‘Please GO HOME and BUILD Africa’: Criminalising Immigrants in South Africa

Abstract

In April 2015, a Whatsapp text message instructed millions of African immigrants in South Africa to go home. The message drew on xenophobia and afrophobia to criminalise African immigrants in South Africa. Broadly, immigrants are seen as breaking the law by illegally crossing a sovereign border and becoming illegal foreigners. Having entered the country without authorisation (‘papers’), these foreigners become perceived as drug dealers, traffickers of children, squatters, facilitators/exploiters of an informal economy, and thieves stealing opportunities from South Africans. This article identifies three principle techniques of criminalising immigrants: 1) immigrants being compelled to purchase immigrant documents through illicit means to stay legally in South Africa; 2) the South African Police Service conducting raids such as Operation Fiela and arresting foreigners; 3) the South African Police Service, along with the Department of Home Affairs officials, illegally detaining immigrants. Together, these techniques contribute to the criminalisation of African foreign nationals. These techniques are increasingly characteristic of governance in the global south and explain how a Whatsapp message can reverberate throughout South Africa.

Introduction

On 12 April 2015, a Whatsapp text message from the Patriotic Movement, Pan Local Forum, Unemployed Workers Forum, Anti-Crime Movement, and others went viral, telling African foreigners to return to their home countries. It said:

Happy Sunday all

Dear Neighbour from Africa & Other Parts of the World We have travelled the world and have not found one country that allows the floods of humans across its borders as South Africa is experiencing. Even in war torn part[s] like Syria, Ukraine, Yemen and Somali.

We were 7 million people in Johannesburg City in 2011; today we have an estimated 13 million. Of course our infrastructure and services must collapse. If you were quite prepared to disrespect the first Law of the sovereignty of our country why should you respect the rest of our laws? We have just come out of an oppressive bloody Apartheid system while you north of the Limpopo had been enjoying freedom since 1960, 1975 and 1981 respectively.

We remember those proud milestones. But we are all still developing countries and our development must be impeded with so many strangers and illegals in our midst. In Johannesburg alone you have taken over entire suburbs: Yeoville, Berea, Bez Valley, and Turfontein amongst many. You have even moved into rural parts of our country that have 80% unemployment; and there are no visible signs that you have jobs either. But there are signs of drug-dealing, prostitution and other criminal acts that you conduct – sometimes in cahoots with desperate locals. Your presence at this moment in our history is most destructive and destabilising to our country and our citizens. …¹

We are pleading with you to return to your home countries – as our King Goodwill² and many other great leaders have asked. Go and build up those countries so that we can all live in economic, social and political prosperity and peace – as neighbours. The genocide in this corner of Africa will be far worse than what happened in Rwanda in 1994. Then the entire continent will be condemned to ashes. Is that what you want? Our people built this country with their blood and tears, but built [sic] it we did. For you to come here and take jobs at cheaper rates, use and abuse our scarce resources (schools, hospitals, shelters, clinics, parks, streets – even our churches and shacks and open spaces to live in while shops are literally running out of food) and further add to already high crime rates, IS WRONG and IMMORAL. South Africans not fully employed or who were found guilty of crimes, were recently repatriated from Nigeria and rightly so.

Our people are preparing for war against all foreigners (from Bulgaria to Pakistan and Bangladesh to Africa north of the Limpopo) and we are all very scared. Please GO HOME and BUILD Africa. Millions will die if you don’t. This we can guarantee.

Good luck with your return

Patriotic Movement

Pan Local Forum

Unemployed Workers Forum³

This message came to our attention from a local civil society organisation (CSO), the Adonis Musati Project (AMP), based in Cape Town. Many of AMP’s employees had received this text and were afraid to come to work. We wondered how this nebulous movement⁴ could obtain the contact information for these individuals. And what did the senders of such a text hope to accomplish? Moreover, what does the message reveal about the public perception surrounding African immigrants in South Africa? It has become increasingly apparent that immigrants are subjected to violence not only by South African citizens, but also by various state actors. For instance, eight former police officers were sentenced to 15 years in prison for handcuffing a Mozambican immigrant to the back of a police van, dragging the man, and then beating him to death in a police holding cell. As Sewell Chan describes:

[t]he case drew worldwide attention after a bystander’s video of the arrest and dragging was widely shared on social media. It highlighted the xenophobic violence that many migrant workers face in South Africa, which is struggling with high rates of violent crime and a troubled legacy of police brutality two decades after the end of apartheid.⁵

We argue that the increased number of African immigrants in South Africa has, in fact, drawn on xenophobia and afrophobia to criminalise immigrants.⁶ There is a widespread perception of immigrants as criminals who break the law by illegally crossing a sovereign border, thus becoming ‘illegal foreigners’. The Whatsapp message asserts that ‘your presence’ is ‘destructive and destabilising to our country and our citizens’. Having entered the country without authorisation (‘papers’), these foreigners become perceived as drug dealers, traffickers of children, squatters, facilitators/exploiters of an informal economy, and thieves stealing opportunities from South Africans. These sentiments may also be linked to increased job insecurity by disenfranchised native citizens and a belief that ‘refugees’ receive special support from the South African government.⁷ Yet little attention has been focused on the political expediency for governments in both the global north and the global south of targeting foreigners in these ways and structuring immigration governance accordingly.⁸ The criminalisation of immigrants allows some government officials to direct attention away from corruption and other pressing issues, including state crimes. This is not to suggest that all officials act in a consistent manner, and there are often conflicting mandates for the Department of Home Affairs (DHA) functionaries, South African Police Service (SAPS) officials, judges, and lawyers. There does, however, seem to be some consistency with respect to policing practices that target immigrants in densely populated immigrant communities, such as Belville in Cape Town and Hillbrow in Johannesburg, according to mid-ranking SAPS officers.⁹ This activity results in foreigners becoming easy scapegoats, conflating immigrants and criminals.¹⁰ Arrest figures reported from raids in these immigrant communities typically report criminal arrests for the possession of drugs or firearms, as well as the detention of illegal immigrants. This, in turn, functions as a way of bolstering or appearing to bolster claims of SAPS’s effectiveness against the public perception of incompetence.

Framing the Criminalisation of Immigrants

We have recently documented the illicit market in immigrant documents that operates in Cape Town. It is characterised by a blurring of licit and illicit documents rooted in the legal ambiguity of foreign nationals and their ability to gain and maintain legal status. South Africans often refer to African immigrants as ‘refugees’, whether they have achieved this status or not. Legally, the term refugee refers to someone lawfully present in South Africa who is fleeing political or social persecution in his/her home country. A person applies for an asylum-seeker (Section 22) permit, which can be renewed various times before the DHA makes an actual refugee status determination and the person receives a refugee status (Section 24) permit. In this context, refugees become conflated with economic migrants. The South African Constitution, and South Africans more generally, do not consistently differentiate the legal status among immigrants for a range of everyday purposes, ranging from healthcare access to informal labour. (In this article, we therefore use the term ‘immigrants’ as an umbrella category to refer to people who have crossed into South African sovereign territory.)

It is this legal ambiguity that has facilitated efforts of the African National Congress and specifically Zulu King Goodwill Zwelithini and others to push a nativist agenda among impoverished South Africans. Although this is neither surprising nor particularly novel,¹¹ the way that immigrants have been criminalised by being compelled to purchase immigrant documents through corrupt DHA officials, by criminal raids, and by illegal detentions suggests the emergence of a set of techniques of governance that correspond with other settings in the global south. As legal scholar B.S. Chimni argues in his focus on the south, inherent in the refugee approach is ‘the founding myth of difference, complicit in the strategy on containment pursued by the rich Northern states’.¹² By viewing African immigrants and the subgroup of refugees (and asylum-seekers) as different and criminal, some government functionaries foster inhumane distinctions and illegal practices.

