Barely a month until the local government election and the July Constitutional Court ruling has suddenly been resurrected and thrown a spanner in the works. The #Abahambe lot, specifically Jacinta Ngobese-Zuma has come out guns blazing, glibly uttering a slip-up that has seen Black Twitter intent on mopping the floor with her. In the face of the preceding anti-immigration sentiment that has captured local attention for the better part of the year, the ruling was bound to be met by disdain, conspiracy theory and all manner of impassioned responses.
Precisely because the anti-immigration fringe was itself premised on fear mongering, misrepresentation of facts, a general ignorance of law and elements of tribalism, the apex court’s ruling was never going to find acceptance as an innocuous interpretation of and a guide towards the upkeep and advancement of the nation’s laws but as some sort of affront on the rights of South Africans. It seemed to be exactly the tinderbox that the Abahambe fringe needed to once more drive home the point that the SA government and laws favour migrants to locals.
The law in question is that of sections 22(12) and 22(13) of the Refugees Act which the ConCourt found to be unconstitutional and unlawful. In a nutshell, the apex court upheld an earlier finding by the Western Cape High Court that had reached a similar conclusion earlier in the year, more specifically in the ‘good cause’ interview where an asylum seeker who enters the country through ‘unauthorized ports of entry or who failed to report to a Refugee Reception Office within five days of entry—had to pass a preliminary ‘good cause’ or ‘valid reasons’ interview with an official.’ If the applicant then failed to ‘legally justify why they entered irregularly or missed the five-day window, they were barred from lodging an asylum application and faced immediate detention or deportation.’
Although Home Affairs had – in light of a possible overwhelming of the department’s administrative capabilities – fought to sustain these rules, the courts eventually ruled that such technical migration processes could not be used to deny asylum access. On Friday morning, Home Affairs Minister Leon Schriber appeared on Newzroom Afrika to explain the latest developments that had since transpired in his department.
‘Obviously when a Constitutional Court judgment is issued … then steps must be taken to give effect to that judgment. That’s effectively what the department did here as an operational matter. However, what is important to say is that we now know facts that the court order could not have foreseen … for example the fact that Home Affairs refugee reception offices have been overwhelmed. The risk to life and I think the safety of our Home Affairs officials is top of mind as well as some of the issues in public affairs and public order. And so when the facts shift then that is where you then shift the position,’ said Schriber.
Although pointing out that despite his department’s arguments in court pertaining to issues around possible violence, they continue to respect the court’s ruling ‘which is why there was this good faith attempt to actually implement it as it was handed down but … The reality is that we can’t be responsible custodians if we see that this judgment and the way that it is implemented has led to these facts on the ground and I think that is what we are responding to and which I think is the responsible thing to do.’
A directive signed by acting director-general Thulani Mavuso and which was released on 28 September had basically given instruction to all Refugee Reception Offices (RROs) to accept asylum applications from individuals regardless of how they entered South Africa, was according to Schreiber signed without his go-ahead. It appeared to be one of the stirrers of the backlash and has since (Friday, October 9) been withdrawn.
In a more accessible breakdown as to how we got here journalist Mandy Weiner explains that around 2020 new laws were introduced which required asylum seekers to first attain a transit visa (which was hard to get) in order to bring an application forward.
This was worsened by the closing of refugee centres during the Covid pandemic and which then prompted the Scalabrini Centre of Cape Town to approach the Western Cape High Court. Although the ConCourt already ruled in July on the matter, the issue that has led to the sudden mayhem is a circular released by the Department of Home Affairs which requested the reopening of these centres so that they could receive applications from asylum seekers.
Although the inter-ministerial committee met this past Wednesday evening, at a briefing on Thursday morning they ‘were at pains to try and explain that what this judgment does not do is immediately grant asylum or refugee status. It doesn’t mean that because these applications are going to be submitted that they are going to be granted.’ This was partly the miscommunication that led to the instantaneous uproar that has consumed a substantial portion of SA society.
By Thursday evening Soweto residents were protesting, torching vehicles and at least one building and engaged in looting. Their earlier action had seen them first marching down to the Home Affairs building in Orlando West ostensibly to express their personal grievances around the allowing of asylum applications to people who had entered the country ‘illegaly’ to begin with. Their argument on news platforms was to question why is it that government would bend over backwards for asylum seekers at the expense of locals, some of whom don’t even have IDs.
Also, why are a bulk of these asylum seekers were mostly male? If they are indeed fleeing persecution and wars in their native countrues, why do they leave their wives and kids behind? Spaza shops, jobs, they want to take over – the usual complaints were again reiterated. In no time reports of violence soon erupted from Durban as well. There, the Moore Road Refugee Reception Office became a scene of violence, cars being torched and the CBD being brought to a standstill accordibg to The Citizen.
Recent pronouncements by Ngobese-Zuma around Home Affairs challenging the Constitutional Court judgment as well as her broadsides against the United Nations did little to win her favour with the chattering class. But then again given how the relationship with her fellow partners Nkosikhona Ndabandaba and Ngizwe Mchunu has seemingly soured following their late-night meeting with President Cyril Ramaphosa, perhaps the ivory tower darkies were never really her target audience to begin with. Nor, for that matter, was the prospect of a political career.
One thing she has done quite effectively is to show just how pressing an issue the foreign question has become. At their outset, the newly-found Economic Freedom Fighters (EFF) would find themselves catapulted to some prominence by riding on the wave of a radical approach to issues of nationalisation. Herman Mashaba’s ActionSA gained traction as the party that would not only deal decisively with the matter of illegal immigrants but they would also exercise a firm hand on criminals. The Patriotic Alliance’s #Abahambe rallying call was a reliable crowd pleaser.
But none of those parties have done what Ngobese-Zuma has done, rising to the top of the national dialogue on – for the most part – a singular issue. Her messaging, although optimistic and simplified to snake oil conclusions has garnered her something of a cult following. She simply told her followers that once they’d gotten rid of illegal foreign nationals, then everything else would be fixable and attainable. Just like that and the masses followed her like the Piper. By early Friday morning, supporters from other towns were making it clear that they would be embarking on their own protest action on Friday.
With snaking queues of asylum seekers at these RRO’s on Friday morning, it seemed like things would get deteriorate into bloodshed. However, Schreiber’s quick withdrawal of the directive and his personal appearances on television to try to allay people’s tempers and grievances may have achieved at least three immediate positives. One: it would’ve quelled some of the disinformation on the ground, two: it no doubt would’ve have made communities (especially the hard-core xenophobic) that their message was being heard in the right places, three: it stopped in its tracks what by 9am was beginning to seem like an encircling lynch mob itching to act.
Featured image: An image that has been flagged by the Department of Home Affairs as fake news in the midst of the asylum seekers issue. Source: Department of Home Affairs Facebook page.