The Office of the Regional Representative of the United Nations High Commissioner for Refugees in South Africa (UNHCR) welcomes the opportunity to comment on the Social Assistance Bill 2003. UNHCR is of the opinion that the Bill affects the welfare and basic rights of refugees whose stay in the country is legal and authorized under the laws of the Republic of South Africa. The fact that we submit these comments emanates from UNHCR’s global mandate by virtue of the United Nations General Assembly Resolution 428.V of 14 December 1950. This mandate confers the responsibility on behalf of the United Nations to the Organization to ensure that refugees enjoy and exercise basic rights in the countries where they are recognized. With this mandate in mind, UNHCR has a justified interest in advocating for the extension to refugees of this Bill, which is aimed at standardizing the provision of social grants for everyone in the country.

It should be noted that there are currently, approximately, 25,000 recognised refugees in South Africa. Of this population, it has been noted that the vast majority are young and productive and capable of attaining self-reliance. Consequently only a small population of particularly vulnerable refugees meeting the criteria set out in the Bill would require the assistance of the Government.

UNHCR’s comments are based on the following considerations:

1. The Republic of South Africa is a member of the United Nations (UN) and the African Union (AU) and has signed and ratified key international legal instruments aimed at protecting and assisting refugees. These include the "United Nations 1951 Convention Relating to the Status of Refugees", the "1967 Protocol Relating to the Status of Refugees", as well as the "1969 OAU Convention Governing Specific Aspects of Refugee Problems in Africa". By virtue of the Constitution of South Africa (Chapter 14) the Republic is bound to implement the international agreements which it has signed and ratified. It should be noted that UNHCR is charged with the responsibility of supervising the application of international agreements relating to refugees.
2. Under the provisions of Article 23 and Article 24 of the 1951 UN Refugee Convention, South Africa is obliged to accord refugees lawfully staying in the country the same treatment as is accorded to nationals with respect to public relief and assistance, as well as social security.
3. South Africa has also enacted its own refugee legislation; namely, the 1998 Refugees Act (No 130/1998). In accordance with Section 6 of the Refugees Act, the three treaties cited in paragraph 1 above must be used as guidance in interpreting South African law.

More specifically, Section 27 of the Refugees Act 1998 provides that recognized refugees are entitled to equal protection of the law and that they enjoy full legal protection which includes the rights set out in Chapter 2 of the South African Constitution. This Chapter, which contains the Bill of Rights, provides under Section 27 (1,c) that "everyone has the right to have access to social security including, if they are unable to support themselves and their dependents, appropriate social assistance."

We thus submit that, in addition the arguments developed in paragraph 2, also the national South African legislation, specifically the 1998 Refugees Act, prescribes that, with reference to social security, refugees should be treated in the same manner as nationals.

4. Consequently, UNHCR is of the view that the formulation "everyone" in Section 27 of the Constitution must include refugees for whom the Republic has legally binding international as well as constitutional obligations. UNHCR further submits that to argue otherwise would unreasonably limit the rights of refugees under the Constitution and the benefits to which they are entitled under international and national law.

 

Part 2: Standards applied by the Social Assistance Bill 2003

5. In its Preamble, the current version of Social Assistance Bill reaffirms the principle of universal access to social security. The Bill is aimed at creating uniform norms and standards, which are applicable countrywide. Against this background, UNHCR is of the view that the provisions of Section 5 of the Bill, which are key to the issue of standards, contain a tragic omission as they exclude refugees, who are lawfully in the country, from their application. UNHCR believes that this omission creates a situation in which refugees would be denied the enjoyment of their rights under the Constitution, as well as the South African Refugees Act.
6. UNHCR has taken note of the "Report of the Committee of Inquiry on Comprehensive Systems of Social Security in South Africa", dated March 2002. Page 31 of this report reads in part:

The report further recognizes that there are large gaps and inadequacies in the current social assistance system. We note with concern and regret that refugees are excluded form the Bill, notwithstanding the above quoted important observations made by the Committee.

Part 3: Refugee Children (unaccompanied minors and separated children)

UNHCR wishes to submit a specific proposal for the separate inclusion of "refugee children" in the Bill. UNHCR has noted the conclusions in Chapter7 of the "Report of the Committee of Inquiry on Comprehensive Systems of Social Security in South Africa", which deal extensively with the rights of children. The following observation of the Committee is worthy noting: "[n]on-South African children should be allowed to access [foster care] grants. This means that the Department of Home Affairs should ensure that all resident children are speedily issued with appropriate documents.

Under articles 22 and 23 of the United Nations Convention on the Rights of the Child, States are obliged to offer special protection to refugee children whether or not they are accompanied by their parents or relatives. Such children are vulnerable and require specific assistance and protection. The Republic of South Africa has signed and ratified this UN Convention.

In accordance with the above, UNHCR wishes to propose that the Bill provide for specific provisions aimed at providing social assistance to refugee children, in particular to separated children and unaccompanied minors. These provisions should be formulated in addition to the recommendations contained in Part 2 above.

1. Section 5 of the Bill should be amended to include reference to the category of "refugees", as beneficiaries of social assistance subject to the same criteria and standards as South African citizens.
2. Section 5 should be amended to include reference to the specific situation and rights of refugee children (see part 3). Alternatively, if the inclusion of such a small and specific group of refugee beneficiaries would not be possible under Section 5, then UNHCR recommends that specific mentioning of refugee children is included in the Sections dealing with specific grants aimed at children, such as disability grants, care dependency grants, foster child grants and child support grants.

With this submission, UNHCR is advocating for the incorporation within the Social Assistance Bill of a specific segment of South Africa’s non-citizen population to which the State has extended its protection. These are refugees, who have lost the protection of their own countries and who are lawfully residing in the Republic of South Africa. Under the Constitution and other national legislation, South Africa has accepted the responsibility to accord this category of non-citizens equal protection of law and access to social assistance, as is provided to its own citizens. Consequently, UNHCR is of the opinion that refugees must be included in the social security schemes and social assistance, provided for in the Bill under review.