The dangers of Illegal home brewed alcohol

The dangers of Illegal home brewed alcohol

By Fina Diba, data capturer, Johannesburg

I live in Thokoza on the East Rand. It concerns me that our president is trying to keep us safe but the community doesn’t seem to realise that there is a reason for alcohol being banned during the lockdown as people often misbehave when they are drunk. Now that they cannot buy alcohol, many people have started to brew their own illegally. I am worried that this could be very dangerous and will affect their health. A two-litre bottle of this brew costs R20,00 and I have seen many people consuming it


Click here for our complete May 2020 Newsletter

The alcohol ban: was the decision to ban the sale of alcohol administratively fair?

The alcohol ban: was the decision to ban the sale of alcohol administratively fair?

By: Mattew December, Legal Intern – Cape Town

Following the global coronavirus outbreak, President Cyril Ramaphosa announced a nationwide lockdown for two weeks from 26 March 2020. This was done in terms of the Disaster Management Act, and the said lockdown was accompanied by a list of regulations meant to limit the spread of the virus. One of the most controversial regulations was a total ban on the sale of alcohol and cigarettes. This led to a public outcry and frustration which in turn resulted in a few liquor stores in and around Cape Town being looted. The regulations were clearly administrative decisions and as such would have to be in line with the Promotion of Administration of Justice Act (PAJA).

According to PAJA, unless the context indicates otherwise ‘administrative action’ means any decision taken, or any failure to take a decision –

(a) by an organ of state, when-

  1. exercising a power in terms of the Constitution or a provincial constitution; or
  2. exercising a public power or performing a public function in terms of any legislation; or

(b) by a natural or juristic person, other than an organ of state, when exercising a public power or performing a public function in terms of an empowering provision.

This definition has a range of exceptions which the ban does not seem to fall under.

The overriding principle with regard to an administrative decision that materially and adversely affects the public is that an administrator should hold some sort of public inquiry. However, an administrator may deviate from this principle “if it is reasonable and justifiable in the circumstances.” In determining whether deviation from the overriding principle is justifiable and reasonable, the following must be considered: the objects of the empowering provision; the nature and purpose thereof; the need to take the administrative action; the likely effect of the administrative action; the urgency of taking the administrative action or the urgency of the matter; and the need to promote efficient administration and good governance.

This then means that an inquiry must be made into the objects of the Disaster Management Act in order to conclude whether the regulation on the ban of alcohol was fair in terms of PAJA. The preamble of the Act states that it is aimed at providing for “an integrated and co-ordinated disaster management policy that focuses on preventing or reducing the risk of disasters; mitigating the severity of disasters; emergency preparedness; rapid and effective response to disasters and post-disaster recovery; the establishment of national, provincial and municipal disaster management centres; disaster management volunteers; and matters incidental thereto.”

Another important principle in determining whether an administrative decision is substantively and procedurally fair is that an administrator must give reasons for his/her decision. These reasons must also be logical, they must be for a legitimate purpose and be sensible. In this case, the ban on alcohol sales is said to be a measure to enforce social distancing and to minimise travel and human interaction. This surely makes sense with regard to the other regulations and the nature of the pandemic which led to the lockdown.

In conclusion, many of the arguments against the alcohol ban relate to financial, socio-economic and employment factors. However, the decision to ban all alcohol sales seems to be rational and due consideration appears to have been taken. The Gauteng Liquor Board has threatened to take the matter to court. However, the Presidency has asked the Board to hold off on litigation for the matter to be deliberated by the Executive. It will be interesting to see on which grounds the ban on alcohol sales will be challenged and what factors the court will consider in making a final decision on the matter. As such, the doctrine of separation of powers will also be heavily in the spotlight should the matter go the judicial route.


