1.4. Objetivos de la Investigación 10
2.1.4. Cebolla Colorada 36
2.1.4.15. Acciones tomadas para la importación de cebolla colorada al Mercado
This chapter deals with the question whether asylum-seekers are entitled to the right to public relief and assistance as evinced by article 23 of the Geneva Refugee Convention. This mandatory provision requires host states to confer on refugees ―lawfully staying‖ in their territory the same public relief and assistance schemes enjoyed by citizens.669 This provision is fundamentally important to the recognition and treatment of refugees, since it is pro-poor and benefits refugees who are in the most precarious and distressful situations.
In South Africa, the right to public relief and assistance is not expressly protected by the South African Constitution or, by extension, the Refugees Act, as amended. However, section 27(1) of the South African Constitution recognises the right of everyone to have access to sufficient food, water and social security, including the right to ―appropriate social assistance‖ where they are unable to support themselves.670 These constitutional safeguards impose an obligation on the South African government to ensure that every individual has a right to an adequate standard of living, including improvement of the quality of life.671 Social assistance and social insurance (or occupational insurance, as it is also known) are social security schemes designed to protect those individuals who struggle to make ends meet.672 The former is a non-contributory social security scheme, which is funded by the state through government revenue.673 It is designed to protect those who ―are
669 Art 23 of the Geneva Refugee Convention.
670 S 27(1)(a)-(b). The concept of social assistance is defined under s 1 of the Social Assistance Act
13 of 2004 to mean a social grant including social relief of distress.
671 Socio-economic rights impose an obligation on the state to take positive measures to ensure a life
of dignity for all inhabitants of South Africa and to increase their well-being. See, for example,
Grootboom paras 1-2.
672 J D Triegaardt ―Accomplishments and challenges for partnerships in development in the
transformation of social security in South Africa‖ (27-02-2006) Development Bank of Southern Africa
<http://www.dbsa.org/EN/About-
Us/Publications/Documents/Accomplishments%20and%20challenges%20for%20partnerships%20in %20development%20in%20the%20transformation%20of%20social%20security%20in%20South%20 Africa.pdf> (accessed 03-07-2015) 3 and South African Human Rights Commission ―Social Security, Social Assistance, and Social Services for Children‖ (2000)
<http://www.sahrc.org.za/home/21/files/Reports/3rd%20ESR%20report%20chapter_2.pdf> (accessed
03-07-2015) 11.
673 Triegaardt ―Accomplishments and challenges for partnerships in development in the transformation
of social security in South Africa‖ (27-02-2006) Development Bank of Southern Africa 3. See too Currie & de Waal Bill of Rights 251.
unable to support themselves and their dependants‖.674 The latter is a contributory
social security scheme, funded by employers and employees on the basis of an agreed percentage of their wages. It is designed to safeguard employers and employees, along with their dependants, through insurance, against contingencies which disrupt their means of livelihood.675 These two forms of social security are also recognised under the Geneva Refugee Convention. Article 23, which recognises the right to public relief and assistance, can be taken to refer to non-contributory social security schemes, whereas article 24, which recognises rights relating to social security and protection against unemployment, is broad enough to encompass contributory social security schemes as well.
The Refugees Act was designed to give effect to the rights set forth in the refugee conventions,676 the UDHR, and other human rights instruments.677 Section 27(b) of
the Act states that a refugee is entitled to full legal protection, which includes the rights in the Bill of Rights, while section 27A(d) provides that an asylum-seeker is entitled to the rights in the South African Constitution, in so far as those rights apply to an asylum-seeker. It was also confirmed in a number of cases that the rights contained in the Bill of Rights are applicable to refugees and asylum-seekers.678 This seems to suggest that refugees and asylum-seekers have access to the social security system by virtue of section 27 of the Constitution.
While recognised refugees can, in principle, become beneficiaries of social assistance in terms of the Social Assistance Act, the same does not apply to asylum- seekers who are unable to support themselves and their families.679 They are
accordingly expected to support and integrate themselves. Despite the fact that they are in a desperate situation given that their means of livelihood have been disrupted in a fundamental way, asylum-seekers are not covered by the Social Assistance Act 13 of 2004, which is designed to secure the well-being and dignity of poor families through the provision of social grants.
