25 May 2020
THE HONOURABLE MINISTER OF HOME AFFAIRS
DR. AARON MOTSOALEDI
230 JOHANNES RAMOKHOASE
By email: Minister@dha.gov.za
Minister of International Relations and Cooperation, Dr Naledi Pandor
DHA Acting Director General ADG Jackie McKay
DHA Acting Deputy Director General : Immigration Services
ADDG Modiri Matthews
The South African Human Rights Commission- Commissioner Angie Makwetla
UN Agencies in charge of Migrants (workers) & Refugees
(UNHCR; IOM; ILO)
Dear Dr Motsoaledi
CLASS APPLICATION IN TERMS OF SECTION 30(2) OF THE IMMIGRATION ACT 13 OF 2002 (as amended) (“the Act”)
1. The Southern African Migration Network (SAMIN) is a coalition of twenty-five civic society organisations from Southern Africa. The objectives of SAMIN include advocating for the best practices in migration that align with the United Nations international instruments on migration as well as the Africa Union (AU) and Southern African Development Community (SADC) protocols on migration.
2. We wish to address you on behalf of various affected persons who were declared as undesirable persons in terms of Regulation 27(1)(c) of the Regulations to the Act (“the Regulations”) during their repatriations from South Africa under the current Covid-19 Level Four Regulations.
3. In preparation of submission of this application to you, we have consulted various migrants; stakeholders from civic society; religious organisations; community organisations; businesses; activists and other interested parties.
4. It is common cause that South Africa has been a preferred destination for many migrants from Africa, particularly those from SADC. It is perceived as the land of opportunities by entrepreneurs as well as those wishing to pursue formal employment. South Africa is also a hub for cross border traders who travel frequently in and out of the country for acquisition of stock.
5. South Africa was not spared from the Covid-19 Pandemic. On 15 March 2020 the honourable President Cyril Ramaphosa declared a national state of disaster in terms of the Disaster Management Act 57 of 2002 (as amended). Pursuant thereto, the President announced a nationwide lockdown on 23 March 2020 which came into effect on 27 March 2020. As part of the Covid-19 measures, South Africa’s borders were closed from 27 March 2020 for travel except for the return of South African citizens and permanent residents. Many migrants and visitors had visas or permits that were still valid but would expire on or after 27 March 2020. It was clear that many of them would not be able to leave South Africa between 23 March 2020 when the President announced the lockdown and 27 March 2020 when the lockdown commenced. Accordingly, you stated on 25 March 2020 that foreign nationals would not be penalised if their visas or permits had an expiry date falling within the lockdown period. As at date hereof, South Africa remains under lockdown.
6. With the nation’s move from the nationwide lockdown at level five to alert level four, repatriation of non-South African citizens became permissible from 1 May 2020. At that stage, South Africa had been under a hard lockdown for five weeks (“level five lockdown”). Many people lost wages or income from their self-employment making their continued stay in South Africa unsustainable. On the strength of your above-mentioned statement on 25 March 2020, some people opted for repatriation without any concerns about their residency status in the country at the time.
Events which necessitated this Application
7. On 6 May 2020, the first group of people for repatriation to Zimbabwe via the Beitbridge Border Post embarked on their journey. More groups departed thereafter for Zambia, Malawi and other SADC countries. Contrary to what the travellers expected, they were penalised by officials from your department on their departure from South Africa. The affected travellers may be categorised as follows:
7.1. those who were visiting South Africa whose visitors’ visas expired during the level five lockdown;
7.2. those who had temporary residency visas that expired during the level five lockdown; and
7.3. those whose visas or permits expired before the level five lockdown and they were still in the process of legalising their stay in South Africa.
8. To the best of our knowledge, the majority of the travellers were declared undesirable persons for a period of five years in terms of regulation 27(1)(c) of the Act on the basis that they had overstayed for more than thirty days.
Appeal to the Honourable Minister
9. It appears that your assurance to foreign nationals on 25 March 2020 was not reduced to writing in the form of a binding directive to be followed by officials from your department. In the absence of a directive to guide your officials at the Beitbridge Border Post on how to process travellers falling within the categories in paragraphs 7.1 to 7.3 above, the officials were bound by and acted in terms of section 30(1)(h) of the Act. Consequently, they proceeded to declare such travellers as undesirable persons in terms of regulation 27(1)(c) of the Act.
10. As the honourable President has reiterated on many occasions, we are all sailing in unchartered waters. There is a lot of uncertainty for what lies ahead globally. What is clear though is that the status of undesirable person is detrimental. It not only prohibits such persons from entering South Africa but also prejudices them when applying for visas into countries such as the United States of America, Australia, and Schengen states. The undesirable person status is likely to result in their visa applications to other countries being rejected on the grounds that they were once illegal residents in another country, namely South Africa.
11. Today marks the 57th anniversary of the establishment of the Organisation of African Unity (OAU), which is commonly referred to as Africa Day. The OAU’s aims included the promotion of political, economic and social integration among African States. The transformation of the OAU into the African Union (AU) on 9 July 2002 was aimed at achieving greater unity, cohesion and solidarity between African countries. This year, South Africa is celebrating Africa month under the theme of “Silencing the Guns, Creating Conducive Conditions for Africa’s Development and intensifying the fight against the COVID-19 pandemic”.
12. We respectfully submit that the imposition of an undesirable person status on hundreds of fellow Africans during these unprecedented and extremely trying times for all is simply not aligned with what the founding fathers of the OAU fought for. We further submit that it goes against the spirit of ubuntu – South Africa’s guiding principle of the way others should be treated. In the words of the late father of the nation, Nelson Mandela: “[A] traveller through a country would stop at a village and he didn’t have to ask for food or for water. Once he stops, the people give him food, entertain him. That is one aspect of ubuntu.”. The manner in which the travellers in question were treated certainly cannot promote African unity or deeper regional integration or recommit Africa to a common destiny. Such conduct will prevent the realisation of the AU’s vision of Agenda 2063.
13. In the circumstances, we humbly request that the grounds of undesirability that were issued to foreign nationals who opted for repatriation be waived.
14. We further request that a directive be issued by your offices and duly circulated to all ports of entry. This will ensure a uniform and correct treatment of any further travellers falling within the categories in paragraphs 7.1 to 7.3 above.
15. The Coronavirus Epidemic continues to wreak havoc globally. Many have been hard hit financially and are desperate to once again eke out a livelihood. We therefore cannot over emphasise the urgency of your decision on this issue.
16. We now await receipt of your decision herein.
On behalf of SAMIN,
Mr Zoe Nkongolo, Africa Unite Director
6 Spin Street
Cape Town, 8001
Tel: 021 4616551/ 083 9588133