Click here for our complete May 2020 Newsletter

Limitation of Rights and COVID-19

Limitation of Rights and COVID-19

By Nicole Dayanand: Staff attorney, Durban


Our Constitution was drafted carefully and with great deliberation. In general, our Constitution is a sophisticated piece of legislation. It provides for a number of aspects, all of which are important, but the most well-known chapter is the Bill of Rights. The Bill of Rights is the foundation of our Democracy in South Africa, with Chapter 2 of the Constitution of the Republic of South Africa, 1996 (the Constitution) providing for a wide range of rights, which include the following: freedom of religion, belief and opinion, freedom of movement and residence, freedom of trade, occupation and profession.

Section 36 of the Constitution however provides for the limitation of rights. This means that in some instances the limitation of a right can be considered lawful. For a limitation to be lawful in terms of Section 36 of the Constitution, the requirements are:

  • The limitation must apply to all people and not just one person or group;
  • The limitation must be reasonable and justifiable in an open and democratic society;
  • The limitation must be based on human dignity, equality and freedom.

Section 36 of the Constitution further specifically provides that when limiting rights all relevant factors must be taken into account, including:

  • The nature of the right;
  • The importance of the purpose of the limitation;
  • The nature and extent of the limitation;
  • The relation between the limitation and its purpose; and
  • Less restrictive means to achieve the purpose.

On 15 March 2020, the President declared a National State of Disaster and subsequently announced a nationwide lockdown for 21 days starting on 26 March 2020. In implementing the lockdown, regulations were put in place for the duration of the lockdown. These regulations limit some basic rights and freedoms as per Section 27(2) of the National Disaster Act 57 of 2002 (the Act). This section states that the President may make regulations concerning inter alia the regulation of traffic, the regulation of movement of persons and goods, the control and occupancy of premises and the suspension or limitation of the sale of alcoholic beverages.

Some examples of the regulations that were implemented are listed below:

  • For the period of the lockdown every person is confined to his or her residence, unless strictly for the purpose of performing an essential service, obtaining an essential good, collecting a social grant or seeking medical attention;
  • All businesses and other entities shall cease operation during the lockdown, save for any business or entity involved in the manufacturing, supply or provision of an essential service;
  • A maximum of fifty people are allowed at a funeral. Burials or cremations within 24 hours require a permit from the police with a sworn affidavit and supporting letter from a cultural/religious leader;
  • The movement of children between co-parents is only permitted if the parent are in possession of a Court Order, a registered parenting plan and a certified birth certificate of the child;
  • The sale of clothing and essential goods for the care of toddlers up to 36 months is permitted;
  • No person may be evicted from their place of residence for the duration of the lockdown;
  • Grocery stores, wholesale markets, spaza/tuck shops and vegetable sellers providing essential goods may trade with written permission from their municipal authorities.

Section 27(3)(a) of the Act states that these regulations must only be exercised to the extent that it is necessary for the purposes of assisting and protecting the public.

In response to the nationwide lockdown, an NGO called The Hola Bon Renaissance Foundation brought an urgent application to the Constitutional Court to declare the lockdown unconstitutional (CCT 52/20). The Applicant submitted that, by declaring a lockdown, the President is violating the Constitutional rights of South African citizens including the right to freedom of movement, healthcare and food and that this was an abuse of power. The issue faced by the Court was whether the President acted unconstitutionally by declaring a nationwide lockdown due to the COVID-19 pandemic.

The Constitutional Court dismissed the application and refused to award costs to the NGO. This decision by the Constitutional Court was based on the fact that Section 36 of the Constitution clearly states that our rights in the Bill of Rights may be limited under certain circumstances. Section 27 (2) and (3) of the Disaster Management Act further supports the Court’s decision. The President has acted in terms of Section 27(2) by limiting movement and trade and only allowing essential services to carry on business. The lockdown protects the public against the COVID-19 virus and has proven to slow down the increasing rate of infection. At its core our Constitution purports to protect the people of this nation and the President’s decision to declare a nation-wide lockdown was made with that core value in mind.