6743. See too Currie & de Waal
Bill of Rights 251. 6753. See too Currie & de Waal
Bill of Rights 251.
676 The Geneva Refugee Convention and the African Refugee Convention. 677 For example, the ACHPR, the ICESCR and the ICCPR.
678 The rights in the Bill of the Rights apply to everyone living in South Africa irrespective of whether
they are citizens or non-citizens or of whether they are legal or illegal foreign nationals or of whether a foreign nationals is at the port of entry. See Tafira v Ngozwane TPD case no 12960/06; Tantoush v Refugee Appeal Board TPD 11-09-2007 case no 13182/06 para 64; Lawyers for Human Rights v Minister of Home Affairs 2004 4 SA 125 (CC) paras 26-27; and Watchenuka para 25.
Asylum-seekers‘ right to public relief and assistance will therefore be analysed in light of the right to have access to an adequate standard of living, guaranteed by international human rights texts,680 which is impliedly given effect by section 27 of the
South African Constitution. The chapter will examine the relationship of this right with the right to appropriate social assistance, guaranteed by section 27(1)(c) of the South African Constitution and given content by the Social Assistance Act. In the course of this analysis, court judgments holding that refugee rights must be understood and applied in a humanitarian context will be taken into consideration.681 Refugee rights will be analysed in view of the need to promote ―human dignity, human welfare, and the alleviation of suffering‖,682 and the constitutional demand to interpret legislation in a way which is consistent with the spirit, purport and objects of the South African Constitution.683
This chapter will outline the views of national and international courts in respect of access to social assistance (or social safety nets) for indigent and vulnerable refugees and asylum-seekers. Attention will be given to the objectives that inspired the adoption of national and international refugee texts as set forth in their preambles.684 Foreign and international refugee frameworks will also be considered
to determine the nature of the treatment that should be accorded to those who are seeking asylum but are not yet recognised as refugees. It will be asked whether South Africa is bound by its own enactment of the Refugees Act to protect indigent and vulnerable asylum-seekers against humiliation and degradation caused by economic deprivation. The chapter will proceed to inquire into the constitutionality of the failure to take legislative and other measures to realise asylum-seekers‘ right of access to social assistance.
The chapter will argue that it is imperative to protect asylum-seekers from further social vulnerabilities, and will make recommendations as to how the social 680 See, for example, art 11 of the ICESCR and arts 6(2) and 27 of the CRC.
681
Radjabu v The Chairperson of the Standing Committee on Refugee Affairs WCD 04-09-2014 case
no 8830/2010 para 7.
682 Para 7.
683 See, for example,
Investigating Directorate: Serious Economic Offences v Hyundai Motor Distributors (Pty) Ltd: In re Hyundai Motor Distributors (Pty) Ltd v Smit NO 2001 1 SA 545 (CC) paras
22-6; De Beer NO v North-Central Local Council and South-Central Local Council (Umhlatuzana Civic Association Intervening) 2002 1 SA 429 (CC) para 24; Daniels v Campbell NO 2004 5 SA 331 (CC)
paras 43-6; Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 4 SA 490 (CC) para
44.
684 See the Preambles to the Refugees Act, the Geneva Refugee Convention and African Refugee
assistance policy should be formulated and interpreted to ensure that all refugees lawfully staying in South Africa are protected.
4 2 Beneficiaries of social grants
The Social Assistance Act, which repealed the Social Assistance Act 59 of 1992 and came into operation in April 2006, was adopted to give effect to the state‘s obligation in terms of section 27(1)(c) of the South African Constitution. The Social Assistance Act focuses on the administration of social assistance in the form of social grants and social relief and distress (―SRD‖).685 The concept of a social grant
refers to social protection in the sense of a non-contributory social security scheme. It is said to form part of ―the government‘s various initiatives to improve the quality of lives of the millions of [vulnerable people] who live in abject poverty with little or no means to improve the quality of their lives‖.686 There are seven different categories of
social grants, such as a child support grant, a care dependency grant, a foster child grant, a disability grant, an older person‘s grant, a war veteran‘s grant and a grant-in- aid.687 Social assistance schemes are, as Triegaardt explains, directed at uplifting poor families out of chronic poverty or transient poverty.688
Under section 5(1)(c) of the Social Assistance Act, social assistance schemes are limited to South African citizens and members of a group or category of persons prescribed by the Minister of Social Development.689 Nevertheless, section 2(1) of
the Social Assistance Act takes into cognisance the principle of reciprocity. It states that social assistance could apply to a non-citizen in cases where an agreement contemplated under section 231(2) of the South African Constitution has been 685 S 1 of the Social Assistance Act.
