South African Court Affirms Refugees’ Right to Self-Employment

While previously guaranteed the right to seek employment, refugees and asylum-seekers in South Africa now have the right to apply for and renew permits for their own businesses

Betsy L. Fisher

In September the South African Supreme Court of Appeals affirmed the right of refugees to work and to open businesses in South Africa, indicating its willingness to offer protection to asylum-seekers in response to state-sanctioned xenophobia present in the country during the last several years. Previously, in 2012, police in Limpopo coordinated a government crackdown in which officers shut down businesses operating without permits and confiscated property. Police targeted foreigners, particularly Somali and Ethiopian refugees.

In 2013, refugees repeatedly tried to obtain permits to operate their businesses without fear of police reprisal. Refugees were told to apply for permits through their landlords. Police then closed the businesses and confiscated property stating that business permits had to be in refugees’ own names. A lower court decision affirmed the government’s action, saying local governments were not compelled to issue business permits to refugees.

In Somali Association of South Africa, et al., v. Limpopo Department of Economic Development, Environment, and Tourism, Judge Navsa overturned the lower court’s ruling and held that, because refugees might be left destitute without the opportunity to open businesses, refugees have the right to open businesses in South Africa.

In doing so, the Court drew support from Articles 17(1) and (18) of the 1951 Refugee Convention, which clearly favor giving refugees the right to work and self-employment, but falls short of demanding that a State must allow refugees to work. The Court therefore grounded its holding in municipal law. Section 27(f) of South Africa’s Refugees Act of 1988 indicates that refugees are entitled to seek employment. Additionally, Section 10 of South Africa’s Constitution guarantees the right to human dignity.

The Court’s precedent in Watchenuka held that the constitutional right to human dignity required that refugees be given the right to seek employment. In Somali Association, the Court extended this logic to require that refugees be allowed to open new businesses: “[I]f… a refugee or asylum seeker is unable to obtain wage-earning employment and is on the brink of starvation, which brings with it humiliation and degradation, and that person can only sustain him or herself by engaging in trade, such a person ought to be able to rely on the constitutional right to dignity in order to advance a case for the granting of a license to trade…” As a result of these two decisions, refugees and asylum-seekers in South Africa now have the right to apply for and renew business permits and licenses. It is unlawful for the government to close permitted businesses or confiscate property.

But the judge did not stop with legal observations, further noting that “one is left with the uneasy feeling that the stance adopted by the authorities in relation to the licensing of … shops was in order to induce foreign nationals who were destitute to leave our shores.” The Court’s decision should go some length to ensure that “destitute” refugees can live in dignity in South Africa.

Betsy L. Fisher, J.D., University of Michigan Law School and M.A., University of Michigan Center for Middle Eastern and North African Studies, is a former Fellow in Michigan Law’s Program for Refugee and Asylum Law. She is currently an Overseas Legal Fellow with the Iraqi Refugee Assistance Project.

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