Click here for our complete May 2020 Newsletter

Police brutality during lockdown

Police brutality during lockdown

Author: Kabelo Komana – Candidate Attorney
* Article supervised by Candice Pillay- Director, Lawtons Africa
Article courtesy of Lawtons Africa

As South Africans remain indoors for an extended lockdown until the end of April 2020, reports of excessive use of force and unlawful assaults have been reported to enforce the lockdown.

A previous article “The State of the Law during Lockdown” set out the powers of enforcement officers during a state of disaster, confirming that enforcement officers are primarily peace officers and that the South African Police Services (SAPS) had powers to investigate and prosecute criminal offences. In investigating and prosecuting these offences, only the SAPS were authorised to use the minimum of force necessary to carry out their duties and where force was necessary, the use of force as a measure of compliance needed to be authorised.

With the onset of the lockdown, however, various reports have emerged on social media and in the news of incidents where enforcement officers allegedly assaulted civilians who were believed to not be complying with the lockdown.

Regulation 11G of the regulations issued in terms of section 27(2) of the National Disaster Management Act 67 of 2002 states that any person who contravenes these regulations will be liable to a fine or imprisonment not exceeding six (6) months. The regulations do not confer or authorise the use of force on members of the public to comply with the national lockdown.

Police brutality is defined as the unlawful abuse of the capacity to use force by a police or peace officer. It includes unlawful detention, unlawful arrest, malicious prosecution and physical assault by enforcement officers on citizens, while they are conducting their functions as enforcement officers.

Read the full article here

The State of the Law during Lockdown

The State of the Law during Lockdown

Updated: Apr 14
Authors: Candice Pillay – Director, Lawtons Africa
Article courtesy of Lawtons Africa

The nationwide lockdown to curb the spread of the coronavirus was announced on 23 March 2020 amid speculation and fear around the deployment of the South African National Defence Force (SANDF), the South African Police Services (SAPS) and metropolitan police services.

President Cyril Ramaphosa’s declaration of a national state of disaster invoked the provisions of the Disaster Management Act (DMA) [1], as amended. The President did not, however, declare a state of emergency as provided for in Section 37 of the Constitution [2], which would have invoked the State of Emergency Act (SOE) [3]. It is important to understand that the powers conferred on enforcement officers during a state of emergency and a state of disaster are entirely different.

During a state of disaster, the powers conferred by the DMA [4] are to (a) assist and protect the public, (b) provide relief to the public, (c) protect property, (d) prevent or combat disruptions, and (e) deal with the destructive and other effects of the disaster. This is the overall mandate of all enforcement officers during a state of disaster.

The Defence Act (DA) [5] allows the President to deploy the SANDF in order to (a) preserve life, health or property in emergency or humanitarian relief operations; (b) ensure the provision of essential services; (c) support any department of state, including support for purposes of socioeconomic upliftment; and (d) effect national border control [6]. During this deployment, a member of the Defence Force is regarded as being a peace officer [7] as defined in section 1 of the Criminal Procedure Act (CPA) [8]. As such, SANDF members have limited powers which are subordinate to the powers conferred on members of the SAPS. In circumstances where the SANDF are involved in crime prevention activities, any persons detained or arrested, or goods seized, must be handed over to the relevant SAPS member.

Read the full article here.



Lawtons Africa is a South African law firm. With roots that grew out of seeds sown in down-town Johannesburg in 1892, our history features various changes and different names. Our team ofapproximately70 lawyers, including directors, consultants, associates and candidate attorneys is highly qualified, market-recognised and skilled. For further information, visit

COVID-19 Lockdown: What does this mean for employees?

COVID-19 Lockdown: What does this mean for employees?

By Seshni Govender – Staff attorney, Durban

As the COVID-19 outbreak spreads through society, the rules and norms in the workplace are changing. With South Africa in a 21-day lockdown for the first time in its history, many people are left with unanswered questions. Employers and employees are concerned about the impact this will have on their employment. Many employers were forced to shut down businesses and employees are forced to stay at home as a result.

