South Africa’s Constitution, one of the most progressive in the world, is not limited to citizens. Rather, refugees and asylum-seekers have rights as well. They are documented below.
The Bill of Rights from the Constitution (Chapter 2)
Equality
9. (1) Everyone is equal before the law and has the right to equal protection and benefit of the law.
(2) Equality includes the full and equal enjoyment of all rights and freedoms. To promote the achievement of equality, legislative and other measures designed to protect or advance persons, or categories of persons, disadvantaged by unfair discrimination may be taken.
(3) The state may not unfairly discriminate directly or indirectly against anyone on one or more grounds, including race, gender, sex, pregnancy, marital status, ethnic or social origin, colour, sexual orientation, age, disability, religion, conscience, belief, culture, language, and birth.
(4) No person may unfairly discriminate directly or indirectly against anyone on one or more grounds in terms of subsection (3). National legislation must be enacted to prevent or prohibit unfair discrimination.
(5) Discrimination on one or more of the grounds listed in subsection (3) is unfair unless it is established that the discrimination is fair.
Human dignity
10. Everyone has inherent dignity and the right to have their dignity respected and protected.
Life
11. Everyone has the right to life.
Freedom and security of the person
12. (1) Everyone has the right to freedom and security of the person, which includes the right-
(a) not to be deprived of freedom arbitrarily or without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from both public and private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the right –
(a) to make decisions concerning reproduction;
(b) to security in and control over their body; and
(c) not to be subjected to medical or scientific experiments without their informed consent.
Important documents elaborating on the rights of Refugees are below:
The Refugee Act 130 of 1998
Statute of the UNHCR
Convention and Protocol relating to the Status of Refugees (UNHCR)
More specific information on the right to education, labour, documentation and health care is below.
Education:
Education is a basic right guaranteed under the Bill of Rights of South African Constitution (Chapter 2, Section 29):
29. (1) Everyone has the right-
(a) to a basic education, including adult basic education; and
(b) to further education, which the state must take reasonable measures to make progressively available and
accessible.
(2) Everyone has the right to receive education in the official language or languages of their choice in public
educational institutions where that education is reasonably practicable. In order to ensure the effective access
to, and implementation of, this right, the state must consider all reasonable educational alternatives, including
single medium institutions, taking into account -
(a) equity;
(b) practicability; and
(c) the need to redress the results of past racially discriminatory law and practice.
Non-citizens have a right to education and do not need a transfer card in order to attend school according to the Policy of Ordinary Public Schools (Government Gazette No. 19377 of 19 October 1998).
Paragraph 18 of the policy in that it allows the principal of a school to admit a learner even in the absence of a transfer card from the previous school that the learner attended.
The SASA defines a parent as –
(a) the parent or guardian of a learner;
(b) the person legally entitled to custody of a learner; or
(c) the person who undertakes to fulfill the obligations of a person
referred to in paragraph (a) and (b) towards the learner’s education at school.
This definition is wide enough to include any person, who accompanies a child to school, as a parent of that child.
The SouthAfrica.info webpage stipulates that a transfer card or last school report must be supplied in order to admit a child into a school. However, it adds that a child may be registered provisionally if these documents are not immediately available, and the parents must be given a reasonable time to submit them.
School fees are levied according to Section 5(3) of the South African Schools Act of 1996:
No learner may be refused admission to a public school on the grounds that his or her parent is unable to pay or has not paid the school fees determined by the governing body under section 39.
Section 39(1) further clarifies the payment of public school fees:
“Subject to this Act, school fees may be determined and charged at a public school only if a resolution to do so has been adopted by a majority of parents attending the meeting referred to in section 38(2)
(2) A resolution contemplated in subsection (1) must provide for –
1. The amount of fees to be charged; and
2. equitable criteria and procedures for the total, partial or conditional exemption of parents who are unable to pay school fees.”
A list of no-fee public schools can be found at the Department of Education’s website:
http://www.education.gov.za/Schoolinfo/Info/noschoolfees.asp
Healthcare
Healthcare is also a basic right under the Bill of Rights in Chapter 2, Section 27 of the South African Constitution:
27. (1) Everyone has the right to have access to -
(a) health care services, including reproductive health care;
(b) sufficient food and water; and
(c) social security, including, if they are unable to support themselves and their dependants, appropriate social
assistance.
(2) The state must take reasonable legislative and other measures, within its available resources, to achieve the
progressive realisation of each of these rights.
