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[2006] ZACC 23
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Union of Refugee Women and Others v Director, Private Security Industry Regulatory Authority and Others (CCT 39/06) [2006] ZACC 23; 2007 (4) BCLR 339 (CC) ; (2007) 28 ILJ 537 (CC); 2007 (4) SA 395 (CC) (12 December 2006)

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KONDILE AJ
CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 39/06
THE UNION
OF REFUGEE WOMEN First Applicant
KINUGUBA
MAGAMBO Second Applicant
AIMABLE DO
GRIO BANDANDAZA Third Applicant
RICHARD
RUGONDA Fourth Applicant
SOLANGE
MUKAMANA Fifth Applicant
JEAN-MARIE
BIPAMBA MIKADO Sixth Applicant
JOSEPH
MUBAMBEK Seventh Applicant
BOSUMBE
ELANGA Eighth Applicant
POMPIDOU
WEBBER Ninth Applicant
PELAGIE
NYIRANZARORA Tenth Applicant
TSHALA
CLAUDINE MBAYA Eleventh Applicant
CHITERA
MATEMBELA Twelfth Applicant
DEUDONNE
MASAKA NIZIGIYIMANA Thirteenth Applicant
versus
THE
DIRECTOR: THE PRIVATE SECURITY
INDUSTRY
REGULATORY AUTHORITY First Respondent
THE
CHAIRPERSON: THE PRIVATE SECURITY
INDUSTRY
APPEAL COMMITTEE Second Respondent
THE
CHAIRPERSON: THE COUNCIL FOR THE
PRIVATE
SECURITY INDUSTRY REGULATORY
AUTHORITY Third
Respondent
THE
MINISTER OF SAFETY AND SECURITY Fourth Respondent
Heard
on : 29 August 2006
Decided
on : 12 December 2006
JUDGMENT
KONDILE AJ:
Introduction
This
application concerns the rights of refugees to work in the private
security industry in South Africa. This industry is regulated
by
the Private Security Industry Regulation Act 56 of 2001 (“Security
Act”). The matter reaches this Court in the form of
an
application for leave to appeal against the judgment of Bosielo J
in the Pretoria High Court.
The
first applicant is the Union of Refugee Women, a voluntary
association acting in the interests of its members and in the

interests of the class of people to whom the applicants belong.
The second to thirteenth applicants are refugees as defined in
the
Refugees Act 130 of 1998 (“Refugees Act”).
1
The
first respondent is the Director of the Private Security Industry
Regulatory Authority (“Authority”) established in terms
of
section 2(1) of the Security Act. The second respondent is the
Chairperson of the Private Security Industry Appeal Committee
(“Appeal Committee”) provided for in section 30 of the Security
Act.
2
The third respondent is the Chairperson of the Council for the
Private Security Industry Regulatory Authority (“Council”).

The Council was established in terms of section 5 of the Security
Act. In terms of this section the Authority is governed and
controlled by the Council.
3
The fourth respondent is the Minister of Safety and Security
(“Minister”). In terms of section 11 of the Security Act,
the
Minister exercises overall supervision of the first respondent.
4
The
legislative framework
Section
20 of the Security Act says that no person may render a security
service for reward unless he/she is registered as a security
service provider in terms of the Act. Section 23(1) of the
Security Act provides as follows:
“
Any natural person applying
for registration in terms of section 21(1), may be registered as a
security service provider if the
applicant is a fit and proper
person to render a security service, and─
is a citizen of or has
permanent resident status in South Africa;
is at least 18 years of age;
has complied with the
relevant training requirements prescribed for registration as a
security service provider;
was not found guilty of an
offence specified in the Schedule
5
within a period of 10 years immediately before the submission of
the application to the Authority;
was not found guilty of
improper conduct in terms of this Act within a period of five
years immediately before the submission
of the application to the
Authority;
submits a prescribed
clearance certificate, together with such other information as the
Authority may reasonably require, if
the applicant is a former
member of any official military, security, police or intelligence
force or service in South Africa
or elsewhere;
is mentally sound;
is not currently employed in
the Public Service in circumstances where such registration may
conflict with a legislative provision
applicable to the applicant;
has paid the relevant
application fee; and
is not a person referred to
in subsection (5).”
6
(footnote added)
In
terms of section 23(2) of the Security Act:
“
A security business applying
for registration as a security service provider in terms of section
21(1), may be so registered only
if─
every natural person referred
to in section 20(2) complies with the requirements of subsection
(1) and is not an unrehabilitated
insolvent; and
such security business meets
the prescribed requirements in respect of the infrastructure and
capacity necessary to render a
security service.”