During the period of the 21-day lockdown employees can fall into the following groups:
– Essential services employees;
– Employees who can work from home;
– Employees who cannot work from home or go in to work.

Essential services employees have been defined in terms of the Disaster Management Act, 57 of 2002: Amended Regulations, and not the Labour Relations Act, 66 of 1995. This group of employees is obligated to go to work despite the lockdown regulations that have been imposed by the President. These employees will be paid their salaries and will have to carry out their daily tasks as stipulated in their employment contracts. Should an employee refuse to work, or not go to work, then the principle of “no work no pay” will come into effect and the employee may face a disciplinary hearing.

In terms of the Occupational Health and Safety Act, 85 of 1993 employers must ensure that the working environment is safe for the employee. In this instance an employer must have gloves, masks, hand sanitisers and other protective gear available to employees who are required to work during this period. Employers must also ensure that social distancing is practised during working hours. Should employers not adhere to the aforementioned, then employees may refuse to work due to unsafe working conditions.

Many employees fall under the second category, which are employees who can work from home. These employees are entitled to be paid as long as they can carry out their duties. The employer may put in place specific deliverables to ensure that the employee is working at home i.e. timesheets, weekly calls, emails, progress reports, etc. Should an employee fail to carry out the daily tasks set by the employer while working from home, the employer can institute disciplinary action against the employee as set out in the employee’s employment contract.

However, the question that arises when it comes to the third category of employees, is what will happen to them since they are unable to work? When we look at the business imperatives of a company, some employees’ jobs are linked to the business premises, such as cleaners. These employees are at risk of being arrested should they go to work and break the lockdown rules and regulations. Employers are therefore left with the daunting task of deciding what they should do with their employees during this crisis.

The options that are open to them are the following:
– Pay the employees in full;
– Pay their employees half of their salary;
– Force their employees to take annual leave; or
– Offer their employees a loan, which can be recovered at a later stage.

It has come to light that many employers are favouring the third option, which is to force employees to take annual leave. This has not been taken well by Government. Labour Minister T. W. Nxesi reiterated in a media briefing in Pretoria that the Government has made funds available to businesses to mitigate some of the losses experienced due to the shutdown. Employees will be entitled to benefits under the Unemployment Insurance Fund and the COVID-19 Benefit Fund that the Unemployment Insurance Fund has established as an instrument to mitigate the effects of the layoff of employees during the lockdown. Therefore, the Labour Minister has stated clearly that no employer should force his or her employees to take annual leave or leave without pay during the period of the lockdown.

This pandemic has created many hurdles and it will be interesting to observe how employers react to the challenges they are presented with and the impact this will have on the workplace. COVID-19 will have a lasting impact on the work environment, as it has forced us to explore alternative ways of working that were previously thought to be closed to us. One thing is for certain: at the end of this we can expect to see a very changed South African employment landscape.