(3) No one may be refused emergency medical treatment.
The Refugees Act, No. 130 of 1998, has a specific reference to health care.
Access to ARVs:
The criteria for initiation of free, government sponsored antiretroviral (ARV) therapy in non-pregnant adults and adolescents is set out in the 2003 Operational Plan for Comprehensive HIV and AIDS Care, Management and Treatment for South Africa:
55.1 CD4 < 200 cells/ mm3 and/or symptomatic, irrespective of stage; or
55.2 WHO stage IV AIDS defining illness, irrespective of CD4 count; and
55.3 Patient prepared and willing to comply with taking antiretroviral drugs.
The criteria for initiation of antiretroviral therapy in children under 6 years are:
56.1 CD4 < 15% and symptomatic; or
56.2 WHO Pediatric Stage III AIDS defining illness, irrespective of CD4; and
56.3 At least one responsible person capable of administering child’s medication
For more resources on HIV/AIDs treatment in South Africa, including testing and treatment locations, please visit the South African Department of Health’s website: http://www.doh.gov.za/
Documentation
The following are requirements for refugee status determination, procedures, appeals, and rights of those granted asylum according to the Refugees Act, No. 130 of 1998:
No person may be refused entry into South Africa or deported if he or she is facing persecution or a threat to his or her physical safety or freedom in the country of origin. This includes persecution because of race, religion, nationality, political opinion, or membership of a particular social group. A threat to physical safety or freedom includes “external aggression, occupation, foreign domination or other events seriously disturbing or disrupting public order” in part or all of the country. (Refugees Act, No. 130 of 1998, Section 2)
Asylum-seekers who qualify for refugee status are those are unwilling or unable to be protected by their country or return to it due to justifiable fear of persecution for any of the reasons previously mentioned, or whose country is facing “external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order” in any of all of that country and is therefore force to leave and seek refuge elsewhere. This includes all dependants of anyone who fits these qualifications. (Refugees Act, No. 130 of 1998, Section 3)
In order to apply for refugee status, the applicant must apply in person at a Refugee Reception Office, have fingerprints taken, and those over sixteen years of age much bring two recent photographs in the correct dimensions. According to the Refugees Act, the Refugee Reception Officer must accept the application form for review (which directly opposes the use of bribery) and must assist the applicant if the form isn’t completed properly. (Refugees Act, No. 130 of 1998, Section 21)
Once a person has applied for asylum they must be granted an asylum-seeker permit (also called a Section 22) to have while waiting for the decision regarding their case. This means that the person is temporarily legal in South Africa and no action against him or her may be taken, although even this temporary permit must be renewed at regular intervals. In addition, no action may be taken against the person if an application is rejected, until after her or she has had the opportunity to appeal. (Refugees Act, No. 130 of 1998, Section 21)
If an asylum-seeker’s application is rejected, they must be given a document stating why the application was rejected, and a copy must also be given to the Standing Committee for review of the decision (Refugees Act, No. 130 of 1998, Section 24). Every asylum-seeker has the right to make an appeal with the Appeal Board and must be allowed legal representation if requested by the applicant. (Refugees Act, No. 130 of 1998, Section 26)
Once given asylum, refugees must be given a formal written recognition of refugee status, an identity document, and a South African travel document; are allowed to seek employment; are given full legal protection and the right to remain in South Africa; and are entitled to the same basic health services and basic primary education as South Africans. Those with refugee status also have the option to apply for an immigration permit after five years of continuous residence if it is determined that he or she will remain a refugee indefinitely. (Refugees Act, No. 130 of 1998, Section 27)
Information for the Refugee Reception Offices is below.
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Refugee Reception Offices
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The following is a letter to the South African Human Rights Commission indicating PASSOP’s stance regarding deportation of Zimbabweans and the granting of refugee status to Zimbabweans.
January 16, 2009
Attention: South African Human Rights Commission
RE: Deportation of Zimbabweans, Granting of Refugee Status to Zimbabweans
A Special Status for Zimbabweans Is Appropriate
PASSOP believes that those persons seeking asylum in South Africa from Zimbabwe should be granted refugee status under article 35(1) of the Refugee Act No. 130 of 1998, which allows the Minister of Home Affairs to “declare such group or category of persons to be refugees either unconditionally or subject to such conditions as the Minister may impose.” This provision clearly allows the Minister to determine that Zimbabweans qualify for refugee status. It is our position that the Minister should do so.
