AGENCY FOR REFUGEE EDUCATION, SKILLS TRAINING & ADVOCACY (ARESTA)
Submission to the Portfolio committee on Social Development on

‘The Social Assistance Bill’

Submitted on 18 September 2003 by

With the high instances of Xenophobia in South Africa and the limited assistance to refugees, it is important that the best rights of non-citizens be implemented with regards to Social Development. Drawing from other sources this submission will attempt to highlight the exclusion of refugees from the Social Assistance Bill and analyse the problems and pitfalls that prevail within this bill. Given that we have an obligation under international law and according to the implementation of certain local Acts these factors should not be the case.

The introductory preamble to the Social Assistance Bill states that:

"SINCE the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), provides that everyone has the right to have access to social security, including, if they are unable to support themselves and their dependants, appropriate social assistance, and obliges the state to take reasonable legislative and other measures, within its available resources, to achieve the progressive realizations of each of these rights;"

South Africa has signed, ratified and incorporated the 1951 Geneva Convention and the 1969 OAU Convention, which deals with the status of refugees. The following ARTICLES from the Geneva Convention 1951 are important to note:

ARTICLE 23 Public Relief

The contracting States shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.

ARTICLE 24 Labour legislation and Social Security

1. The contracting States shall accord to refugees lawfully staying in their territory the same treatment as is accorded to nationals in respect of the following matters:

(b) Social Security (legal provisions in respect of employment injury, occupational diseases, maternity, sickness, disability, old age, death, unemployment, family responsibilities and any other contingency which, according to national laws or regulations, is covered by a social security scheme) ……………..

Though these Conventions refugees possess the right to obtain social assistance, which should be accessed using the same criteria applicable to South African Citizens. These terms are stated in sections 6, 7, 8, 9, 10, 11or 12 in Chapter 2 of the Social Assistance Bill.

South Africa manages to attract a variety of migrants. It is important that refugees should not be viewed in the same light as economic migrants or illegal aliens. The general public through ignorance, should not mistakenly heap refugees into the same grouping as all foreigners from Africa. There is a need to distinguish here between an asylum seeker and refugee, as this submission is advocating for the latter to be included as beneficiaries of the social assistance in the Social Assistance Bill.

The Refugee Act 130 of 1998 adopts the definitions of a person who qualifies as a refugee from the 1951 Geneva Convention and the 1969 OAU Convention with extended definitions:-

Refugee Status

3. Subject to Chapter 3. a person qualifies for refugee status for the purpose of this ACT if that person –

    1. owing to a well – founded fear of being persecuted by reason of his race or her race, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it: or
    2. owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere: or
    3. is a dependant of a person contemplated in paragraph (a) or (b)
    4. The Refugee Act states in the following sections : -

      Section 4(1)

      A person does not qualify for refugee status for the purpose of this act if there is a reason to believe that he or she-

    5. enjoys the protection of the any other country in which he or she has taken residence

Section 5 (1)

A person ceases to qualify for refugee status for the purpose of this Act if-

(a) he or she voluntarily re-avails himself or herself of the protection of the country of his or her nationality

Thus it would be difficult to argue that refugees should benefit from any Social Assistance as the Social Assistance Bill states in the application and implementation of Act (pg 4).

Section 2.(1)

A person who is not a South African citizen has the same rights and obligations in terms of this Act as a South African citizen if an agreement, contemplated in section 231(2) of the Constitution, between the Republic and the country of which that person is a citizen makes provision for this Act to apply to a citizen of that country who resides in the Republic.

Why should a refugee producing country have an agreement with the Republic with regards to their citizens accessing the Social Security Grants, if these citizens are fleeing from the protection of that country? Section 2. (1) of this Bill thus excluded refugees from accessing the grants. It is important that they are included.

The Refugee Act states in Section 30 (1) that refugees should be issued with an identity document, which would cause a foreseeable problem in them accessing Social Assistance. The problem here lies in the enormous backlog at the Department of Home Affairs in processing the applications for these Identity document. Unfortunately there is a very few refugees who have been issued with such documents . In the Social Assistance Bill it states:-

Section 5(2)

(d) proof of and measures to establish or verify identity, gender, age, citizenship, family relationships, care dependency, disabilities, foster child and war veterans’ status;

Too often this factor is used as an excuse to limit the access of refugees to benefits or services in South Africa.

The case of Louis Khoza & others vs Minister of Social Development & others, which confirmed the rights to social benefits of permanent residents who were previously classified as refugees is an important case to note. It would be logical to extend the thinking of this case to include the rights of recognised refugees, giving them access to social assistance.

In conclusion, the exclusion of refugees from the Social Assistance Bill and their inability to apply for social assistance is a grave oversight. South Africans are only too quick to forget that many of their brothers and sisters were afforded these rights during the dark days of apartheid, when they took up political asylum in our neighbouring countries or overseas. It is typical of people to forget that refugees are disenfranchised and originate from areas that have experienced bloodshed and war. It is in this light that we should be able to extend a hand of assistance to these people whose Human Rights should not be disregarded. The importance that our country acknowledges the fact that we are bound as signatories of International laws is paramount. Not only does the Social Assistance Bill disregard the rights of refugees, it also infringes on their right to dignity as entrenched in the South African Constitution.