Section
23(6) of the Security Act, however, provides:
“
Despite the provisions of
subsections (1) and (2), the Authority may on good cause shown and
on grounds which are not in conflict
with the purpose of this Act
and the objects of the Authority, register any applicant as a
security service provider.”
Relevant
facts
All
the applicants except the first applicant applied to the Authority,
in terms of section 21 of the Security Act,
7
to be registered as security service providers.
Second
to sixth applicants
The
second to sixth applicants were initially registered by the
Authority as security service providers. On 20 December 2002,
however, they all received notice of intention to withdraw their
registration in terms of section 26(4)(c) of the Security Act
8
on the basis that they were granted registration in error inasmuch
as they are neither citizens nor permanent residents of South
Africa.
The
notice also contained an invitation to them to provide the
Authority with all relevant information as to why, despite the
requirements of section 23(1)(a) not having been met, the Authority
should not withdraw their registration. The written
representations
had to be made within 21 days.
The
second and fifth applicants’ attorneys sent written submissions
to the Authority, in essence stating that a person who is
neither a
citizen nor a permanent resident of South Africa may be registered
as a security service provider under the Security
Act in the light
of the wording of section 23(6) of the Security Act.
In
March 2003 the Authority replied to the second and fifth applicants
and advised that their written representations had been
unsuccessful. At the same time the Authority formally withdrew the
registration of the second to sixth applicants as security
service
providers.
In
June/July 2003 the second to fourth applicants appealed to the
Appeal Committee against the decisions of the Authority on the
grounds that the Authority, in finding section 23(1) to be the sole
reason not to maintain registration, committed an error of
law and
its decisions amount to irrational and unlawful administrative
action. It was also contended that the decisions take
no account
of the provisions of section 23(6) of the Security Act or the
Constitution and in so doing unfairly and unjustifiably
violate the
applicants’ rights to equality, non-discrimination and dignity.
Further that the decisions are inconsistent with
the Constitution
and accordingly invalid. The point was also taken that the
requirements for registration set by section 23(1)(a)
when read
together with section 23(6) allow the Authority to maintain the
registration of these applicants as security service
providers
despite their being neither citizens nor permanent residents. The
fifth and sixth applicants did not appeal.
On
20 September 2003 the second to fourth applicants were advised that
their appeals had been dismissed. The reasons given by
the Appeal
Committee were that it was common cause that the Authority had made
an error in registering these applicants. They
also found that
these applicants, notwithstanding the fact that they had been given
an opportunity to do so, had failed to show
good cause, and on
grounds which are not in conflict with the purpose of the Security
Act and the objects of the Authority, why
they should be
registered. They therefore had failed to justify the application
of section 23(6).
Seventh
to thirteenth applicants
The
seventh to thirteenth applicants all applied to be registered as
security service providers. The Authority advised that they
had
been rejected on the basis that they were neither citizens nor
permanent residents of South Africa.
The
applications of the twelfth and thirteenth applicants were each
supported by an affidavit which can be summarised as follows:
the
applicants are recognised refugees in terms of
section 24
of the
Refugees Act. They
are aware of the requirements of sections
23(1)(a) and 23(6) of the Security Act and Regulations 2(2)(b),
2(2)(c) and 2(6) made
under the Security Act. They are unable to
provide police or official criminal record clearance certificates
from the Democratic
Republic of Congo and Burundi Embassies in
South Africa respectively, as the officials at those embassies
would not be able to
render unbiased information. The officials
are not trustworthy. Neither of the applicants had been found
guilty of any offence
specified in the schedule nor had they been
found guilty of improper conduct, nor had they been members of any
national military,
security, police or intelligence force or
service, nor had they been employees of any of the national
security services.
The
seventh to eleventh applicants lodged appeals to the Appeal
Committee on grounds similar to those advanced by the second to
fourth applicants. These appeals were dismissed for reasons
similar to those furnished to the second to fourth applicants.
The
twelfth and thirteenth applicants did not appeal the decision of
the Authority.
Decision
of the High Court
The
applicants approached the High Court and sought to review and set
aside the decisions of the Authority and the Appeal Committee.
In
the alternative they sought an order declaring section 23(1)(a) of
the Security Act to be inconsistent with the Constitution
and
invalid. Their application was dismissed with costs.