Building on the scholarship on the 2008 xenophobic violence as politically motivated,¹³ we assert a post-2008 typology of governance in which a ‘new normal’ is rooted in legal ambiguity. As Olivier de Sardan contends, the ‘embeddedness of corruption’ among civil servants can lead them to ‘reprimand’ anonymous users who are not informed of ‘practical norms’.¹⁴ By having obtuse, evolving, and inconsistent immigration policies, a normalised ambiguity has emerged for stakeholders with a blurring of licit and illicit economies. No one seems clear about what the laws are. Corruption, therefore, is driven by demand for its products – such as immigration status documents – and the capacity to supply them.

Moreover, the syncretisation of immigration, governance, and criminology has been escalating. For instance, in the draft amendment to the South African Refugee Act posted on 6 August 2015, an asylum-seeker will have only five days to make an application (Section 2[i]) and must ‘satisfy the RSDO [Refugee Status Determination Officer] that there are compelling reasons for such entry’ other than through a designated port of entry (Section 2[h]).¹⁵ These proposed changes will only increase the likelihood of immigrants becoming criminals, because of the limited timeframe to make an application. The changes will also create more opportunities for corruption, because refugee-status determination officers cannot easily supply asylum-seeker permits to satisfy the urgent demand. This demand has become acute owing to a limited number of refugee reception offices (RRO) in South Africa.

South Africans face a postcolonial conundrum of how to handle immigrants who arrive across borders that are inherently porous, of colonial origin, and paradoxically symbolic of sovereignty. Legal scholars, such as Catherine Dauvergne, suggest that ‘migration laws and their enforcement are increasingly understood as the last bastion of sovereignty’.¹⁶ This argument stems from nation-state functionaries perceiving a loss of control over policy initiatives. Lawyers for Human Rights (LHR) attorney David Cote notes, ‘in light of the ongoing access problems [referring to asylum-seeker permits], so-called “illegal foreigners” may not be that illegal. They are just the victims of a vicious cycle of political unwillingness to improve the system’.¹⁷ LHR and other advocacy groups argue that the DHA continues to ignore court orders and refuses to comply with international norms, creating corruption.¹⁸ Although these immigration problems are rooted in global contexts, the congestion of immigrants in South Africa offers insights into the future of African continental migration flows. For example, Burundi’s President Pierre Nkurunziza decided to run for a third term, which he won in July 2015, causing more than 240,000 people to flee the country.¹⁹ In early February 2016, Zimbabwean President Robert Mugabe admitted that his government needed foreign food aid owing to the drought affecting southern Africa,²⁰ causing Zimbabweans to continue to migrate to South Africa. As dislocations like this continue in Africa, the number of Africans immigrating into South Africa will increase.

Although scholars in Europe and the United States have examined attempts to regularise immigrants through bureaucratic mechanisms,²¹ these mechanisms do not speak to postcolonial configuration and the pressures faced by the global south, such as its recently constructed borders and limited resources. To understand the emerging criminalisation of immigrants in the latter context, we examined case law and media reports, and interviewed 35 people in the field of immigration, such as lawyers, CSO personnel, security officials, and immigrants. The interviews were open-ended and took place between February and November 2015 in Cape Town and Johannesburg, South Africa.²² We also tried to interview government officials, including representatives of the DHA and SAPS, whose duties include the allocation and control of official status documents as well as action against failures of fraud control. We approached the DHA’s Anti-Fraud Unit and high-level officials, but we received no response.²³ One security official spoke to us but was visibly scared during the discussion. This article also draws on informal interviews conducted with former SAPS operations officers in the latter half of 2015 about their experiences.

Throughout our research, we identified three principal techniques of criminalising immigrants: 1) compelling them to purchase immigrant documents through illicit means to stay legally in South Africa; 2) SAPS conducting raids, such as Operation Fiela, that often target and arrest African non-nationals; 3) SAPS and DHA officials illegally detaining immigrants. Together, these techniques, which are increasingly characteristic of governance in the global south, contribute to the criminalisation of foreigners and explain the context in which a Whatsapp text can reverberate throughout South Africa.

Immigrant Documents

The criminalisation of immigrants is manifest in the illicit market surrounding the purchase of immigrant documents in order to remain legally in South Africa. Today, in order to obtain asylum-seeker status, an individual needs to go to one of four RROs – Musina, Durban, Pretoria, and Port Elizabeth²⁴ – that accept new applications to receive a Section 22 permit.²⁵ With this permit (which will be renamed ‘visa’ under the new Refugees Amendment Bill),²⁶ an individual can remain in South Africa legally and move about the country freely until a hearing to determine whether his or her situation fits the definition of a refugee fleeing persecution due to race, tribe, religion, nationality, political opinion, social group, external aggression, and/or disturbing public order.²⁷ After this first hearing, the individual – an asylum seeker – can be granted refugee status, deemed to have an unfounded claim (a determination subject to appeal), or deemed to have a manifestly unfounded claim. If the individual is found to have a manifestly unfounded, fraudulent claim, then he/she must to leave the country within 30 days or face deportation. At this moment, the individual becomes ‘illegal’. The sequence associated with adjusting legal status in South Africa confuses almost everyone – the asylum-seekers, immigrants, police, officials in detention centres, and the general public. Moreover, one’s legal standing is not fixed and can be changed swiftly by the DHA. This is important to note not only for deconstructing the use of the terms – refugee, asylum-seeker, and illegal foreigner – but also because it shapes the basis of South Africans’ interactions with foreign nationals.

In comparison with other African countries that have immigrant populations, South Africa does not have refugee camps and allows foreigners to integrate into South African society. Thus, in the regional case of Cape Town, the 2012 closing of the RRO to new refugees and asylum-seekers has led to an unknown number of immigrants (both bona fide refugees and economic migrants) now surreptitiously entering and residing in South Africa’s Western Cape province. According to the DHA, ‘the department is not aware of a high number of new asylum seekers … the only bottlenecks remain with the appeal and review cases dealt with by the Refugee Appeal Board and Standing Committee on Refugee Affairs’,²⁸ thereby illustrating how difficult it is to quantify the number of undocumented immigrants in Cape Town.

The circulation of documents gained through illicit means serves individuals who are otherwise without papers or have expired papers. Such documents purport to help individuals – namely those who lack status or papers or both – to obtain abilities to work, travel without abuse by police, register for school, access non-emergency healthcare, and gain banking privileges. The inability to use the regional Cape Town RRO, on the part of newly arrived asylum-seekers and those wishing to renew their asylum-seeker permits from other RROs, has caused confusion and normalised ambiguity in immigration laws. Therefore, foreign nationals who are unable to leave Cape Town (often for financial reasons) are forced to become ‘criminals’ by purchasing asylum-seeker and refugee-status permits for survival.

An asylum-seeker permit (Section 22) is valuable because it allows an immigrant to open a bank account, work, send his or her children to school, and access healthcare; however, it is often short-term. For document security, an authentic asylum-seeker permit will have a functioning barcode that is linked to the South African National Refugee Database.²⁹ The refugee-status permit (Section 24) is similar to the Section 22 permit in its benefits, but it is longer-term and therefore more highly desired for the inherent stability that it offers to the immigrant. Other kinds of immigration documents, including work permits, student visas, and permanent residency visas, were either inaccessible or unaffordable to our study participants.

When we asked about obtaining refugee status (a Section 24 permit), most of the immigrants responded with the term ‘status’ to refer to refugee status, and they said that it costs approximately R8,000 – although one of the CSOs indicated a possible price of R5,000, depending on the nationality of the immigrant.³⁰ One woman from the eastern Democratic Republic of Congo (DRC) mentioned that it cost R4,000–4,500 for refugee status that would be valid for four years.³¹ At the upper end of the spectrum, another woman from the DRC indicated that a South African permanent residency can be purchased for R24,000.

