The UN World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerances, hosted by South Africa in Durban from the 31^st August to the 8^th September 2001, made recommendations that among others `failure to combat and denounce racism, racial discrimination, xenophobia and related intolerance by all, especially by public authorities and politicians at all levels, is a factor encouraging their perpetuation’ (1).

South Africa’s foreign policy is based on the promotion of human rights, in the continent and the world at large, and since the advent of our constitutional democracy in 1994; South Africa’s role on the global arena has evolved into one of leadership, particularly in Africa. It is issues like xenophobia, if not eradicated, that could ruin South Africa’s reputation in foreign relations.

It is for the above-mentioned reasons that the Portfolio Committee on Foreign Affairs, an institution that oversees the Executive’s foreign engagements, felt that it should make follow-ups to the recommendations of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerances and look into the treatment of foreign nationals in South Africa.

While compiling relevant information in preparation for the public hearings, the Committee administration together with the Chairperson consulted the South African Human Rights Commission, a chapter 9 institutions charged with the promotion and protection of human rights in South Africa, for a list of NGOs that could make submissions and presentations in the hearings.

The South African Human Rights Commission indicated that it intended to conduct similar public hearings in 2004 and that it would be honoured to join forces with the Portfolio Committee on Foreign Affairs in conducting the public hearings on xenophobia.

The Chief Whip placed a condition on approval of this trip, that the delegation should be limited to six Members. The delegation comprised as follows:

Mr. D J Sithole (ANC) (Chairperson)

Mr. M Ramgobin (ANC)

Ms H M Mpaka (ANC)

Ms N B Gxowa (ANC)

Mr. W J Seremane (DA)

Mr. L K Joubert (IFP)

Over twenty Non Governmental Organizations, Community Based Organizations, Government Departments and individuals, including the United Nations High Commissioner for Refugees made oral presentations. Because of the time factor some of the presenters could not make oral presentations.

While some presentations applauded the government for its efforts towards eradicating the scourge of xenophobia, most of the NGOs, CBOs were anti government in their stance against xenophobia, they felt that government was not doing enough to deal with xenophobic attitudes amongst South Africans.

First in the line of fire was the Department of Home Affairs; most presenters felt that the biggest problems rested with the Department of Home Affairs, because it was the first part of call when the immigrants come into the country. Some of the problems mentioned were as follows:

• Delays in confirming the refugee status of immigrants.

• Xenophobic officials, who do not treat immigrants well.

• Corrupt officials who sell fake documents to desperate immigrants.

• Fake marriage certificates, which ensure that immigrants get a South African citizenship.

• Appalling living conditions at the Lindela detention center.

• Lindela detention center being seen as a detention center for African foreigners.

• The poor quality of food at Lindela.

• Failure of government to implement the Refugee Act and the Immigration Act in a right friendly manner.

• Investigation of complaints by detainees being hampered by the difficulty in obtaining information from the Department of Home Affairs.

• Prolonged detentions, of up to 121 days at Lindela.

• Deaths in detention at Lindela.

• Detention of unaccompanied foreign children at Lindela.

• Overcrowding at Lindela, which can accommodate 4000 people.

The South African Police Services was the second institution that was seen as the second biggest xenophobic institution, some of the allegations against the SAPS were as follows:

• Detaining immigrants while they were waiting for their refugee status to be granted.

• Demanding bribes from immigrants without permits.

• Tearing up immigrants’ permits and declaring them illegal immigrants.

• Non-compliance with the Immigration Act, detaining immigrants for more than the 30 day maximum.

• Forcing detainees to jump off moving trains while being deported.

• Assaulting detainees.

• Raids for illegal immigrants are often conducted in predominantly black residential areas, giving an impression that illegal immigrants are only black.

• Profiling of illegal foreigners for reasons including a darker skin colour, knowledge of local languages, hairstyle and manner of dress.

• Treating foreign hawkers better than local hawkers, because foreign hawkers are prepared to pay bribes.

• Detention of gravely ill immigrants.

• Detentions at the Beit Bridge border, where women and children are detained for up to three days under a tree with no drinking water and sanitation facilities and in summer temperatures get up to 40 degrees Celsius.

Government departments in general are accused of discriminating against refugees in the employment sphere and that companies underpay and exploit immigrants, because of their desperation.

Public schools are alleged to be discriminatory against immigrants’ children.

Public hospitals and clinics are also said to be discriminating against immigrants.

Banks are also said to be discriminating against immigrants.

The presenters maintain that, because of the actions of government and the private sector’s exploitations South African citizens adopt this xenophobic attitude.