The
High Court held that section 23(1)(a) does indeed grant South
African citizens and permanent residents preferential treatment,
but it emphasised that this section cannot be read in isolation.
It thus reached the conclusion that section 23(1)(a) was

sufficiently tempered by section 23(6) to render it
constitutionally compliant. Reflecting on the rationale for
section 23(1)(a),
the High Court held that:
“
It is understandable, in my
view, that due to the high level of trust required by . . . private
security officers, there must be
some strict criteria as to who can
qualify for such positions so as to exclude undesirable persons.”
9
Although
it expressed sympathy for the plight of refugees, particularly
given their vulnerable position in society, the High Court
was of
the view that the safety and security of the public and the need
for effective control of the private security industry,
justified
the limitations on the rights of refugees imposed by section
23(1)(a), particularly as they were free to seek gainful
employment
elsewhere.
Leave
to appeal to this Court
The
applicants now seek leave to appeal directly to this Court, in
terms of Rule 19 of the Constitutional Court Rules,
10
against the judgment and order of the High Court. According to the
applicants, the application is concerned with whether the
Authority
is entitled to refuse to register the applicants as security
service providers or to withdraw certificates of registration
erroneously issued, and whether the Appeal Committee is entitled to
dismiss their appeals against the Authority’s decisions,
in
either event, on the sole basis that the applicants are neither
citizens nor permanent residents of South Africa. The application
is apparently also concerned with whether section 23(1)(a) is
inconsistent with section 9(3) and section 9(4) of the
Constitution.
Leave
to appeal directly to this Court will be granted if it is in the
interests of justice to do so.
11
Each case is considered on its own merits.
12
The factors relevant to a decision whether
to grant an application for direct appeal have been listed as
including whether there
are only constitutional issues involved,
the importance of the constitutional issues, the saving in time and
costs, the urgency,
if any, in having a final determination of the
matters in issue and the prospects of success. These must be
balanced against
the disadvantages to the management of the Court’s
roll and to the ultimate decision of the case if the Supreme Court
of Appeal
(“SCA”) is bypassed.
13
The
applicants submit that leave to appeal directly to this Court is
appropriate in the light of the fact that they are all indigent
members of society, lacking the necessary financial means required
to fund any, let alone lengthy, legal proceedings. It appears
that
Lawyers for Human Rights have rendered all services to the
applicants without charge and that counsel have rendered their
services at reduced rates, and in some instances without
remuneration.
The
application invokes the equality clause and requires consideration
of constitutional issues as envisaged by section 167(3)(b)
of the
Constitution. Moreover, this is an issue of public importance
involving a vital regulatory authority as well as reportedly
some
thousands of refugees.
In
my view, there are important constitutional issues at stake and the
issues involved are all of a constitutional nature. The
Court is
not called upon to deal with any ancillary, non-constitutional
matters. In addition, direct appeal has the advantage
of avoiding
delays and reducing costs, which was one of the purposes for which
section 167(6)(b) of the Constitution was enacted.
14
The question of the saving of costs is one which assumes
considerable weight herein as the litigants involved are
particularly
vulnerable members of society with limited resources
available to them. The applicants’ argument in relation to the
saving
of costs is thus particularly persuasive in the
circumstances of this case. Furthermore, the dispute between the
parties has
been ongoing since 2002. It is therefore in the
interests of justice that leave to appeal directly to this Court be
granted.
The
applicants’ submissions in this Court
The
structure of the oral argument presented on behalf of the
applicants differed markedly from that of the written argument

lodged on their behalf. It appears from their written argument
that the applicants contend that the decisions of the Authority
and
the Appeal Committee were materially influenced by an error of law
and/or were made in an irregular manner, alternatively,
that
section 23(1)(a) of the Security Act under which the decisions were
made, is inconsistent with the Constitution and therefore
invalid.
During
oral argument however, counsel for the applicants clarified that
their primary challenge is to the constitutionality of
section
23(1)(a). Should the Court uphold this section, the applicants
seek administrative review of the decisions of the Authority
and
the Appeal Committee.
This
seems the preferable way to approach the issues. If this Court
were to find that section 23(1)(a) of the Security Act is
indeed
invalid, then reviewing the decisions of the Authority and the
Appeal Committee, which were made in terms of that very
section,
would be unnecessary. I thus turn to consider the
constitutionality of section 23(1)(a) but first a word or two about
refugees.