Based on the interviews, the majority of immigrants who can afford documents priced in a middle range seem to come from Zimbabwe, followed by the DRC and Congo-Brazzaville. The situation for Zimbabweans is particularly complicated because they are so numerous – an estimated 1–3 million living in South Africa as of 2009.³² Therefore, a special permit was introduced, called the Dispensation of Zimbabweans Project (DZP), and it allowed Zimbabwean permit holders to work, conduct business, and study in South Africa. However, the DHA closed this project on 12 August 2014, and it expired on 31 December 2014. The Zimbabwean Special Dispensation Permit (ZSP) replaced the DZP project, and the new ZSP permits are to be valid until 31 December 2017. As with the DZP permits, the ZSP will allow Zimbabweans to live, work, conduct business, and study in South Africa for the duration of the permit.³³ However, only those Zimbabweans who hold a DZP permit are eligible to apply for the ZSP. According to a leader in the Zimbabwean community who is based in Johannesburg, there are currently 208,000 undocumented Zimbabweans living in South Africa.³⁴ There are still many other Zimbabweans outside the DZP and ZSP programmes who are not accounted for in this estimation, according to this community leader. Many of these undocumented Zimbabweans were previously rejected from the Zimbabwean Special Dispensation Visas³⁵ and are now living without papers in South Africa and are deemed ‘illegal foreigners’. Among our participants, one said that the work permit for which he applied in 2012 never arrived. He suspected that the DHA officials had sold it, because he could never get an answer as to what happened to his permit. He indicated that a work permit valid for two years could be purchased for R2,000. Other Zimbabweans may seek contract marriages with South Africans for R2,000–3,000 with the intention of living legally in South Africa. However, foreign spouses of these South African nationals are often not allowed to work.³⁶

The participants described how each community had a ‘contact’, who would call their person inside the DHA on behalf of ‘clients’ waiting outside. Once the connection had been made, the asylum-seeker would be escorted inside to collect his/her finished document. The cost of getting an asylum-seeker permit ranged from R2,000 to R2,500 (as opposed to the more expensive full refugee status discussed above). A Nigerian father said it cost R2,000 for an asylum-seeker permit, whereas a woman from the DRC reported a cost of R2,500 and a validity period of up to four years. The interviewees from Zimbabwe and Malawi indicated that the cost was R2,500 for an asylum-seeker permit. A Nigerian mother also reported the R2,500 cost for an asylum-seeker permit, but she indicated that someone could purchase it for a lower price of R1,250 or R2,000 with a shorter period of validity. (DHA functionaries use discretion to determine for how long permits can be issued – one month, three months, six months, and so on). A few of the interviewees indicated that some immigrants are so needy that they do not understand that they are purchasing an illicit document.

Although most immigrants are aware of the criminalisation attached to participation in the illicit market of immigrant documents, they expressed frustration with the level of corruption at the DHA, and with their personal difficulties (and those of their family and friends) in complying with the law and keeping up-to-date asylum-seeker and refugee permits. A Nigerian father mentioned how DHA officials will, for R3,000, sometimes destroy a final rejection letter. The consequence of this is that the immigrant can prolong his or her legal status by buying another six months from the DHA official on the asylum-seeker permit. The immigrant can then re-open his or her bank account and begin the extension process from the start.³⁷ This aspect of the illicit market in documents not only gives immigrants authentic documents, but also feeds the rejection of asylum-seeker and refugee applications. The DHA’s self-reported rejection rate of 89 per cent in turn exacerbates immigrants’ demand for the regularisation of their status, and forces them to become criminals by purchasing papers.

Perhaps the most disturbing situations reported were about women forced to have sex either to obtain an immigrant document or to pay off a debt for a document. In 2010, a South African man who worked at one of the local CSOs is reported to have assisted women with obtaining asylum-seeker permits in return for sexual favours. One of our interviewees from the Kivu region of the DRC had been a victim of this man. When we inquired about the veracity of the account, several people confirmed the story. The man had eventually left the position at the CSO. His behaviour was alleged to have gone on for several years. Whether he also received payment in cash from the DHA is unclear. We also learned of women from various immigrant groups being so concerned about enrolling their children in school (some South African schools demand to see parents’ asylum-seeker permits before registering their children), and/or getting access to healthcare, that they would borrow money from a gang to get a Section 22 or Section 24 permit. The gang would then have the woman prostitute herself to lawyers or DHA men and others. If the women did not participate in prostitution, they would be forced to sell drugs.³⁸

The issue of gaining legal status for security (temporary or longer-term) appears to have current market value. The fact that illicit processes often represent the only way to navigate the system perpetuates the criminalisation of immigrants. The illegal process of purchasing immigrant documents turns immigrants into criminals. In turn, it reinforces precisely the impressions reflected in the Whatsapp text: ‘… criminal acts that you conduct – sometimes in cahoots with desperate locals’. This perception that immigrants are criminals has led some South Africans to want African immigrants to go home. This desire for immigrants to return home has been further fostered by the SAPS’s raids and Operation Fiela.

Raids – Operation Fiela-Reclaim

Post-apartheid policing has inherited the legacy of apartheid and colonial-era policing: that is, it often lacks local legitimacy and presence.³⁹ The result in times of crisis or challenge is a reliance on ‘external forces’ to project force, rather than on managing problems with local police resources.⁴⁰ Thus crime operations in post-apartheid South Africa draw on the same repertoire of actions – a column of armed police, often with military support, sealing off an area, which is then searched in an action that culminates in arrests. The intervention force is then used elsewhere. In this, it resembles colonial fire-force policing.⁴¹ This approach was adopted and managed by a set of senior old-order operational officers within the newly reformed police after 1994. Jonny Steinberg argues that SAPS’s ‘structure and ethos … was animated by the task of constraining an insurgency’⁴² and that, despite continuity, ‘South Africa’s democratic government is using many of its policing capabilities in ways that are largely new in the South African context’.⁴³ Although there has been organisational and leadership change within SAPS, the old model of interventionist policing has remained. This, in part, reflects the weakness of wider police legitimacy in South Africa, although it also came to be reinforced by the perceived success of policing interventions around the football World Cup in 2010.⁴⁴ Interventionist policing continues to evolve and appears to have gained wider political legitimacy among some South Africans fearful of criminal activities.⁴⁵

It can therefore be argued that the policing of specific groups of people, such as foreigners, has drawn on past policing tactics and adaptations to the new order. Ordinary police officers in South Africa often feel under attack from communities they serve, and the divide between people and police remains very wide in some places.⁴⁶ Policing foreigners provides a relatively safe space for police work because there is little resistance from communities, particularly in places where the police may ordinarily struggle to enter and make arrests.⁴⁷ Given foreigners’ often ambiguous legal status, they become ‘easy arrests’.⁴⁸ In interviews, senior police officers reported being aware, in the wake of xenophobic violence, that such operations net foreigners, yet the sweeps are carefully attributed to targeting ‘crime’.⁴⁹ This admission, in itself, reveals not only the nature of the operations, but also the degree to which foreigners get targeted, arrested, and detained deliberately.

It is within this context that the use of past police tactics and the targeting of foreigners clashes with the intention of the 1996 South African Constitution. Sections 205–208 describe the function of the South African police services. In particular, section 205(3) states: ‘the objects of the police service are to prevent, combat and investigate crime, to maintain public order, to protect and secure the inhabitants of the Republic and their property, and to uphold and enforce the law’.⁵⁰ It is critical to emphasise that inhabitants⁵¹ are to be protected, not just South African citizens. This mandate, however, tends to get lost in relation to immigrants in South Africa and their treatment. Colin Hoag says that in 2009,

inspectorate officials [of the DHA] believed that the SAPS invited Home Affairs on raids simply as a way of improving their own statistics, such that a ‘SAPS-led operation’ would result in the arrest of a certain number of ‘illegal’ immigrants (SAPS officers cannot legally confirm that a person is in contravention of the Immigration Act).⁵²

Drawing on past tactics shaped by the constraints of the present, SAPS officers are using the blend of old and new techniques to target immigrants through raids, detentions, and deportations of ‘illegal foreign’ inhabitants. One is Operation Fiela-Reclaim, which we describe below.