Despite this criticism NGOs do concede that the government has pieces of legislation that seek to advance the rights of immigrants i.e. The Immigration Act, the Refugee Act and the Child Care Act, however they feel that implementation of these laws is not done correctly.

Ms N Njobe represented the Department of Foreign Affairs and gave an outline of the engagements of South Africa on the international relations level. She mentioned a number of conventions and declarations, which indicated South Africa’s commitment to eradicating xenophobia, racism and other forms of intolerances. Amongst the conventions and declarations she made reference to were the following:

• The International Covenant on Economic, Social and Cultural Rights, Article 2; and

• The International Cognate on Civil and Political Rights, Article 13.

The two above-mentioned were recognized in the National Action Plan for the Promotion and Protection of Human Rights, which was approved by then President Mandela in 1998. This meant that, South Africa committed itself to ensure that a documented migrant in South Africa would enjoy the same human rights as the nationals of the country.

• The Vienna Declaration and Programme of Action, 1993.

The above-mentioned declaration committed South Africa to the international human rights instruments and gave birth to South Africa’s National Action Plan for the Promotion and Protection of Human Rights.

• The Durban Declaration and Programme of Action.

The above-mentioned declaration stems from the UN World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerances and the Department of Justice, with the involvement of the Department of Foreign Affairs, was charged with implementing the declaration.

On the 27^th October 2004 the Department of Justice gave a briefing on xenophobia to this Committee and in that briefing the Department mentioned that, the implementation was near completion and that a directorate to administer this project was established and what was left was for it to be manned.

During her presentation Ms Njobe highlighted the fact that the South African delegation was tasked by the United Nations General Assembly to lead resolutions against racism, racial discrimination, xenophobia and other related aspects and that this showed South Africa’s commitment to the international world issues and ensuring that it puts an end to xenophobia.

Director Van Graaf, legal Services, and (Gauteng) Provincial Commissioner Naidoo gave this presentation.

Director Van Graaf pointed out that, the SAPS Code of Conduct, the Constitution, the South African Police Service Act and the Criminal Procedure Act all require SAPS and its officials to uphold and protect the fundamental rights of every person in the country.

He also mentioned that, the SAPS had recently presented training courses on diversity and respect for different groupings, including xenophobia and that, 25 000 SAPS officials and civilians employed by SAPS have received that training.

On the issue of crime he said that the SAPS does not keep statistics according to the nationality of offenders as such an approach could contribute to xenophobia.

On corruption he mentioned that the Prevention and Combating of Corrupt Activities Act of 2004 would come in handy and that all officials should receive training on it. He also suggested that the Home Affairs’ Anti-Corruption Unit should be established as soon as possible.

Commissioner Naidoo assured the panel that senior management does not encourage or support xenophobia and that it is dealt with, within the SAPS ranks in the form of lectures, presentations and discussions and that it also dealt with in communities they serve.

On the issue of destruction of documents Commissioner Naidoo said that, the SAPS does not tolerate destruction of documents and that this issue is never brought to the SAPS’ attention. He also cautioned that, some ID documents are held by males, but their numbers are for females, `for example, after the date of birth if the numbers there are below 5000 it means that the person is supposed to be a female’ and that the SAPS could not let people like that free.

This he said counters the allegations that were made that, the police look at people’s hairstyle, dress code or skin colour to determine if the person is legal or illegal. There are verifications that are done, the Commissioner said, by the SAPS and by the Department of Home Affairs.

He also responded to the issue of police officers pushing deported illegal immigrants off moving trains. The Commissioner said that, the illegal immigrants were so desperate not to be deported that some of them go to the extent of jumping off those trains.

Lieutenant-Colonel Gunther gave a brief explanation on how the SANDF conducts its business during border control operations and his presentation went thus:

When the SANDF apprehends illegal immigrants they hand them over to the SAPS within six hours. The SANDF helps the SAPS to inspect the detainees for injuries.

Between the Zimbabwe/South Africa borders there is a fence, which only serves as a deterrent, it is not electrified, but has an alarm.

Between July `03 and September `04, 816 illegal immigrants were arrested and if soldiers ill-treat illegal immigrants or if they are corrupt, SAPS will investigate and the members will be charged in a civil court.

The SANDF has a Code of Conduct and Lieutenant-Colonel Gunther quoted a clause from there, it reads thus: "I will treat all people fairly and respect their rights and dignity at all times, regardless of race, ethnicity, gender, culture, language or sexual orientation" and violation of this will lead to prosecution.

He also mentioned a few protocols on human rights which South Africa have signed and thus indicating how conscious the SANDF is of South Africa’s international obligations with regard to human rights.

