Challenging Policies and Contextualizing Rights: Civil Society Litigation and Refugee and Asylum Seeker Governance in South African Cities

Abstract

There has been increasing attention to legal and political contention concerning refugees and asylum seekers in cities. However, there are further opportunities to analyze the relationship between civil society litigation and state institutions in Global South cities. In this paper, I analyze civil society litigation to re-open Refugee Reception Offices (RROs) in South Africa. Primarily based on legal research, I argue that civil society litigation to re-open RROs in specific cities represents an advocacy strategy to contextualize national rights and policies within urban spaces. The paper contributes to broader discussions on civil society advocacy and rights and governance in cities.

Keywords:

• Asylum seekers and refugees
• litigation
• civil society
• cities
• South Africa

Acknowledgements

This paper is based on a section of my dissertation, and I am grateful for the thoughtful comments and discussions from my committee members, Roger Waldinger, Tendayi Achiume, Edward Walker, and Victor Agadjanian. A version of this paper was presented at the Refugee Law Initiative (RLI) 5th Annual Conference, University of London, 2021, and the nccr – on the move Graduate Conference, Université de Neuchâtel, 2021, and I would like to thank my co-participants for their feedback. I would also like to thank the participants and conveners at the African Academy for Urban Diversity (AAUD), and the anonymous reviewers for their thoughtful comments on the paper. Finally, I would like to thank everyone in South Africa who participated in and assisted in the development of this research.

Disclosure statement

The author reported no potential conflict of interest.

Notes

1 Minister Malusi Gigaba: Re-opening of Port Elizabeth Refugee Reception Office, 19 October 2018; accessed at https://www.gov.za/speeches/statement-minister-home-affairs-19-oct-2018-0000.

2 Scalabrini Centre, Cape Town and Others v. Minister of Home Affairs and Others, [2013]11681/12, ZAWCHC; Somali Association for South Africa, Eastern Cape (SASA) EC and Another v. Minister of Home Affairs and Others, [2013] 3338/2012, ZAECHCPE; Minister of Home Affairs and Others v. Somali Association of South Africa and Another, [2015] 831/13, ZASCA.

3 Consortium for Refugees and Migrants in South Africa and Others v. Minister of Home Affairs and Others, [2011] 573756/11, ZANGHC; Scalabrini Centre, Cape Town and Others v. Minister of Home Affairs and Others, [2017] 1107/2016, ZASCA.

4 While outside the scope of this paper, more recent protests by refugees starting in 2018 in Cape Town have targeted UNHCR offices and occupied urban spaces. The municipality has taken legal action to have protestors removed from these and related areas (Margele, 2019).

5 Interviews, 22 February 2018; 12 March 2018; 13 March 2018.

6 See the Democratic Alliance (DA) Immigration Plan, 15 October 2018 (https://www.da.org.za/2018/10/das-immigration-plan-will-secure-our-borders-and-stop-illegal-immigration).

7 The City of Johannesburg established a Migrant Help Desk in 2007 and the Johannesburg Migrants’ Advisory Committee (JMAC); see CoRMSA, 2011.

8 City of Cape Town v. All those adult male and females whose names are set out in Annexure “H51” to the founding affidavit and who reside at Bluewaters Site B and C, Lukannon Drive, Strandfontein Western Cape and Another, [2010] 5083/09, ZAWCHC.

9 Interviews, 17 November 2017; 31 January 2018; 16 February 2018.

10 Minister of Home Affairs and Others v. Watchenuka and Another, [2003] 10/2003, ZASCA.

11 Union of Refugee Women and Others v The Director: The Private Security Industry Regulatory Authority, [2006] 39/06, ZACCT.

12 Research was approved by the Institutional Review Board at UCLA (IRB#16-000991). Interview participants provided prior signed informed consent.

13 ANC “Peace and Stability” Policy Discussion Document, March 2012.

14 See Refugees Amendment Act 33 of 2008, Refugees Amendment Act 12 of 2011, and Refugees Amendment Act 11 of 2017. The amendments in these acts were implemented with the Refugee Regulations, 19 December 2019 and officially enacted on 1 January 2020.

15 Interview, 12 March 2018.

16 Since March 2020, RROs were closed for in-person services due to Covid-19 regulations and an online renewal process was implemented. RRO re-openings have been delayed as compared to other government services (Washinyira, 2021).

17 Interview, 16 March 2018.

18 The department only registered 24,174 new asylum applications in 2017 (Department of Home Affairs Annual Report 2018).

19 Minutes of the Stakeholder Consultation Pertaining to the Future of the Cape Town Refugee Reception Office, 5 December 2013, accessed in Scalabrini Centre and Others v. The Minister of Home Affairs and Others, [2016] 8132/14, ZAWCHC.

20 See Minister of Home Affairs and Others v. Somali Association of South Africa and Another, [2015] 831/13, ZASCA, Judgment, 25 March 2015, paras. 21-22; Scalabrini Centre, Cape Town and Others v. Minister of Home Affairs and Others, [2016] 8132/14, ZAWCHC, First to Fourth Respondents Answering Affidavit, para. 121.

21 The Director-General has referred to the Musina RRO as a “processing centre” in addition to the proposed Lebombo office; see Portfolio Committee on Home Affairs, 19 May 2020, https://pmg.org.za/committee-meeting/30253/.

22 Director-General, Home Affairs, 7 February 2014, accessed in Scalabrini Centre, Cape Town and Others v. Minister of Home Affairs and Others, [2017] 1107/2016, ZASCA.

23 E.g. Scalabrini Centre, Cape Town and Others v. Minister of Home Affairs and Others, [2016] 8132/14, ZAWCHC, Judgment, 26 June 2016.

24 Scalabrini Centre, Cape Town and Others v. Minister of Home Affairs and Others, [2017] 1107/2016, ZASCA, Judgment, 29 September 2017, para. 63.

25 Minister of Home Affairs and Others v Somali Association of South Africa and Another, [2015] 831/13, ZASCA, Judgment, 25 March 2015, para. 28.

26 Accessed in DeGaulle Kiliko and Others v Minister of Home Affairs and Others, [2008] 2739/05, ZACGHPD.

Additional information

Funding

The work was supported by a U.S. Department of Education Fulbright-Hays Doctoral Dissertation Research Abroad (DDRA) Fellowship under Grant [number P022A160059]. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not necessarily reflect the views of the U.S. Department of Education.