PASSOP is aware of current deliberations within the Department of Home Affairs to create a separate status to allow Zimbabweans to stay in the country, though it is not the official refugee status. PASSOP supports any status that allows Zimbabweans to remain in, reside in, and/or work and study in South Africa for as long as the crisis in Zimbabwe continues. In short, PASSOP supports any status that ensures Zimbabweans have the same rights as refugees until Zimbabweans are able to return to a safe Zimbabwe.
Zimbabweans’ Qualify for Refugee Status
Refugee Act and OAU Convention
Even if the Minister does not use the powers granted to her in article 35(1), PASSOP believes that Zimbabweans should qualify for refugee status. Both the Refugee Act and the Convention Governing the Specific Aspects of Refugee Problems in Africa (AU Convention), which South Africa ratified in 1995, define a refugee as a “person who, owing to . . .events seriously disturbing public order in either part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country of origin or nationality.” The current crisis in Zimbabwe, described below, clearly qualifies as an event seriously disturbing public order, thus qualifying Zimbabweans as refugees.
Because of political conflict, there is simply no rule of law present in Zimbabwe. During the election in March and the run-off election in June, Zimbabwe was engulfed in political violence, which has largely gone unpunished. This has led to a culture of impunity in the country.
As a result of the elections, a power-sharing agreement was signed on September 15, 2008. This agreement was to allow Robert Mugabe to remain president while Morgan Tsvangirai would assume the position of prime minister. This agreement was expected to restore stability and good governance in a country where both were rare. However, four months later, it is still unclear whether Tsvangirai will be prime minister. The only thing that is clear is that the country remains in disarray while Mugabe retains power. In a country where the members of government are in limbo, the collapse of the rule of law is complete.
In addition to the state support for this violence and the resulting impunity, the government has deteriorated to such a point that it is completely unable to ensure basic human rights, and in many cases, the government has actively participated in the violation of these rights.
The most recent example of the Zimbabwean government’s failure to protect the rights of its citizens is the well-documented cholera outbreak. The latest reports from the UN indicate that over 1700 people have died from cholera since August 2008 alone, although cholera is easily treated. There are instances of the disease in every province in Zimbabwe, and the rate of infection appears to be increasing, not decreasing. Clean running water is vital to prevent and to treat cholera, but Zimbabwe’s government has been unable to provide even this basic service, allowing cholera to continue essentially unabated. The unwillingness and/or inability of the government to prevent cholera or to facilitate treatment of the disease are evident by the continued spread of the disease and the growing number of deaths.
PASSOP believes that these events should qualify Zimbabweans for refugee status, as it is clear from the events described above that they are not merely seeking economic opportunities and are thus not economic migrants. All Zimbabweans are at risk if they return to their country, which is in an unprecedented humanitarian crisis that should be recognized as such by the South African government. As Zimbabweans, not only are they unable to access many of the basic rights guaranteed in international law, but the lack of the rule of law causes them to fear for their life and safety as well.
OAU Convention Relating to the Status of Refugees
Even under the traditional refugee definition, which the Convention Relating to the Status of Refugees, which South Africa acceded to in 1996, says is a person who “owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country,” we believe Zimbabweans should qualify. This language is also reflected in article two of the Refugee Act. Zimbabweans are fleeing to South Africa because they fear that, as Zimbabweans, their lives and freedom are in dire jeopardy. If they return to Zimbabwe, the basic state services do not function, including hospitals, sanitation, and water services. Without these services, each Zimbabwean’s life is in jeopardy, especially in light of the ongoing cholera crisis, simply by being Zimbabwean. Consequently, their nationality provides them with the appropriate justification to claim refugee status.
Zimbabweans Cannot Be Legally Deported
Regardless of the status given to Zimbabweans, both South Africa's international and domestic obligations should prohibit the government from deporting individuals to Zimbabwe. Article two of the Refugee Act prohibits South Africa from “refus[ing] entry into the Republic, expel[ing], extradit[ing] or return[ing] to any other country . . . if as a result of [such action, any] person is compelled to remain in a country where his or her life, physical safety or freedom would be threatened on account of . . . events seriously disturbing public order in either part or the whole of that country.” This principle of non-refoulement is also present in international law as the AU Convention specifically prohibits any party country from deporting individuals when there is an event seriously disturbing public order. As discussed above, the situation in Zimbabwe clearly qualifies as an event seriously disturbing public order. Thus, it is unlawful for the Department to continue deporting Zimbabweans.