The Minister of Home Affairs, Hon. NN Mapisa-Nqakula, graced the public hearings with her appearance and giving the Home Affairs presentation. The Minister brought it to the panel’s attention that; the decision to come and give the presentation herself was prompted by negative media reports that came out of the hearings.

The Minister began by denouncing xenophobia and in her exact words she said, "There is no way that as a South African government and as a nation we can tolerate and justify xenophobia".

The Minister said that, the response of the South African government, in terms of legislation, has been to harmonize the immigration legislation and policy to address the reasons behind attracting foreign investment, boost tourism and more significantly to allow for mutual interaction and coexistence for South Africans and other nations of the world, particularly from the continent.

The Minister also conceded that, more still needs to be done to protect the refugee community in South Africa, including the speeding up of the status determination process and the proper training and coordination of public servants involved in enforcing immigration laws.

The backlog, the Minister said, in determining the status of asylum seekers is not in anyway an indication of a xenophobic and inherent policy of the South African government. However the Minister accepted that, there might be officials within government departments whose attitudes indicate xenophobic tendencies and that this does not mean the government itself has this kind of attitude.

The Minister emphasized the need to discourage people from entering and remaining illegally in the country and also highlighted the fact that, the goal of the Department of Home Affairs is to instill in its staff members and that of the South African Police Service, that foreigners are people too.

Regarding Lindela the Minister said that, she had already instructed that the center be open to scrutiny to allow both its demystification and its accountability to a human rights culture.

The Minister said that, during her visit to Lindela in October 2004 she requested the installation of the fingerprint verification technology to counter the arrest and detention of South Africans at Lindela and that has been done. She regarded Lindela neither as a detention center nor a place for verification of status, but a place from where, definitely, illegal foreigners should be deported.

On the issue of unaccompanied children at Lindela the Minister said that, they had instructed that all unaccompanied children be removed from the Lindela detention center and that the Department of Social Services should take responsibility for them. She also said that, the deportation policy should be changed to ensure that women with children are given priority and do not have to stay at the center for prolonged periods.

About deaths in Lindela the Minister admitted that there have been deaths reported in Lindela however causes of those deaths were from diseases and not torture as it was alleged. However the Minister condemned the actions of the police officers detaining sick people and taking them to Lindela rather than to a hospital.

About the state of food in Lindela the Minister said that, she had lunch at Lindela herself and found the food there to be in a good state and very tasty, contrary to reports that the food in Lindela was not healthy.

The Minister said that, on the allegations of young boys being sodomised she did not know, but what she knew was that, when there were young boys in Lindela they were not kept together with adults.

The Minister highlighted the fact that South Africa’s freedom and integration into the region and the world was comparatively young and that for a society that had been closed for a longtime it was difficult to adapt to the opening up of borders and a manifold of people integrating into its society.

The Minister brought to surface the fact that when she was in exile she and others had to get permits to be in foreign countries and that they were also arrested, if they did not have permits, and threatened with deportation.

On the final note the Minister mentioned that she had placed before the Ministers the protocol on the free movement of people within the SADC, however South Africa has not signed the protocol, but it is still under discussion. There were bilateral negotiations, besides the protocol, the Minister said, with individual countries on the possibilities of waiving visas.

Several conclusions or findings can be drawn from the presentations made at the public hearings and they are as follows:

1. The South African government has committed itself to international instruments on human rights and the eradication of racism, xenophobia and related intolerances. This is supported in the UNHCR presentation which said that, `In 1996 South Africa bound itself to respect the universally accepted principles contained in the 1951 United Nations Convention relating to the status of refugees and the 1969 OAU Convention governing the specific aspects of refugee problems in Africa. In so doing South Africa recognized the specific situation and needs of refugees who are forced to leave their countries to avoid persecution’.
2. The South African government has brought into effect the various international instruments by harmonizing them with national legislation like the Immigration Act, the Refugee Act, and the Child Care Act.
3. The training conferred to officials in the Department of Home Affairs and the SAPS, the people who deal directly with issues of immigrants, indicate that the government is willing to improve the treatment of immigrants
4. The determination of the SAPS and the SANDF to investigate and punish corrupt officials is a sign that, the security forces of South Africa are not allowing their officials do as they please.
5. Indications by the Minister of Home Affairs that the Department was being restructured to deal with challenges that accompanied the opening-up of South African borders also show that the government is willing to accommodate any problem within South African borders.

The attempts by government should not, however, mask the fact that there are xenophobic tendencies amongst some South African citizens and thus some public servants, including police officers. It is against these tendencies that measures should be brainstormed and implemented to try and eradicate.

The delegation felt strongly that the follow-up public hearings on xenophobia should be held in Parliament in 2005.

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Chairperson Date