686 M P Olivier
Introduction to Social Security Law (2006) 25. 687 S 1 of the Social Assistance Act.
688 Chronic poverty is defined as an adverse outcome of ―incapacity to work and earn‖ whereas
transient poverty is defined as an adverse outcome of ―a decline in the capacity [to work and earn] from a marginal situation that provides minimal means for survival with few reserves.‖ See J D Triegaardt Accomplishments and Challenges for Partnerships in Development in the Transformation of Social Security in South Africa (2006) 3.
689 S 5 of the Social Assistance Act describes eligibility for social assistance as follows: A person is
entitled to the appropriate social assistance if he or she (a) is eligible in terms of s 6, 7, 8, 9, 10, 11, 12 or 13; (b) subject to s 17, is resident in the Republic; (c) is a South African citizen or is a member of a group or category of persons prescribed by the Minister, with the concurrence of the Minister of Finance, by notice in the Gazette. The term South African citizen is defined under s 1 as ―a person who has acquired citizenship in terms of Chapter 2 of the South African Citizenship Act 88 of 1995, and includes any person who is (a) not a South African citizen and who prior to 1 March 1996 was in receipt of a benefit similar to a grant in terms of any law repealed by s 20 of the Social Assistance Act 59 of 1992; or (b) a member of a group or category of persons determined by the Minister, with the concurrence of the Minister of Finance, by notice in the Gazette‖.
entered into between South Africa and the country of which that person is a citizen, which makes provision for the Social Assistance Act to apply to citizens of that country who reside in South Africa. Although the Geneva Refugee Convention is one of the agreements contemplated under section 231(2) of the Constitution, refugees were not beneficiaries of social assistance schemes prior to the judgments handed down in the case of Khosa;690 Bishogo v The Minister of Social Development;691 and Scalabrini Centre, Cape Town v The Minister of Social Development.692 It was only as a result of litigation that social assistance was extended to permanent residents and refugees.
The eligibility of permanent residents and refugees for social assistance was later recognised in terms of the Regulations Relating to the Application for the Payment of Social Assistance and the Requirement or Conditions in Respect of Eligibility for Social Assistance of 2008 and of 2012, respectively (―the Regulations to the Social Assistance Act‖).693 As from 1 April 2012, recognised refugees became co-
beneficiaries of all social grants, excluding the war veteran‘s grant.694 Under sections 2(e), 3(a), 6(1)(g), 7(1)(a)(i), 8(c) and 9(1)(b) of the Regulations to the Social Assistance Act, a person is eligible for an older person's grant, a disability grant, a child support grant, a foster child grant, a care-dependency grant, and social relief of distress, respectively, if he or she is a South African citizen, a permanent resident or a refugee. Refugees who are in receipt of an older person‘s grant or disability grant and are, due to their physical or mental condition, requiring regular attendance by another person, are also eligible for grant-in-aid in accordance with section 5 of the Regulations to the Social Assistance Act. However Daven Dass, Kaajal Ramjathan- 690 In
Khosa, former Mozambican refugees who became permanent residents challenged their exclusion from social assistance schemes. The Constitutional Court ruled that the exclusion of permanent residents from government grants – solely on the basis of citizenship – was contrary to the South African Constitution. The Court found that basing exclusion solely on nationality gave rise to unfair discrimination and severely infringed the right to human dignity.
691 TPD 09-2005 case no 9841/05 (consent order). In
Bishogo, the Department of Social
Development‘s refusal to pay a foster care grant to refugees who provided foster care to refugee children was challenged. The Minister agreed to pay social assistance in the form of a distress grant for three months whilst the necessary change could be made to the computer system to allow the capturing of the refugee documentation number.
692 TPD case no 32054/2005. In
Scalabrini Centre, the exclusion of disabled refugees from receiving
disability grants was challenged. The exclusion was found to be inconsistent with the constitutional rights to human dignity, equality and social assistance.