It is also unacceptable for the Department of Home Affairs to continue deporting Zimbabweans while at the same time publicly recognizing that there should be a separate status for Zimbabweans. In the interim period before any new status is implemented, the Department must stop its deportation of Zimbabweans. This is especially true since neither the United Nations High Commissioner for Refugees nor the International Organization on Migration will voluntarily repatriate individuals to Zimbabwe. The fact that South Africa continues to forcibly return individuals to Zimbabwe is obviously in conflict with its proclaimed respect for human rights.
In sum, PASSOP believes that Zimbabweans qualify for refugee status, but it will support any status that grants Zimbabweans the same rights. However, PASSOP believes that the deportation of Zimbabweans must halt immediately.
Sincerely,
Braam Hanekom
PASSOP Chairperson
Labour
The right to employment opportunities under the Bill of Rights in Section 23, Chapter 2 of the South African Constitution.
Minimum Wage
As of 1 March 2009, the minimum wage has increased and is set to continue increasing annually. If a labourer works less than 45 hours per week he or she must be paid by hourly rate of R6,31. If a worker works 45 hours per week he or she must paid by monthly rate of R1231,70. The weekly rate is set at R284,23. Workers must be paid daily, weekly, fortnightly, or monthly on a designated payday and in rand. On the designated payday, workers must be given pay slips from the employer. The current wage is valid until 28 February 2010.
Shift Regulation
A worker may not work more than 45 hours per week in addition to 15 hours of overtime per week. This also means that a worker may not work over 9 hours per day if he or she works 5 days or less per week. If a worker works more than 5 days per week, they may not work more than 8 hours per day. Including overtime, total hours must not exceed 12 hours per day. Overtime wages must be 1.5 that of the hourly wage. Those under 18 years old may not work more than 35 hours per week. Workers must be at least 15 years old.
Breaks
Workers must be given a one-hour break after 5 hours of work (this break may be reduced to 30 minutes and may be skipped if fewer than 6 hours are worked per day and if agreed in writing). If a second break is due because of overtime, it may be reduced to 15 minutes. A rest period of 12 consecutive hours must be given daily, and a rest period of 36 consecutive hours must be given weekly.
Sundays and Public Holidays
Work on Sundays must be paid for in the following manner according to hours worked:
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1 hour or less—double the hourly wage
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1-2 hours—double the hourly wage for time worked
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2-5 hours—daily wage for a 9-hour day
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5+ hours—double the daily wage for a 9 hour day or double the wage of time worked excluding overtime (whichever is the greater amount)
On public holidays workers may only work if they agree to it and they should be paid double the daily wage. If they choose not to work on a public holiday they must be paid the normal daily wage.
Paid Absence
Workers may take an annual leave of absence of 3 weeks paid leave plus an extra day if a public holiday falls within this paid leave. Workers are allotted sick days according to the number of days worked per week times 6, per 36 months. A worker may take 3 days of full pay leave per year for family responsibility, which includes the birth of a child, a sick child, and the death of a spouse, parent, grandparent, child, grandchild, brother, or sister. Maternity leave is a period of four months beginning four weeks before the expected date of birth and ending at least six weeks after the birth.
Termination of Employment
If a worker is employed for less than 6 weeks, one weeks notice is required. If employed for 6 months to one year, two weeks notice is required. If employed for one year or more, four weeks notice is required. Workers may challenge the lawfulness of a dismissal (in terms of Chapter VIII of the Labour Relations Act, 1995 or any other law) if he or she believes it to be unfair. If termination is for operational reasons, one week’s wages for every year of completed employment must be paid. A certificate of service including outlined aspects of the employment and a pay slip must also be given to the worker. The employer must keep a copy of the pay slip for 3 years.
Sectoral determinations stipulate the regulations and wages that govern farming, domestic work, wholesale retail work, contract cleaning, private security, and leadership positions and may differ from those outlined above.
See the links at the Department of Labour’s website at
Labour problems? Contact the CCMA:
Under a legal agreement reached in 2008, the CCMA will represent migrants in labour disputes with their employers. Migrants who believe they have been mistreated should contact the CCMA immediately.
http://www.ccma.org.za/
CCMA head office contact information:
The National Registrar
Physical address:
CCMA House
20 Anderson Street
Johannesburg
2001
Postal address:
Private Bag X94
Marshalltown
2107
Telephone: (011) 377-6650
Fax: (011) 834-7351