Click here for our complete April 2020 Newsletter

South Africa’s National Lockdown and Civil Liberties

South Africa’s National Lockdown and Civil Liberties

By Shadreck Masike – Intern, Cape Town

The world has not faced a global crisis to the proportions being posed by the COVID-19 pandemic since World War II. Since its outbreak in late 2019, the pandemic has ravaged societies starting in Wuhan, China, spreading to the rest of Asia and the Middle East, Europe, the Americas and now Africa; infecting over a million people globally with a death toll of around 50 000 and rising, as at the time of writing. Its rapid spread necessitated the adoption of swift measures to curtail and contain its spread which has seen many countries embarking on national lockdowns where all non-essential services have been suspended and people ordered to stay at home. With confirmed corona virus cases standing at 1 380 and the total number of deaths at 5 as at 2 April 2020, South Africa has not been spared, with the President declaring a State of National Disaster and a concomitant 21 day National Lockdown which commenced at midnight on 27 March 2020 and was since extended for a further two weeks. To ensure compliance with the National Lockdown, all the country’s security forces were deployed to the streets including the South African National Defence Force (SANDF).
Since the lockdown there has been wild speculation as to its effect on the Bill of Rights. Does the lockdown suspend the operation of the Bill of Rights, either partially or in its entirety? Such questions and fears were compounded further by reports of brutality and harassment against members of the public by security forces, in particular members of the SANDF. It has been reported, with evidence from video footage, that members of the army are beating people seen loitering in the streets, especially in township communities. Video footage has surfaced of people being beaten, forced to roll on the ground in military fashion and doing squats, prompting the Defence Minister to issue a statement clarifying that such conduct by soldiers is unlawful and not in conformity with their mandate in respect of enforcing the lockdown regulations. The question that then remains is what effect the lockdown has on the civil liberties of our people?
The lockdown was effected pursuant to Regulations published by Government Gazette Notice 318 of 18 March 2020, as subsequently amended by Government Notice R. 398 of 25 March 2020. These Regulations were made under Section 27(2) of the National Disaster Management Act of 2002. Essentially, they are meant to restrict the movement of people locally, between cities and metros, amongst other things. The role of security forces then is to ensure that the restrictions on movement and gatherings are adhered to. Although the cited Regulations limit the exercise of human rights as espoused in the Bill of Rights, such limitation is permitted in terms of Section 36 of the Constitution, which provides that the exercise of rights may be limited by law of general application provided that the limitation is necessary, justified and reasonable in a democratic society. However, such limitation must only be to the extent that it is necessary to preserve, amongst other things, public health, as in this case. This entails that even the rights that are directly limited by the Lockdown Regulations are not suspended in their entirety, but only limited to the extent that such limitation is necessary for the preservation of public health, and in this case, to contain the spread of Covid-19. To that end, the Bill of Rights is not suspended, nor are the security forces now enjoying impunity to commit human rights violations in the name of the lockdown. They are there to enforce law and order.

Provision is further made for criminal liability against anyone found guilty of contravening the regulations, with the offender being liable to pay a fine or serve imprisonment not exceeding six months, or both. This means that even where an individual contravenes the provisions of the regulations and is arrested, the rights of arrested, accused & detained persons enshrined in the Constitution applies to them. The regulations do not equip the army with powers to impose punishment on alleged offenders in the form of beatings, squats or military rolls.

To avoid doubt, the Bill of Rights is still very much in operation, though some rights have been limited, and the abuse of the citizenry by military personnel remains fundamentally unlawful. It constitutes unjustified limitation of the Bill of Rights in a democratic society as contemplated by the South African Constitution.


Click here for our complete April 2020 Newsletter

COVID-19 Infection and the workforce

By Siyabonga Zondi – Intern, Durban Office

In the most unequal society in the world, which is currently going through a recession, perennial power cuts and one of the highest unemployment rates in the world, a deadly communicable virus outbreak is the last thing South Africa needed. Apart from the lives that may be lost, a major area of concern is an economy, which was already on a declining trajectory prior to the outbreak hitting South Africa’s shores, being made more vulnerable than ever and bordering on collapse. The people who will bear the brunt of this are the poor working class, who may be exposed to mass dismissals, unfair labour practices and a flouting of the basic conditions of employment.

This then begs the question: what role does the Labour Relations Act 66 of 1995 (LRA) and the Basic Conditions of Employment Act 75 of 1997 (BCEA) play in the wake of the COVID-19 outbreak? Do employees still enjoy the protection afforded by these two pieces of labour legislation, even in a time where employers may not be in a position where they are able to meet their obligations towards their employees?