693 Regulation Gazette R898 GG 31356 of 22 August 2008 in respect of permanent residents and
Regulation Gazette 9728 GG 35205 of 30 March 2012 in respect of refugees.
694 Regulation Gazette 9728 GG 35205 of 30 March 2012, which came into effect on 1 April 2012,
amended reg 1 of Regulations to include refugees, as defined in section 1 of the Refugees Act 130 of 1998, in the beneficiaries of the social grants, more precisely, citizens and permanent residents.
Keogh and Fatima Khan argue that these social grants are provided by the state under limited circumstances.695 Refugees who do not meet the criteria, as
contemplated by the Social Assistance Act and its Regulations,696 cannot be assisted.
This chapter does not seek to address the barriers arising from the requirements of social assistance schemes. Instead, it focuses on the absolute exclusion of asylum-seekers from social grants. The chapter will accordingly investigate whether asylum-seekers fall within the scope of refugees ―lawfully staying‖ within the South African borders as envisaged by the Geneva Refugee Convention. It will then proceed to explore whether they are entitled to equal treatment as accorded to South African citizens, permanent residents and recognised refugees as far as social security in the form of social assistance is concerned.
4 3 Nature and scope of the concept of refugees lawfully staying
The question whether asylum-seekers are entitled to the right to public relief and assistance hinges on a second question: whether asylum-seekers qualify as refugees lawfully staying in the host country. Since there is no express mention of asylum-seekers under the Geneva Refugee Convention and the African Refugee Convention, this needs to be determined with reference to academic literature and case law.
4 3 1 The legal position of an asylum-seeker within the asylum framework
A narrow or a broad interpretative approach can be used to determine the legal position of an asylum-seeker. The narrow interpretation is based on the definition of asylum as ―[t]he grant, by a state, of protection on its territory to persons from another state who are fleeing persecution or serious danger‖.697 Based on this definition, it can be argued that asylum-seekers are still in the process of seeking a country of asylum. It cannot therefore be inferred from their ―mere‖ physical presence and residence within a country, that they have been afforded asylum, and hence the
695 D Dass, K Ramjathan-Keogh & F Khan ―The Socio-economic Rights of Refugees and Asylum-
seekers in South Africa‖ in F Khan & T Schreier (eds) Refugee Law in South Africa (2014) 230. 696 Regulations Relating to the Application for and Payment of Social Assistance and the
Requirements or Conditions in respect of Eligibility for Social Assistance, Proc R15 in GG 28652 of 31-03-2006 as amended.
697 K Jastram & M Achiron
refugee rights are not applicable to them. The bottom line is that asylum-seekers cannot claim refugee rights unless they are formally recognised as refugees.
On this narrow interpretative approach, the concept ―refugee‖ denotes a person who has been granted asylum by the state having jurisdiction and who is both a de jure and de facto refugee, while the concept ―asylum-seeker‖ implies a person who is, at most, a de facto refugee. Even though an individual enjoys the right to seek asylum, it has consistently been held that it falls within ―the prerogative power of the state to grant asylum‖,698 and that the individual does not enjoy a ―corresponding right … to be granted asylum‖.699 In other words, international refugee law does not expressly create a right to seek asylum; rather, it creates a right not to be refouled and then predicates certain rights that must be accorded to those seeking asyum (i.e. asylum-seekers) and to those granted asylum (i.e. refugees).700 In South Africa,
the situation of asylum-seekers is problematised as follows: Asylum-seekers are admitted into the country for the purpose of processing their asylum application and may be refused asylum if their applications are found to be fraudulent, abusive, or unfounded701 or if they are disqualified from refugee status in terms of section 4 or 5
of the Refugees Act. For this reason, they do not yet qualify as refugees and are not bearers of the same rights as legally recognised refugees. This approach clearly places asylum-seekers in a vulnerable position.
The broad interpretation of the legal position of an asylum-seeker, which bears more relevance to this chapter, is conceived in terms of the principle of non- refoulement and humane standards of treatment.702 The former prohibits a state from returning an individual to a country in which he or she fears persecution.703 The latter denotes the same standard of treatment which is afforded to human beings generally – regardless of their nationality and legal status – in accordance with constitutional and human rights norms and principles. In terms of the Geneva Refugee Convention, such standard of treatment must not be less favourable than that