In July 2014, prior to Operation Fiela-Reclaim, the DHA raided flats in Somerset West and Sholoza Villa in Kraaifontein. Congolese, Tanzanians, Malawians, and Zimbabweans were arrested for not having documents. According to GroundUp journalist Tariro Washinyira,

Sergeant Lindile Dubeni of Corporate Communication SAPS Western Cape Media Centre [confirmed joint operations in which] police search for any illegal activity while [the Department of] Home Affairs looks for undocumented immigrants. The raids take place in the early hours, between 2 and 3 a.m. … ‘a perfect time to get people’.⁵³

These early morning raids have been confirmed by interviews with members of the Zimbabwean community.⁵⁴

In August 2014, the Western Cape Refugee and Migrant Forum (the Forum), an informal group of CSOs that meets every other month to discuss migrant issues, reported a rising number of arrests of undocumented asylum-seekers and asylum-seekers with expired permits in and around Cape Town. On 29 July 2014, a group had been arrested and taken to the Kraaifontein police station. They had then been brought to the Kuilsriver magistrate’s court, and all were released. At the same time, it was reported that 39 people were in Pollsmoor Correctional Facility, located in the Tokai suburb of Cape Town, and some had been transferred to Lindela.⁵⁵ There were an additional 16 men (of various nationalities) and four women who were also being held in Pollsmoor while waiting to be moved to Lindela.⁵⁶ According to the Forum e-mail communication, the Kraaifontein police station’s commander confirmed that Colonel Foster from the Border Police Unit was the official who brought the immigrants to the police stations. Apparently, under Colonel Foster, immigration and provincial border police had been carrying out the raids.⁵⁷ A month later, a commission of inquiry into policing in Khayelitsha expressed concern that the institutional culture of SAPS tolerated discriminatory behaviour, with some senior SAPS managers not consistently upholding constitutional values. In particular, the commission recommended that SAPS make ‘a specific undertaking’ to treat vulnerable groups, such as foreigners, ‘with respect and concern’.⁵⁸

In this social and political context and according to recent media reports, Operation Fiela-Reclaim was launched as ‘a crime-fighting operation to restore law and order, while targeting specific crimes relating to drugs, prostitution and undocumented migrants’.⁵⁹ LHR described the operation as a reaction to the April 2015 xenophobic violence and the ‘government’s misguided attempt to deal with xenophobia’.⁶⁰ The litigation of LHR and others, which responds to SAPS’s raids and makes these raids public, counters the notion that immigrants are criminals. Following raids in May 2015, LHR launched three urgent applications in the High Court in Johannesburg, noting their inability to access their clients who had been arrested.⁶¹ Apparently, some immigrants were deported before their lawyers could consult them. According to LHR lawyer David Cote, not only were the rights of these foreigners violated, but also others reported that SAPS and South African National Defence Force officers slapped them. One man reported that a soldier threatened him ‘to go home (to his place of birth) and if he returned, the soldier would shoot him’.⁶²

In Durban, on 5 May 2015, News24 reported that ‘more than 200 illegal immigrants’ were detained in KwaZulu-Natal – 51 in Pietermaritzburg and 160 in Durban central business district.⁶³ According to Major Thulani Zwane, a police spokesperson, ‘more than 100 members of the police, the eThekwini Metro police and the SA National Defence Force’ were involved.⁶⁴ These raids were ongoing, and heroin and weapons had been seized. Such seizures and illegal immigrant arrests further the criminalisation of immigrants and feed the perception that increased rates of crimes are attributable to foreigners.

In Cape Town, News24 reported that 81 undocumented immigrants were arrested on Sunday, 21 June 2015, under the guise of stopping counterfeit goods on the streets.⁶⁵ On Monday, 22 June 2015, we visited one of the locations of undocumented immigrants in Cape Town and enquired about arrests and detentions. A group of 30 Malawian and Zimbabwean men indicated that there had not been any recent arrests in Cape Town; however, two of the men from Zimbabwe indicated that they had been held in Pollsmoor for four months for not having papers. When we enquired as to why they were released, they did not have an explanation.⁶⁶ They had been released about two months earlier. All of these men were indigent migrants living on the streets.

The intersection between raids and illegal detentions and subsequent deportations can also be viewed through traces in legal cases. Recently, LHR lawyer Elzemari Temperman commented that, following a May 2015 Johannesburg central business district raid, LHR ‘battled to consult with their clients who were detained at a police station, as well as at Lindela repatriation camp’.⁶⁷ For their part, DHA immigration enforcement authorities notoriously defend raids as necessary for protection and securitisation. The criminalisation of immigrants follows from this police mandate, and foreign nationals are often illegally detained and deported.

Immigrant Detentions

The issue of immigration detention illustrates the tension between mixed migration and refugee protection and how law enforcement officials and other government functionaries often fail to distinguish among asylum-seekers, illegal immigrants, and criminals.⁶⁸ In the United Kingdom, the emerging scholarship on immigration detention asks, ‘what accounts for an increasing reliance amongst governments on immigration detention as a tool of immigration control policy?’⁶⁹ Immigration scholars Stephanie Silverman and Evelyne Massa define immigration detention ‘as the holding of foreign nationals, or non-citizens, for the purposes of realising an immigration-related goal’,⁷⁰ which is ultimately ‘a powerful tool in the contemporary state’s machinery of immigration control’.⁷¹ Although this global north example encapsulates the intersection between detention and immigration control,⁷² the South African case study seems to suggest a less co-ordinated, more arbitrary, and poorly defined response to managing immigration, a response that normalises ambiguity.⁷³

The legal framework of immigration detention is established in the Immigration Act 13 of 2000 and Refugees Act 130 of 2008. According to the Immigration Act Section 34(1)(b), a person subject to deportation or detention as an illegal foreigner,

… may at any time request any officer attending to him or her that his or her detention for the purpose of deportation be confirmed by warrant of a Court, which, if not issued within 48 hours of such request, shall cause the immediate release of such foreigner.⁷⁴

Section 34(1)(d) adds that, ‘ … illegal foreigners may not be held in detention for longer than 30 calendar days without a warrant of a Court which on good and reasonable grounds may extend such detention for an adequate period not exceeding 90 calendar days’, and they ‘shall be held in detention in compliance with minimum prescribed standards protecting his or her dignity and relevant human rights’.⁷⁵

According to the Refugees Act 130 of 2008, the detention of asylum-seekers and refugees is technically barred because international law prohibits the detention of asylum-seekers for deportation. Drawing from United Nations protocols, South African law mirrors international refugee law of non-refoulement – that is, the prohibition of returning a refugee or asylum-seeker to territories where an individual fears persecution.⁷⁶ In this context, the DHA and SAPS break international law by deporting asylum-seekers before their final status determination.⁷⁷ However, there are provisions that allow for the detention and subsequent deportation of asylum-seekers. According to Section 22 of the Refugees Act (5),

a permit issued to any person … lapses if the holder departs from the Republic without the consent of the Minister. (6) The Minister may at any time withdraw an asylum seeker permit if – (a) the applicant contravenes any conditions endorsed on that permit; or (b) the application has been found to be manifestly unfounded, abusive or fraudulent …⁷⁸

And with regard to the detention of asylum seekers, Section 23 of the Refugees Act states,

if the Minister has withdrawn an asylum seeker permit in terms of section 22(6), he or she may, subject to section 29, cause the holder to be arrested and detained pending the finalisation of the application of asylum, in the manner and place determined by him and or her due regard to human dignity.⁷⁹

Lastly, the Refugees Act, Section 29, reiterates that

no person may be detained in terms of this Act for a longer period than is reasonable and justifiable and any detention exceeding 30 days may be reviewed immediately by a judge of the High Court of the provincial division in whose area of jurisdiction the person is detained.⁸⁰

