Migration & Equality
Equality Review Committee
The ERC is established in terms of section 32 of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). The Committee advises the Minister of Justice about the operation of the Act and other legislation which have an effect on equality. Advocate Mushwana currently serves as Chairperson of this committee. The Committee is currently working on providing inputs to the PEPUDA Amendment Bill.
Annual Equality Report
As an institution supporting democracy, the Commission is obliged to report on the country’s progress made towards the attainment of equality in respect of the national legislative framework. The report makes recommendations to relevant stakeholders following the Commission’s findings. The report is further submitted to the National Assembly for consideration and implementation where applicable.
Hearing on Transformation at Institutions of Higher Learning
The Commission’s national hearing on Transformation at Institutions of Higher Learning was convened pursuant to a request from the Minister of Higher Education and as a result of a formal complaint lodged with the Commission by the Higher Education Transformation Network; following an incident which occurred at the North West University, Potchefstroom Campus in January 2012. The incident involved the death of one of the students at the institution and occurred during the institution’s orientation programme.
Although the NWU incident prompted the hearing, it was evident from media reports of incidents from other institutions of higher learning that such incidents were not isolated or only limited to the NWU, but common at other institutions as well.
Between April 2013 and February 2014, 45% of the equality related complaints received by the Commission were based on allegations of racial discrimination. Although these complaints were not confined to allegations of discrimination at universities, they are a reflection of the wider challenge of racial discrimination in the country.
Section 9 (3) of the Constitution prohibits discrimination against various grounds listed in this section. However, despite this, non-nationals in South Africa continue to face discrimination which has resulted in violence meted against them, their businesses and property. Due the discrimination faced by non-nationals in the country, it is important that the Commission has a focus area dedicated for dealing with migration matters.
2008 Impunity Report
In 2008, South Africa experienced unprecedented levels of violence and discrimination against non-nationals, during which more than 60 people were killed and thousands were displaced. The Consortium for Refugees and Migrants in South Africa (CoRMSA) requested an investigation by the SAHRC, the findings of which were documented in the subsequent Report which was issued and published in 2008. The Commission found numerous challenges and obstacles to access to justice, which impeded the realisation of the human rights of these individuals. The Report also made extensive and wide-ranging recommendations. Not all the recommendations have been implemented; and despite this report’s findings and recommendations, attacks on non-nationals still persist.
On August 28 2014, the Gauteng High Court ruled in favor of the Commission, PASSOP and 39 applicants when it found that the actions of the Department of Home Affairs and the Minister in detaining migrants for over 120 days at Lindela were unlawful and unconstitutional.
The High Court declared that individuals detained there had been inhumanely treated, and that officials had failed to follow fair and legal procedure by detaining individuals for longer than 30 days without the necessary warrant of a magistrate permitting extended detention.
This was an important judgment for the country with regards to the protection of rights of non-nationals. This judgment further mandated the Commission to monitor the detention facility to ensure that the Department complies with the order.
Lindela Monitoring Framework
The Commission has since drafted a Lindela Monitoring Framework document to govern the Commission’s implementation of the court order. In its monitoring, the Commission has collaborated with various civil society organisations who have expertise in the field of migration. However, each organisation will maintain its independence, and the Commission remains the principal monitor of the court order.
2015 Xenophobic attacks
The 2015 xenophobic attacks against non-nationals were an indication that as a country we had not dealt with the root causes of xenophobia. It was further an indication that the Commission’s report is not conclusive and an investigation into the root causes of xenophobia needs to be conducted. Following the attacks against non-nationals which broke out in Isipingo, the Commission conducted an investigation into the utterances made by King Goodwill Zwelithini during his speech at a Moral Regeneration gathering in Pongola, Kwa Zulu Natal. According to the complainants, the King’s utterances amounted to hate speech and were calculated to incite violence against non-nationals.
SAHRC Strategy to Combat Xenophobia
Following the April 2015 xenophobic attacks which broke out in Durban, KwaZulu Natal, the Commission conducted a situational analysis, from which it developed an institutional strategy. The Strategy outlines how the Commission will respond to the matters of migration generally and it aims to develop a coherent, integrated response by the SAHRC to fulfil its constitutional mandate in a timely, reliable and effective manner. It also outlines how the Commission will assist non-nationals who lodge complaints with the Commission in an effective and expeditious manner. The Commission’s various business units are key in the implementation of this strategy – particularly legal and research components of the Commission.
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Mpumalanga Provincial Visit, 20 - 24 June 2016