The Legal Protection Available to Refugees in South Africa

South Africa is home to one of the largest refugee and asylum-seeker populations on the African continent. The country's constitutional commitment to human dignity and equality, combined with its international obligations, affords refugees a significant degree of legal protection. This article provides an overview of the rights and protections available to recognised refugees in South Africa.

The Legislative Framework

The primary domestic legislation governing refugees in South Africa is the Refugees Act 130 of 1998, as amended. This Act gives effect to South Africa's obligations under the 1951 United Nations Convention Relating to the Status of Refugees and its 1967 Protocol, as well as the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa.

Who Qualifies as a Refugee?

A refugee is a person who has been granted formal recognition of refugee status by the Refugee Status Determination Commissioner. A person qualifies if they are outside their country of origin and are unable or unwilling to return because of a well-founded fear of being persecuted for reasons of race, religion, nationality, political opinion, or membership of a particular social group. Persons fleeing generalised violence, external aggression, or events seriously disturbing public order in their country of origin also qualify.

The Right of Non-Refoulement

Perhaps the most fundamental protection afforded to refugees and asylum seekers is the principle of non-refoulement — the prohibition on returning a person to a country where they face a risk of persecution or serious harm. This principle is enshrined in both the Refugees Act and the Constitution of the Republic of South Africa. Home Affairs is legally prohibited from deporting a person who has lodged an asylum claim or who has been recognised as a refugee.

Rights of Recognised Refugees

Once formally recognised as a refugee, a person is entitled to a range of rights under South African law, including:

•  The right to remain in South Africa and be issued with a refugee identity document.

•  The right to seek employment and to work in South Africa without restriction.

•  The right to access basic healthcare, including in public hospitals and clinics.

•  The right to access basic primary and secondary education for children.

•  The right to own property and enter into contracts.

•  The right to apply for permanent residence after five years of recognised refugee status.

Challenges Facing Refugees in Practice

Despite these legal protections, refugees in South Africa frequently face practical challenges, including delays in the processing of asylum claims, discrimination, difficulties opening bank accounts, and unlawful detention. The Refugee Appeals Authority and the courts have been called upon numerous times to vindicate the rights of refugees against unlawful Home Affairs conduct.

Legal Assistance Is Available

Navigating the refugee status determination process is complex and emotionally challenging. Whether you are a new asylum seeker, an existing refugee whose permit requires renewal, or a refugee who has been subjected to unlawful treatment, Ndou Attorneys Inc. is equipped to assist you in asserting your rights under South African and international law.