Unlike the Immigration Act, the Refugee Act emphasises that an asylum-seeker can be detained only by an order of the minister, and detentions must be reviewed every 30 days until a final status determination is rendered.⁸¹

The DHA and its functionaries have a long-standing reputation for ineptitude. The Department of Home Affairs is known in some circles as the ‘Department of Horror Affairs’.⁸² The litany of the DHA abuses is endless, with examples of corruption, negligence, and incompetence; yet the institution is nevertheless obligated to comport with the South African Constitution and the judicial rulings. We argue that the DHA and its functionaries further the criminalisation of immigrants through their detentions. In an interview, a security official noted that, at times, SAPS unlawfully detained immigrants for more than 48 hours.⁸³ This account corresponded to comments by someone in a local CSO, who noted that sometimes more than 35 immigrants with expired asylum-seeker permits were being held in the Buitenkant police station in Cape Town.⁸⁴ These accounts confirm the judgment on 29 May 2015 in which the Supreme Court of Appeal in Rahim v The Minister of Home Affairs ruled that 15 illegal foreigners had been unlawfully detained by the DHA.⁸⁵ Anecdotes and court judgments further reveal the practice of unlawfully detaining immigrants who are waiting for or trying to attain asylum-seeker status and/or seeking to renew papers, only to be faced with DHA-constructed obstacles.

The adjudications of the Arse v Home Affairs, Ersumo v Home Affairs, Tafira v Ngozwane, and Dawood cases represent a sample in which South African courts have responded to the DHA’s interpretation of its legal obligations.⁸⁶ These cases resulted in judicial decisions that granted relief from detention.⁸⁷ In Arse v Home Affairs, the South African South Gauteng High Court ruled in favour of an asylum-seeker from Ethiopia who had failed to obtain an asylum-seeker permit because the queues were too long in the Port Elizabeth RRO. He was arrested as an illegal foreigner and spent a week at a police station before being transferred to Lindela. The Court ruled that his detention had extended for more than 30 days and was

in contravention of s[ection] 2 of the Refugees Act entrenching the State’s obligation of non-refoulement. Since the appellant’s asylum seeker permit has expired and has not been extended in terms of s[ection] 22(3) of the Refugees Act it is necessary to order that an asylum seeker permit be re-issued to him.⁸⁸

Malan, Judge of Appeal (JA), stated, in dealing with the fundamental rights of liberty, ‘the importance of the right “can never be overstated”. Section 12(1)(b) of the Constitution guarantees the right to freedom, including the right not to be detained without trial. This right belongs to both citizens and foreigners’.⁸⁹ The case of Arse shows that the inability of an asylum-seeker to obtain a permit does not give grounds for detention. DHA officials ‘have a duty to ensure the intending applicants for refugee status are given every reasonable opportunity to file an application with the relevant Refugee Reception Office’.⁹⁰ However, legal scholar Roni Amit found that arrests following problems getting access to RROs were not uncommon.⁹¹

In a similar case two years later, Ersumo, an Ethiopian asylum-seeker, was

arrested as an illegal foreigner and detained for not having a Section 22 permit. He was like Arse in trying to obtain his asylum-seeker permit, but he failed because of queues at the RRO. According to the ruling, the purpose of Immigration Regulation 2(2) is to ensure that when a foreign national indicates an intention to apply for asylum, the regulatory framework is available. ‘It is clear that the appellants, when they were detained at Lindela, communicated to the Department’s officials and enforcement officers by the letter referred to earlier in this judgment that they intended to apply for asylum’.⁹² The Supreme Court of Appeal set down for expedited hearing and ordered that the appellant be issued with an asylum transit permit valid for 14 days – that is, ‘afford him priority when he reports to the Refugee Reception Office of Home Affairs’.⁹³

Parallel to Ersumo, in the case of Bula, Navsa JA concludes, ‘the legal–technical approach adapted … for the Minister and the DG [Director-General of DHA] are fundamentally flawed’⁹⁴ with respect to the difficulty in obtaining a Section 22 permit. Without permits, these asylum-seekers become deemed illegal foreigners and are subject by the DHA to detention and deportation. Yet, in adjudicating Arse, Ersumo, and Bula cases, the judges concluded that the DHA violated these asylum-seekers’ rights to file applications.

In a related situation, the University of Cape Town (UCT) Refugee Rights Clinic handled the case of Hassan Gulet, a Somali asylum-seeker who was arrested for not having documentation and was being detained at Pollsmoor.⁹⁵ Gulet arrived in South Africa in July 2014 and stayed with friends for three weeks while trying to obtain an asylum-seeker permit from the Pretoria RRO. He ran out of money while waiting in the queues, at which point a friend sent him money and encouraged him to come to Cape Town. While in Cape Town, on the evening of Thursday, 14 August 2014, he was stopped with another Somali asylum-seeker for a traffic violation. Four days later, on 18 August 2014, he appeared before a court magistrate and was to be deported on 25 August 2014. On 10 September 2014, a CSO, the Agency for Refugee Education, Skills Training and Advocacy (ARESTA), contacted the UCT Refugee Rights Clinic for assistance. Eventually, DHA Immigration Officer Annelise van Dyke from the Paarl office sent an e-mail indicating that the asylum-seeker must stay longer in Pollsmoor, for possibly more than the 90 days, until his case was finalised.⁹⁶ On 30 September 2014, Hassan Gulet was released with a UCT Refugee Rights Clinic attorney present. He then went to the Pretoria RRO and received his Section 22 permit bearing an expiration date of 4 November 2014.⁹⁷ In Hasan Gulet’s case, not only had the DHA detained an asylum-seeker wishing to apply for refugee determination, but also the agency had criminalised a bona fide asylum seeker.

Conclusion

Returning to the April 2015 Whatsapp text to African immigrants, the message and the obscure coalition of movements behind it not only scared vulnerable immigrants, but also illustrate how South Africans tolerate the abuse of immigrants despite a progressive constitution and statutes to the contrary. The ill-informed notion that these immigrants – whether fleeing the economic deprivation of Zimbabwe or the war-torn Kivu region of the DRC – can return home and ‘build Africa’ shows grave misunderstandings. To hold this notion is to ignore the instabilities in many African countries and to assume that immigrants want to be displaced. The criminalisation of immigrants – arguably an import from the global north – is failing. It follows from compelling immigrants to purchase documents through illicit means, conducting raids such as Operation Fiela, and illegally detaining immigrants. Legal judgments addressing these detentions show how the DHA often operates in co-ordination with SAPS, contributing to the criminalisation of immigrants through raids and detentions that contravene South African statutes and the Constitution. And yet immigrants continue their journeys to seek work, and many build their lives in South Africa.

As large numbers of mixed migrants arrive in South Africa, the criminalisation of immigrants needs to be re-examined.⁹⁸ Navsa JA, the judge of the Rahim case, explains:

South Africa has kilometre upon kilometre of porous borders which the Department of Home Affairs (the Department) has difficulty controlling. There is public concern about the illegal influx of foreigners. Many of our African brothers and sisters and even people, like most of the appellants [in this case], from more distant shores, flock to our country in search of a better life and economic opportunities. This has caused a degree of animosity to be directed at foreigners and more recently has led to what has been described as xenophobic attacks on foreigners. It is vital in this context to affirm that we are a constitutional state subscribing to the principle of legality, an incident of the rule of law. Our Constitution demands a normative standard and we must be held bound by it.⁹⁹

This normative standard implies confronting the new normal, addressing immigration governance in the global south, and holding to the principle that ‘everyone has inherent dignity and the right to have their dignity respected and protected’.¹⁰⁰ In an effort to adhere to everyone’s dignity, Deputy Minister of Home Affairs Malusi Nkanyezi Gigaba stated that ‘a counter-corruption project – Operation Bvisa Masina – isiVenda for “throw out the rot”’ was to be launched on 24 July 2015.¹⁰¹ The intention to curb the corruption and protect everyone’s rights is to be commended; however, the systemic issue of a large number of immigrants operating in legal ambiguity enables the criminalisation to continue, replicating mistakes from the global north.