Among the most pressing concerns by most employees is whether they can be dismissed due to contracting COVID-19. In terms Schedule 8: Code of Good Practice Dismissals, an employer is obligated to investigate the extent of an illness if an employee is temporarily unable to work. If the illness may result in a prolonged absence from work, alternatives to a dismissal must first be considered. The factors that should be taken into account when considering alternatives to dismissal include the seriousness of the illness, the period of absence, the nature of the employee’s job and whether a temporary replacement may be secured. Throughout the process the employee is to be afforded an opportunity to make recommendations. If all processes have been followed and no suitable alternative to dismissal is found, the employer would then have an option to dismiss the employee.

There are also situations where businesses may find themselves having to dismiss much of their workforce due to operational requirements. Dismissals based on operational requirements are carried out in terms of section 189 of the LRA. These requirements can be defined as technological, structural, economic or similar needs of the employer. The recommended recovery/isolation period for a person who is deemed to have COVID-19 is 14 days, which in itself would not justify a need to retrench the employee. This position would significantly change, however, where an employer would have several employees being infected and requiring time away for isolation or recovery. In this situation a retrenchment based on operational requirements would be necessitated.

The Occupational Health and Safety Act 85 of 1993 (OHSA) obligates an employer to maintain as far as reasonably practicable a safe working environment that is without risk to the safety and health of its employees. This, however, does not mean that an employee may refuse to come to work in fear of contracting COVID-19. Employees who stay away from work may be required to furnish reasons for their absence, and failure to provide them may result in the employee facing disciplinary action.

A point of much debate and uncertainty for many employees is the “no work, no pay” principle. To pay employees for work done is one of the obligations of the employer, but what happens if the employees show up at work but are unable to work for some reason or another because of COVID-19? In such a situation the employer is obliged to pay the employees, as they have made themselves available and shown up at work. The fact that something beyond their control has inhibited them from performing their duties should not result in the employees not being given their due remuneration. The employer may, however, have recourse to the temporary layoff of employees where normal business operations may not continue.

They say every generation has a war that it must fight. In the past it was the attainment of freedom and equality, both in general and in the workplace. Our labour legislation is now very liberal in its nature and promotes equality. The battle we now face is one of decreasing unemployment rates, and increasing the quality of life of all employees, in the wake of a weakened economy and a dangerous communicable virus.


Click here for our complete April 2020 Newsletter

Birth certificates for undocumented minors

Birth certificates for undocumented minors

Lesley Blake studied at
Wits University and was
admitted as an attorney
in 1995. Her practice
consists of service to the
SMME market – general
legal advice, collections,
drafting agreements and
general litigation. The
practice is also slanted
towards Family Law
including access and
maintenance disputes.

Lesley Blake studied at Wits University and was admitted as an attorney in 1995. Her practice consists of service to the SMME market – general legal advice, collections, drafting agreements and general litigation. The practice is also slanted towards Family Law including access and maintenance disputes.

The Department of Home Affairs appears to have a policy (unrelated to any law that I can find) that they will only issue a Birth Certificate in the following circumstances:

  1. To a woman who is the mother of the child, personally appearing to bring that application;
  2. Where there is documentary evidence of the birth of the child in a South African hospital or medical facility;
  3. Where she has registered the birth within seven days.

In any circumstances apart from the above, all of us as role-players in the social welfare and legal environments have had endless difficulty in getting a birth certificate issued.

Where there is a biological unmarried father of the child, Home Affairs requires that he have a genetic test to prove his fatherhood. If so established, there are some instances where they issue the birth certificate to him, particularly when Home Affairs already have him as the father on their system or where the Children’s Court forces them to do so. Of course, the law is that both parents have parenting rights and there is no real reason in law why a birth certificate could not simply be given to a father. Nevertheless, it is likely one would need a court order to force them to do so.

