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Court backs City by-laws regarding refugees

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By Tauhierah Salie

In a highly anticipated ruling, a court has granted the City of Cape Town the permission to enforce its by-laws regarding around 700 refugees and asylum seekers at the Central Methodist Church in Cape Town. Stakeholders in the matter reappeared in Western Cape High Court on Monday, where Judge Daniel Thulare granted the interim order the City has applied for. It comes amid persistent complaints about deteriorating conditions in and around the church at Greenmarket Square, which has negatively impacted surrounding businesses and raised serious health and safety concerns.

“No one has the right to be a law unto themselves. The City is well within its rights to enforce the rule of law,” said Thulare.

The City now has the go-ahead to remove those living around the church as per a street by-law which prohibits anyone from occupying a public area overnight. They are also unable to occupy or erect a structure, make open fires or wash their clothes and tend to personal hygiene in public spaces.

“The court effectively took away the limitations of the application of the City’s by-laws. The rules of the City says you can’t erect a structure on a side-walk, can’t sleep, make a fire or defecate or urinate or otherwise in public space. These are the similar provisions you’ll find throughout the world,” said the head of the City’s Safety and Security Directorate, Alderman JP Smith.

According to the order, the refugees and asylum seekers are also barred from intimidating, threatening, harassing or interfering with City officials ‘in any way’; as the City had previously accused them of doing. They will also not be allowed to damage City property or prevent people from entering or leaving the area.

He noted however, that the City had not applied for an eviction order as the church is private property. This means, that those inside the church have the right to remain there.

One of the refugee’s main plights when their sit in first began outside the United Nations High Commissioner for Refugees (UNHCR) in October 2019, was regarding documentation. But the Department of Home Affairs (DHA) has distanced itself from any wrong doing and noted that due to the number of people it services, long waiting periods and the need for verification are not uncommon.

One of the refugee leader’s Papy Sukami, explained that documentation has always been a problem for refugees and so has xenophobia.

“Last year, two of our daughters were beaten at Salt River High school in October and until now we had no feedback. Xenophobia is not only in the physical attacks but also in the Home affairs department,” claimed Sukami.

“(Our) people are being sent to Musina to collect papers, and have to wait 4-5 months for a one-month paper. They can’t employ you anywhere when you have a paper for one-month, our people can’t even feed their families,” said Sukami.

For nearly four months, the refugees had been demanding to be relocated to a ‘safer country’ after highlighting serious cases of discrimination, sometimes violently so.  Smith, however, said he does not believe there is a xenophobic crisis in the country, especially not in the Mother city.

 “There were no cases of xenophobic violence reported in Cape Town, no case numbers, no police records and affidavits to that effect,” he noted.

The City now has seven days to find a venue where the DHA can process the refugees and asylum seekers. Thulare also ordered that the City will be responsible for transport, as they’d indicated their willingness to accommodate at the previous court date. The City  must further ‘process refugees and asylum seekers who are in distress’.

“The City will take the refugees to a place where the DHA can screen them, check for their citizenship status and presumably, as part of the court saying we must assist those who are vulnerable,  offer reintegration- which is something we are happy to do. We have, twice over the last couple of months, made reintegration services available. In other words offer assistance to those who want to return to the communities they were staying in Cape Town, before this crisis a started.”

Smith reiterated that the court ruling does not ‘compel the City to arrange housing’, as that would be ‘seriously problematic’. He said there are thousands of refugees in and from war-stricken countries that would then be able to claim on the same precedent and that there are hundreds of thousands of South Africans on the housing waiting list. Smith cited refusal by the UNHCR and the South African Human Rights commission in this regard, who had no legal basis from which to act. In the previous court appearance, the refugees had been referred to as ‘protesters’, pointing to the fact that they are a group demanding immediate action in an attempt to by-pass the relevant procedures.

“Every South African, as every person who visits here, is responsible for looking after themselves. The people who ended up on Green Market Square, had accommodation options before they went to Green Market Square and they have had quite some time now to arrange options for themselves again because it has become clear that they were not going to be relocated to another country,” said Smith.

Although the hope is for the order to be carried out peacefully, many are preparing for the eventuality of violence or retaliation.

 “We will enforce these by laws as sensitively as we can and we hope that people will respect the court decision and abide by it.  I am however, after the responses by the irresponsible comments by one of the leaders on TV yesterday, a little bit worried that they will go out of their way to make this as difficult as possible.”

“But the City, along with SAPS and others, deals with difficult court orders every single day, this one has just gotten a bit more media attention than the others. So, we’ll deal with it as sensitively as possible but ultimately the site will need to be cleared,” stated Smith.

The judge also accused the refugees two leaders, Sukami and Jean-Pierre Balousa, of deceiving their followers that they will be granted housing by distorting the words of the court and stakeholders. According to Thulare, the pair -who are proficient in English- achieved this through abusing the language barrier.

Sukami said that the refugees and asylum seekers will not be ‘unlawful’ despite to fully accepting the court ruling.

“We are not unlawful people, we respect the law. We appreciate the previous judge and judge (Thulare’s) previous judgement but this one is completely wrong. We couldn’t expect more from the judge, everything he said was xenophobic.

Sukami added that they are maintaining their call for “temporary accommodation and interviews for resettlement” and have alluded to taking the UNHCR to the Constitutional court.

“We are refugees, We don’t belong to the City of Cape Town or the government of South Africa because the City is (against) their homeless and the government has the highest rate of jobless people. We belong to the UNHCR (and are calling on them) to fulfil its mission to take care of the refugees,” said Sukami.

Sukami threatened to take legal action against the UNHCR.

‘We’re going to charge them (UNHCR) and take them to the constitutional court because it is a big violation for their mandate in South Africa. They are there to take care of the refugees, to ensure peace and safety of refugees…we are not safe,” he exclaimed.

Smith expressed doubts that the court decision will be legally opposed.

 “They certainly don’t intend to adhere to the decision and that may well give rise to a more violent resolution than we’re all hoping for,” he said.

What began as a picket demanding that the UNHCR assist foreign nationals living in Cape Town in October, quickly progressed to full-blown dilemma over by-laws and human rights.

In November, police had effected a court order to have them removed from the steps of the UNHCR where they had staged a sit-in, citing issues including xenophobia and discrimination when access basic needs such as documentation and employment.

At the time, their resistance to moving was met with retaliation by Public Order Police, which in turn created an international spectacle labelling the country as xenophobic.  The doors of the Central Methodist Church opposite the popular Greenmarket Square were then opened as a gesture of kindness. But, the group soon settled in and refused to move, despite ailing living conditions.

Although those surrounding the church will have to move, it remains unclear what those inside the building plan to do, given that they shared a collective goal and were part of the same protest.

The refugees and asylum seekers have until March 17th to object to the granting of a final order.



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