Theresa Alfaro-Velcamp
Centre of Criminology, Faculty of Law, University of Cape Town, Private Bag X3, Rondebosch 7701, South Africa. E-mail: [email protected]ark Shaw
Centre of Criminology, Faculty of Law, University of Cape Town, Private Bag X3, Rondebosch 7701, South Africa. E-mail: [email protected]

Acknowledgements

Theresa Alfaro-Velcamp is Honorary Research Associate at the Centre of Criminology, Faculty of Law, University of Cape Town (UCT), South Africa, and Professor at Sonoma State University, California, USA. Mark Shaw is Professor and National Research Foundation (NRF) Research Chair at the Centre of Criminology, Faculty of Law, UCT. The authors would like to thank Gahlia Brogneri, Matthew Skade, and Popo Mfubu for their research assistance, and the UCT Refugee Rights Unit. The anonymous reviewers and the journal editor, Maxim Bolt, provided valuable comments. This work is based on research supported by the South African Research Chairs Initiative of the Department of Science and Technology and the NRF of South Africa (Grant No 47303). Any opinions, findings, conclusions, or recommendations expressed in this material are those of the authors and not of the NRF, and the funders do not accept any liability in this regard.

Notes

¹ Passages in bold in this letter indicate our emphasis.

² In March 2015, Zulu King Goodwill Zwelithini kaBhekuzulu made inflammatory comments about foreigners’ commercial roles in South Africa, leading to xenophobic attacks in various communities. Bongani Harris, ‘King’s Anti-Foreigner Speech Causes Alarm’, iol news, South Africa, 23 March 2015.

³ Anon, ‘The Xenophobia in South Africa Is Officially Out of Control’, available at http://thoughtcatalog.com/anonymous/2015/04/the-xenophobia-in-south-africa-is-officially-out-of-control/, retrieved 17 June 2015.

⁴ It is unclear who they are and how they came together.

⁵ S. Chan, ‘South Africa Court Sentences 8 Ex-Policemen in Immigrant’s Murder’, New York Times, 11 November 2015.

⁶ J. Banks describes how, in the United Kingdom, ‘legislative and discursive responses to asylum seekers and refugees have reconceptualised such individuals as criminal, dangerous and deviant’; see J. Banks, ‘The Criminalisation of Asylum Seekers and Asylum Policy’, Prison Service Journal, 175 (2008), p. 43.

⁷ This perception that refugees were uniquely receiving economic benefits from the South African government was underscored at a CSO event titled, ‘Is xenophobia the down-side of nation-building?’ Goedgedacht Forum (www.goedgedachtforum.co.za), Cape Town, 11 August 2015.

⁸ See D. Fassin, ‘Policing Borders, Producing Boundaries: The Governmentality of Immigration in Dark Times’, Annual Review of Anthropology, 40 (2011), pp. 213–26. For a discussion of immigrant vulnerability in social science research, see R.H. McLaughlin and T. Alfaro-Velcamp, ‘The Vulnerability of Immigrants in Research: Enhancing Protocol Development and Ethics Review’, Journal of Academic Ethics, 13, 1 (2015), pp. 27–43.

⁹ Interviews with operational police officers, Johannesburg, South Africa, 17–18 September 2015. Interviews for this article with operational police officers in Cape Town and Johannesburg were conducted by the authors.

¹⁰ Colin Hoag noted that he ‘regularly heard nativist or xenophobic language used by [DHA Immigration Services Branch] officials’, C. Hoag, ‘The Magic of the Populace: An Ethnography of Illegibility in the South African Immigration Bureaucracy’, Political and Legal Anthropology Review (PoLAR), 33, 1 (2010), p. 9.

¹¹ L.B. Landau, Exorcising the Demons Within: Xenophobia, Violence and Statecraft in Contemporary South Africa (Johannesburg, Wits University Press, 2011).

¹² B.S. Chimni, ‘The Geopolitics of Refugee Studies: A View from the South’, Journal of Refugee Studies, 11, 4 (1998), p. 369.

¹³ Landau argues, ‘when state institutions evidently failed to deliver on their promises to protect and promote a politically entitled but materially deprived citizenry, the population (or parts of it) took on the obligation to alienate and exclude those standing in its way’. Landau, Exorcising the Demons, p. 3.

¹⁴ For a thorough discussion of civil servants’ abusing state powers, see J.P. Olivier de Sardan, ‘Informal Practices of Civil Servants’, in N. Cheeseman, D.M. Anderson and A. Scheibler (eds), Routledge Handbook of African Politics (London, Routledge, 2014), pp. 70, 73. Olivier de Sardan describes the disconnect between ‘official norms’ and ‘actual behaviour’ that often leads to ‘petty corruption’ and ‘big corruption’.

¹⁵ Refugees Amendment Bill, 2015 (Act No. 130 of 1998), 6 August 2015, p. 8.

¹⁶ C. Dauvergne. Making People Illegal: What Globalization Means for Migration and Law (New York, Cambridge University Press, 2008), p. 2.

¹⁷ D. Cote, ‘State Fails in Obligations to Refugees’, Business Day (BD) Live, South Africa, 24 April 2015, p. 2, available at http://www.bdlive.co.za/opinion/2015/04/24/state-fails-in-obligations-to-refugees, retrieved 28 April 2015.

¹⁸ F. Rabkin, ‘SA’s Refugee Offices Rife with Bribes, Says Report’, BD Live, 22 July 2015, available at http://www.bdlive.co.za/national/2015/07/22/sas-refugee-offices-rife-with-bribes-says-report, retrieved 3 August 2015.

¹⁹ UN News Service, ‘Ban Arrives in Burundi in Support of UN Efforts to Resolve Political Crisis’, UN News Centre, New York, 22 February 2016, available at http://www.un.org/apps/news/story.asp?NewsID=53287#, retrieved 22 February 2016.

²⁰ Al Jazeera and agencies, ‘Zimbabwe Pleads for Cash to Stop Mass Starvation’, Al Jazeera, Qatar, 9 February 2016, available at http://www.aljazeera.com/news/2016/02/zimbabwe-pleads-cash-stop-mass-starvation-160209181824106.html, retrieved 22 February 2016.

²¹ John Torpey describes post-Second World War Europe, in which ‘states have sought to monopolize the capacity to authorize the movements of persons – and unambiguously to establish their identities in order to enforce this authority’, J. Torpey, ‘Coming and Going: On the State Monopolization of the Legitimate “Means of Movement”’, Sociological Theory, 16, 3 (1998), p. 241.

²² The questions were first vetted by the UCT Faculty of Law Research Ethics Committee on 26 February 2015 (L2-2015). We adapted an informed consent form and asked the participants to circle ‘yes’ or ‘no’ to acknowledge their rights to participate in the project. We did this in lieu of obtaining signatures to protect the participants’ anonymity. The list of questions is on file with the authors and can be provided upon request.

²³ Telephone and email communications with the DHA national spokesperson, Cape Town, South Africa, 25 March 2015.

²⁴ Minister of Home Affairs and others v Somali Association of South Africa and another (831/12) [2015] ZASCA 35 (25 March 2015). The Constitutional Court ruled on 5 August 2015 that the Port Elizabeth refugee office was to be reopened. S. Evans, ‘ConCourt Rules Closing PE Refugee Office Unlawful’, Mail & Guardian, Johannesburg, 7 August 2015, available at http://mg.co.za/article/2015-08-07-concourt-rules-closing-pe-refugee-office-unlawful, retrieved 12 August 2015. See also eNews Channel Africa, ‘PE Home Affairs Closed Despite Concourt Ruling’, eNCA, Johannesburg, available at http://www.enca.com/south-africa/pe-home-affairs-refuses-reopen-despite-concourt-ruling, retrieved 12 August 2015.