In cases where the other aspect is not satisfied – for example when the mother is missing or the mother does not have documentary evidence of the birth, or where the birth was not timeously registered, there would be room to bring an application to force Home Affairs to issue a birth certificate. In each such application one would need to establish to the satisfaction of the Court that:

  1. The child is a South African – whether by birth or descent. Thus, place facts before the Court on affidavit about who the parents are and the place of birth of the child;
  2. There is good cause why the mother cannot appear to apply for the certificate;
  3. The person/s applying for the birth certificate have parental rights and responsibilities or ought to have them or are entitled to the issuing of the certificate. So even where the applicant is the aunt or a children’s home or a social worker, that person should be entitled to get the birth certificate and have a purpose for it.

As a final point, the application should be brought by way of a Notice of Motion and a Founding
Affidavit. Remember that it is very easy to lose an application by asking for more urgency than the
circumstances justify. Take your time and win the first time.


Click here for our complete April 2020 Newsletter

The Green Market Square furore

The Green Market Square furore

By: Mattew December – Intern, Cape Town

On 8 October 2019, a group of refugees commenced a sit-in protest at the Cape Town offices of the United Nations High Commission for Refugees (UNHCR) following a wave of xenophobic attacks on foreign nationals across the country. The group, which include about 624 men, women and children and 65 undocumented refugees, alleges that they are being persecuted in South Africa by a community insensitive to their plight as refugees and therefore are living in fear for their lives on a daily basis. Their demand to the UNHCR was to be relocated to a third country, which is not South Africa or their country of origin since, in both, they feared persecution. The UNHCR could not guarantee such a demand, citing international law on refugees, as well as their operational guidelines. Since no agreement could be reached concerning relocation, the City Council proceeded to forcibly evict them from the UNHCR premises, and an ugly scene of violence erupted, resulting in the Reverend Allan Storey of the Central Methodist Church offering them temporary shelter until their plight was addressed.

Until recently, the refugees have been staying in the Central Methodist Church right in the heart of the Cape Town CBD. The conditions of their stay there became a concern, with reports of violence between factions of refugees, poor sanitary conditions, health scares and fire risks owing to overcrowding.

The conditions were clearly degrading to say the least. This prompted the City of Cape Town to seek an order from the Western Cape High Court to enforce Municipal Regulations with regard to the occupation of the church by the protesters. Court hearings were also scenes of violence between the police and the protesters. The court ruled that the City has to ensure that the protesters’ human rights are protected before any penalties for infringing by-laws could be enforced. At the end of it all, it was a battle between the City to enforce by-laws by evicting the refugees, and the refugees resisting eviction until they were moved to another country that is not South Africa or their country of origin.

To many ordinary people who witnessed the debacle unfold, the refugees were the victims and the South African government, its agencies and the UNHCR were being insensitive to their plight. In the eyes of an innocent bystander, they were caught between a rock and a hard place; either to return to their communities in Cape Town and face persecution, or remain in the CBD facing running battles with the police. Some wondered why the UNHCR is not relocating them to a third country, which appeared to be the only logical thing to do to settle this crisis. But what does the law say?

Refugees are governed by International Law and the laws of the receiving country – in this case, South Africa. Generally, when a country receives a refugee, it is not at liberty in law to return that person to a country that they are fleeing from, by operation of the principle of non-refoulement. In the event that such a person returns to the country from which they fled, their refugee status is automatically revoked. Where a refugee is facing persecution in the country they fled to, two options are available; either they are returned to their country of origin or relocated to a third country. However, relocating them to a third country requires (a) individual determination of each case to determine the circumstances of the persecution and whether they warrant relocation, and (b) the availability of a third country that is willing to receive the refugees. In the present case, neither requirement has been met. The refugees are not willing to have each case be decided on its own merit and secondly, there is no country which has shown willingness to welcome the refugees. The refugees too are refusing to go back to their country of origin. Under such circumstances, there is nothing that the South African government or the UNHCR can do about the situation. A solution can only be found through the cooperation of the refugees, which has not been forthcoming owing to factional fights, and the availability of a third country willing to receive the refugees and settle them within their territory.


Click here for our complete April 2020 Newsletter