Franny Rabkin
13 August 2008
Johannesburg — A BID to stop the closure of shelters providing refuge to those displaced by xenophobic violence failed in the Pretoria High Court yesterday, leading the applicants to seek an urgent appeal to the Constitutional Court.
The shelters, providing refuge to about 3000 people, will close on Friday, unless yesterday's judgment is overturned by the Constitutional Court.
Duncan Breen, of the Consortium for Refugees and Migrants in SA (Cormsa), said: "We are very disappointed, particularly given the urgency, and that about 3000 people are still needing to be integrated, many of whom have legitimate fears about their safety and security should they leave the camps."
Cormsa and the other applicants, three refugees from the Democratic Republic of Congo and one asylum seeker from Zimbabwe, applied urgently to the court last week to stop the planned closure of the Rifle Range Road shelter, south of Johannesburg. Yesterday, they asked that their application apply to all shelters in Gauteng.
They said the government had gone back on its earlier promise to reintegrate them into their communities, and was now telling them to fend for themselves. They asked the court to interdict the closure of the shelter until a reintegration plan had been developed and implemented. Not to do so, they said, was a breach of their constitutional rights to freedom and security of the person, dignity, equality and nondiscrimination, and to just administrative action.
But Mike Sawyer, for the government, argued that "although the applicants' case is high in moral content", there was no duty on the government, either in terms of the Disaster Management Act or the Refugees Act, to indefinitely shelter them or to provide a reintegration plan. Such a duty, he said "can only derive from a prior legal right. No such legal right is identified. It is submitted that no such right exists".
Nadine Fourie, who represented the applicants, said the constitution required that the government take positive steps to ensure people's rights were protected, even where those rights were infringed by third parties.
Judge Ephraim Makgoba asked Fourie whether all the people at the shelter were legally in SA , and whether there was not another remedy available such as " for them to return to their countries of origin".
In his affidavit, the first applicant said he had fled the Congo after his family had been killed in a massacre in his village. Fourie said all the applicants in the case were legally in SA, and that SA had a duty, in terms of its international law obligations and the Refugees Act, to welcome refugees and asylum seekers.
But Makgoba said: "I am not persuaded that (the applicants) have a right, which right has been infringed by the government."
Gauteng spokesman Thabo Masebe said the government had "targeted all the areas where there were problems. We explained to them it is wrong to chase away people". He said there had been a positive response from the communities involved.
"We believe we have done enough to create the conditions for all the displaced people to return to their homes in their respective communities." He said the government would go ahead with the closure of all six shelters in Gauteng .
Should leave to appeal be granted by the Constitutional Court, it would need to hear the case and give judgment, at least on the question of interim relief, before the Friday deadline.
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1)I am ok with the refugees. 2)Compassion is not in short supply. 3)I do not know the answer. 4)It would without a doubt be a very bad idea to extend the date of closure of the shelters.