²⁵ Consortium for Refugees and Migrants in South Africa (CoRMSA), How to Apply for Asylum in South Africa, available at http://www.cormsa.org.za/wp-content/uploads/2009/05/HOW-TO-APPLY-FOR-ASYLUM-IN-SOUTH-AFRICA-Brochure.pdf, retrieved 8 December 2014.

²⁶ Refugees Amendment Bill, 2015 (Act No. 130 of 1998), 6 August 2015, p. 6. Until the Refugees Amendment Bill is ratified, we will use the term ‘permit’.

²⁷ According to Section 3 of the Refugees Act 130 of 1998, a person qualifies for refugee status if that person: (a) owing to a well-founded fear of being persecuted by reason of his or her race, tribe, religion, nationality, political opinion, or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it; or (b) owing to external aggression, occupation, foreign domination, or events seriously disturbing or disrupting public order in either a 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 elsewhere. Section 3(a) corresponds to the 1951 UN Convention, and Section 3(b) reflects the extended definition of the 1969 Organisation of African Unity (OAU) Convention. See J.C. Hathaway, The Rights of Refugees under International Law (Cambridge, Cambridge University Press, 2005), Chapter 4.

²⁸ Question No. 2681, A.M. Figlan (DA) to Minister of Home Affairs, Friday, 31 July 2015.

²⁹ As Keith Breckenridge notes in a historical context, ‘for the official in the [DHA] – charged with maintaining the integrity of the documents of individual identity – the “leaky” population register is the single cause of a host of problems – fraud and corruption in the distribution of social benefits, massive illegal immigration and unchecked crime’. See K. Breckenridge, ‘The Biometric State: The Promise and Peril of Digital Government in the New South Africa’, Journal of Southern African Studies, 31, 2 (2005), p. 276.

³⁰ CSO Meeting, Cape Town, 24 March 2015.

³¹ Interview with DRC Refugee, Cape Town, 23 March 2015.

³² S. Chiumia, ‘How Many Zimbabweans Live in South Africa? The Numbers are Unreliable’, Africa Check, Johannesburg, 23 November 2013, available at http://africacheck.org/reports/how-many-zimbabweans-live-in-south-africa-the-numbers-are-unreliable/, retrieved 5 May 2015.

³³ Independent Schools Association of South Africa, ‘Zimbabwean Special Dispensation Permit’, ISASA, Johannesburg, available at http://www.isasa.org/zimbabwean-special-dispensation-permit/, retrieved 25 April 2015.

³⁴ Telephone interview, Cape Town, 9 March 2015.

³⁵ ‘The Zimbabwean Special Dispensation permit (ZSP) is the successor to a permit issued as part of the Home Affairs Department’s Dispensation of Zimbabweans Project (DZP), which was implemented between 1 September 2010 and 31 December 2010. DZP permit holders who would like to remain in South Africa can apply for the newly introduced Zimbabwe Special Dispensation Permit (ZSP). The ZSP will be issued only to those Zimbabweans who currently have a DZP permit. The ZSP will be valid for three years. Once that time is up, all Zimbabweans with ZSP permits will be required to apply for standard study, work, or business visas in order to remain and will have to return to Zimbabwe to do so’. See Visa Facilitation Service (VFS) Global, available at http://www.vfsglobal.com/zsp/southafrica/zimbabwean_special_dispensation_permit.html, retrieved 23 February 2016.

³⁶ Ibid.

³⁷ Ibid.

³⁸ Focus group interviews, Observatory, Cape Town, 9 March 2015. Follow-up interview, Cape Town, 16 March 2015.

³⁹ M. Shaw, Crime and Policing in Post-Apartheid South Africa: Transforming Under Fire (Cape Town, David Philip, 2002).

⁴⁰ In the related context of commercial farms and labour relations, Maxim Bolt documents the dynamics along the Zimbabwean–South African border among farmers, police, and army, including ‘aggressive police raids on the compounds to deport so-called “illegals” [that] drive harvest-time recruits to hide in the bush at night’. See M. Bolt, ‘Waged Entrepreneurs, Policed Informality: Work, the Regulation of Space and the Economy of the Zimbabwean–South African Border’, Africa, 82, 1 (2012), p. 114.

⁴¹ J.D. Brewer, Black and Blue: Policing in South Africa (Oxford, Oxford University Press, 1994).

⁴² J. Steinberg, ‘Policing, State Power, and the Transition from Apartheid to Democracy: A New Perspective’, African Affairs, 113, 451 (2014), p. 173.

⁴³ Ibid., p. 191.

⁴⁴ Police data show that levels of crime decreased during the period of the World Cup, and, while this is due not only to police interventions, it has gained wide currency within the police that such interventions worked. Interview with former senior police officer, Pretoria, 13 November 2015.

⁴⁵ The former police commissioner Bheki Cele, for example, has often spoken of the need for such approaches, drawing on the experiences of the World Cup.

⁴⁶ See J. Steinberg, Thin Blue: The Unwritten Rules of Policing South Africa (Johannesburg, Jonathan Ball, 2008).

⁴⁷ According to Gail Super, foreigners are more often and more radically excluded from the protection of community crime-fighting initiatives. G. Super, ‘Violence and Democracy in Khayelitsha, Governing Crime through the “Community”’, Stability: International Journal of Security and Development, 4, 1 (2015), p. 11.

⁴⁸ Interviews with operational police officers, Johannesburg, 17–18 September 2015.

⁴⁹ Interview with former senior security official, Johannesburg, 21 July 2015.

⁵⁰ The Constitution of the Republic of South Africa, 12th Edition, updated 13 March 2013, p. 118.

⁵¹ Our emphasis.

⁵² Colin Hoag also suggests that co-ordination with DHA and SAPS was often challenging. It was alleged by the DHA officials that ‘South African Police (SAPS) are highly prone to corruption, and that these police officers do not really care about enforcing immigration laws’. See Hoag, ‘The Magic of the Populace’, p. 16.

⁵³ T. Washinyira, ‘African Immigrants Experience a Spate of Raids and Deportations’, GroundUp, Cape Town, 6 August 2014, available at http://groundup.org.za/article/african-immigrants-experience-spate-raids-and-deportations_2079, retrieved 23 August 2015.

⁵⁴ Interview, Cape Town, 15 August 2015. One young woman indicated that a mother and child were picked up and detained; however, the child died in custody. Now people say that ‘mothers with children are safe’ in the raids because the police are afraid to arrest them.

⁵⁵ Lindela Detention Centre is a temporary holding facility for those awaiting deportation. It is located in Krugersdorp, approximately 40 kilometres north-west of Johannesburg. According to Mail & Guardian journalist Phillip de Wet, Lindela opened in August 1996, replacing mine workers’ housing. See P. de Wet, ‘Waiting for Change at Lindela’, Mail & Guardian, 10 October 2014, p. 2.

⁵⁶ Washinyira, ‘African Immigrants’.

⁵⁷ Email communication, authors’ files, 1 August 2014.

⁵⁸ V. Igglesden, ‘Foreign Nationals’ experience of policing in Khayelitsha’, Report to The Khayeltisha Commission of Inquiry’, December 2013. Also see T. Washinyira, ‘SAPS Told to Treat Foreigners with Respect’, GroundUp, 26 August 2014, available at http://groundup.org.za/article/saps-told-treat-foreigners-respect_2166, retrieved 23 August 2015.

⁵⁹ Z. Venter, ‘Lawyers Challenge Operation Fiela’, iol News, 23 June 2015, available at http://www.iol.co.za/news/crime-courts/lawyers-challenge-operation-fiela-1.1875002#.VYqKO-c8n_4, retrieved 24 June 2015.

⁶⁰ Ibid.

