

One of them, a young boy from Afghanistan, saw his family killed in front of him. He told me: “The Taliban finished my family. But one day, maybe I can get married and start a new family of my own.” For him, nothing was more important than finding a place to call home.

For a boy living with such trauma, the Rwanda plan would have been devastating. Imagine thinking you had found a safe place where you could put down roots, only to learn you could be sent to another country, thousands of miles away, all because you had been unfortunate enough to take a dangerous journey?

Actually, I don’t have to imagine, because I know. I am a survivor of the Rwandan genocide. Although I came to the United Kingdom by plane to live with my British in-laws, I was widowed and alone. I, too, know what it’s like to have your home taken from you and the importance of being secure enough to build another one.

If the treatment of refugees in Rwanda turns out to be less than advertised, how will they be able to speak out?

When I heard the Court of Appeal had ruled against the government, I was relieved for two reasons. Firstly, because no asylum seeker should live with the uncertainty of being sent on another long journey again, applying for asylum again, and as the judges noted  facing a real risk of being sent back to the country of persecution again. Worse yet, conscripted by your host government into armed groups destabilising the region as was the case of Burundian refugees in Rwanda.

Secondly, I was relieved, because the reality is that Rwanda is not a safe country for refugees. In 2017, when Israel tried a similar scheme, it was reported some of those deported to Rwanda were almost immediately expelled and pushed back into the arms of smugglers. In 2018, Rwandan police shot and killed 12 refugees protesting conditions. Even the accommodation supposed to house asylum seekers from the UK is tarnished with the repressive and cynical nature of the regime. Last year orphans of the Rwandan genocide were evicted from their hostel in order to make way for UK asylum seekers.

Reporters Without Borders call Rwanda’s media landscape “one of the poorest in Africa”  due to the levels of oppression. If the treatment of refugees in Rwanda turns out to be less than advertised, how will they be able to speak out?

According to the Home Office’s own estimates, the Rwanda plan would cost £196,000 per refugee deported. As someone who has experienced displacement and the icy grasp of oppressive regimes, I can tell you that the right to speak your mind and feel at home is worth more than that.

Although I have seen more horror and tragedy than most people encounter in their lifetime, in the UK I have thrived. I know this country is full of welcoming communities that can help other refugees do the same. I urge the government to accept the court’s decision, and focus on creating a more compassionate, fair and effective asylum system right here at home instead.