⁶¹ Judge Jan Hiemstra decided that the matter was not urgent, and it was removed from roll in the High Court in Pretoria. J. Evans, ‘Court Rules Operation Fiela Challenge Not Urgent’, News24, 23 June 2015, available at http://www.news24.com/SouthAfrica/News/Court-rules-Operation-Fiela-challenge-not-urgent-20150623, retrieved 9 August 2015.

⁶² Ibid.

⁶³ ‘More than 200 Illegal Immigrants Held in KZN Raid’, News24, 5 May 2015, available at http://www.news24.com/SouthAfrica/News/More-than-200-illegal-immigrants-held-in-KZN-raid-20150506, retrieved 24 June 2015.

⁶⁴ Ibid.

⁶⁵ M. Raborife, ‘86 Arrested in Cape Town During Operation Fiela’, News24, 21 June 2015, available at http://www.news24.com/SouthAfrica/News/86-arrested-in-Cape-Town-during-Operation-Fiela-20150621, retrieved 23 June 2015.

⁶⁶ Informal interviews, Salt River, Cape Town, 22 June 2015.

⁶⁷ Venter, ‘Lawyers Challenge’.

⁶⁸ L. Kiama and D. Likule, ‘Detention in Kenya: Risks for Refugees and Asylum Seekers’, Forced Migration Review, 44 (September 2013), p. 34.

⁶⁹ S.J. Silverman and E. Massa, ‘Why Immigration Detention is Unique’, Population, Space and Place, 18, 6 (2012), p. 678.

⁷⁰ Ibid., p, 679.

⁷¹ Ibid., p. 680.

⁷² Although there is emerging scholarship between studies of criminalisation and detention titled, ‘crimmigration’ studies, we see our work more rooted in the global south governance framework. See K.F. Aas, ‘“Crimmigrant” Bodies and Bona Fide Travelers: Surveillance, Citizenship and Global Governance’, Theoretical Criminology, 15, 3 (2011), pp. 331–46; L. Zedner, ‘Security, the State, and the Citizen: The Changing Architecture of Crime Control’, New Criminal Law Review, 13, 2 (2010), pp. 379–403; J. Stumpf, ‘The Crimmigration Crisis: Immigrants, Crime, and Sovereign Power’, American University Law Review, 56, 2 (2006), pp. 367–419; J.M. Chacón, ‘Managing Migration through Crime’, Columbia Law Review, 109, 1 (2009), pp.135–48.

⁷³ R. Amit states, ‘immigration detention is discretionary under South African law’. See R. Amit, ‘Security Rhetoric and Detention in South Africa’, Forced Migration Review, 44 (September 2013), p. 32.

⁷⁴ Immigration Act 13 of 2002 (26 May 2014).

⁷⁵ Ibid., p. 42.

⁷⁶ See Article 33 of the 1951 UN Convention Relating to the Status of Refugees; see also E. Lauterpacht and D. Bethlehem, ‘The Scope and Content of the Principle of Non-Refoulement: An Opinion’, Office of the UN High Commissioner for Refugees, available at http://www.unhcr.org/419c75ce4.html, retrieved 2 November 2014.

⁷⁷ See F. Khan and T. Schreier, Refugee Law in South Africa (Cape Town, Juta Press, 2014), Chapter 1.

⁷⁸ Section 22, South African Refugees Act 130 of 1998, p. 16.

⁷⁹ Section 23, South African Refugees Act 130 of 1998, p. 16.

⁸⁰ Section 29, South African Refugees Act 130 of 1998, p. 20.

⁸¹ R. Amit ‘Breaking the Law, Breaking the Bank: The Cost of Home Affairs’ Illegal Detention Practices’, African Centre for Migration and Society (ACMS) Research Report, 7 (2012), p. 25.

⁸² See D. Vigneswaran, ‘Migration Control, Documentation, and State Transformation’, in A. Segatti and L.B. Landau (eds), Contemporary Migration to South Africa: A Regional Development Issue (Washington DC, International Bank for Reconstruction and Development/ World Bank, 2011), pp. 58–60.

⁸³ Interview with security official, Cape Town, 11 April 2015.

⁸⁴ Interview with CSO, Cape Town, 24 March 2015.

⁸⁵ Rahim v The Minister of Home Affairs (965/2013) [2015] ZASCA 92 (29 May 2015). On 16 February 2016, Nugent AJ of the South African Constitutional Court ruled that the Director-General of the DHA is required to ‘apply his or her mind to what places are appropriate for the detention of illegal foreigners. Absent a determination having been made, the respondents were detained unlawfully and thus to [be awarded] damages’. Minister of Home Affairs v Rahim and Others [2016] ZACC 3, paragraph 2.

⁸⁶ Arse v Minister of Home Affairs and Others (25/2010) [2010] ZASCA 9; 2010 (7) BCLR 640 (SCA); [2010] 3 All SA 261 (SCA); 2012 (4) SA 544 (SCA) (12 March 2010), Ersumo v Minister of Home Affairs 2012 (4) SA 581 (SCA), Tafira and Others v Ngozwane and Others (12960/06) [2006] ZAGPHC 136 (12 December 2006), Dawood and Another v Minister of Home Affairs and Others; Shalabi and Another v Minister of Home Affairs and Others; Thomas and Another v Minister of Home Affairs and Others (CCT35/99) [2000] ZACC 8; 2000 (3) SA 936; 2000 (8) BCLR 837 (7 June 2000).

⁸⁷ Legal scholar C. Hoexter notes that, in the case of Yuen v Minister of Home Affairs, ‘the decision to deport the applicant was set aside because the notice of deportation failed to indicate the grounds on which the Minister was relying’. Yuen v Minister of Home Affairs 1998(1) SA 958 (C). See C. Hoexter, Administrative Law in South Africa, second ed. (Cape Town, Juta Press, 2012), p. 373 n63.

⁸⁸ Arse v Minister of Home Affairs and Others, paragraph 22.

⁸⁹ Arse v Minister of Home Affairs and Others, paragraph 10. Bula v Minister of Home Affairs 2012 (4) SA 560 (SCA), paragraph 84.

⁹⁰ Amit, ‘Breaking the Law’, p. 31.

⁹¹ Ibid., p. 32.

⁹² Ersumo v Minister of Home Affairs, paragraph 72.

⁹³ Ersumo v Minister of Home Affairs, paragraph 23.

⁹⁴ Bula v Minister of Home Affairs 2012(4) SA 560 (SCA), paragraph 82.

⁹⁵ This is a stage in ‘the Department’s practice to transport detainees by bus from Cape Town to the Lindela Holding Facility in Gauteng (“Lindela”) every Wednesday, Thursdays, and Saturdays to await their onward deportation from the Republic … the busses transport detainees to Lindela depart from Cape Town whenever there are sufficient detainees to fill a bus to justify the trip to Lindela’. Founding Affidavit of Hassan Osman Gulet, 19 September 2014, prepared by Popo Mfubu, paragraphs 73–5, pp. 17–18.

⁹⁶ Email correspondence, 19 September 2014.

⁹⁷ According to Popo Mfubu, he obtained his refugee status.

⁹⁸ On mixed migration, see N. Van Hear, R. Brubaker and T. Bessa, ‘Managing Mobility for Human Development: The Growing Salience of Mixed Migration’, UN Development Programme, Human Development Research Paper 2009/20, 1 June 2009.

⁹⁹ Rahim v The Minister of Home Affairs (965/2013) [2015] ZASCA 92 (29 May 2015).

¹⁰⁰ The Constitution of the Republic of South Africa, 12th Edition, updated 13 March 2013, p. 8.

¹⁰¹ See DHA statement on counter-corruption measures, 24 July 2015, available at http://www.home-affairs.gov.za/index.php/statements-speeches/652-statement-by-minister-gigaba-at-the-media-briefing-on-the-department-s-counter-corruption-measures-24-july-2015, retrieved 12 August 2015.