Vulnerability
of refugees
Refugees
are unquestionably a vulnerable group in our society and their
plight calls for compassion. As pointed out by the applicants,
the
fact that persons such as the applicants are refugees is normally
due to events over which they have no control. They have
been
forced to flee their homes as a result of persecution, human rights
violations and conflict. Very often they, or those
close to them,
have been victims of violence on the basis of very personal
attributes such as ethnicity or religion. Added to
these
experiences is the further trauma associated with displacement to a
foreign country.
The
condition of being a refugee has thus been described as implying “a
special vulnerability, since refugees are by definition
persons in
flight from the threat of serious human rights abuse.”
15
This is reflected in South African legislation governing the
status of refugees. In terms of
section 3
of the
Refugees Act,
which
draws on the definition of “refugee” in the 1951 United
Nations Convention Relating to the Status of Refugees (“UN
Convention”),
a person qualifies as a refugee if:
“
(a) owing to a well-founded
fear of being persecuted by reason of his or her race, tribe,
religion, nationality, political opinion
or membership of a
particular social group, is outside the country of his or her
nationality and is unable or unwilling to avail
himself or herself
of the protection of that country, or, not having a nationality and
being outside the country of his or her
former habitual residence is
unable or, owing to such fear, unwilling to return to it; or
owing to external aggression,
occupation, foreign domination or events seriously disturbing or
disrupting public order in either
a part or the whole of his or her
country of origin or nationality, is compelled to leave his or her
place of habitual residence
in order to seek refuge elsewhere; or
is a dependant of a person
contemplated in paragraph (a) or (b).”
In
South Africa, the reception afforded to refugees has particular
significance in the light of our history. It is worth mentioning
that Hathaway lists apartheid as one of the ‘causes of flight’
16
which have resulted in the large numbers of refugees in Africa.
17
During the liberation struggle many of those who now find
themselves among our country’s leaders were refugees themselves,
forced to seek protection from neighbouring states and abroad.
The
applicants have referred this Court to statements in judgments of
this Court and other courts relevant to the vulnerable position
of
foreigners in our society. I share the views expressed therein and
empathise with vulnerable groups that are among us. The
Security
Act, however, concerns an industry which by its nature involves
serious risks. It is not a negation of our international
duties
towards refugees. It affirms these obligations but reserves to the
host country the right to set appropriate qualifications.
At the
same time, care must be taken to ensure that qualification is
imposed by the Act in as flexible a manner as possible
in order to
be consistent with our international obligations.
The
equality challenge
The
applicants contend that section 23(1)(a) of the Security Act is
unconstitutional and consequently invalid, since it discriminates
against them on the basis of their refugee status and consequently
infringes their right to equality.
The
applicants accordingly seek an order declaring, among other things:
that
the omission of the words “or is a recognised refugee” after
the words “is a citizen or has permanent resident status
in
South Africa” in section 23(1)(a) of the Security Act to be
inconsistent with the Constitution and invalid; and
that
section 23(1)(a) of the Security Act is to be read as though the
words “or is a recognised refugee” appear after the
words “is
a citizen or has permanent resident status in South Africa”.
The
test to be used when assessing whether a particular law or act
complies with section 9 of the Constitution was laid down in
Harksen v Lane
:
18
Does
the provision differentiate between people or categories of people?
If so, does the differentiation bear a rational connection
to a
legitimate government purpose? If it does not then there is a
violation of s 9(1). Even if it does bear a rational connection,
it might nevertheless amount to discrimination.
Does
the differentiation amount to unfair discrimination? This requires
a two-stage analysis:
Firstly, does the differentiation amount to ‘discrimination’?
If it is on a specified ground, then discrimination
will have
been established. If it is not on a specified ground, then
whether or not there is discrimination will depend
upon
whether, objectively, the ground is based on attributes and
characteristics which have the potential to impair
the
fundamental human dignity of persons as human beings or to
affect them adversely in a comparably serious manner.
If the differentiation amounts to ‘discrimination’, does
it amount to ‘unfair discrimination’? If it has been
found to have been on a specified ground, then unfairness will
be presumed. If on an unspecified ground, unfairness
will
have to be established by the complainant. The test of
unfairness focuses primarily on the impact of the

discrimination on the complainant and others in his or her
situation.
If, at the end of this stage of the enquiry, the differentiation is
found not to be unfair, then there will be no violation of
section
9(3) or section 9(4).
If
the discrimination is found to be unfair then a determination will
have to be made as to whether the provision can be justified
under
the limitations clause.
The
first leg of the equality analysis thus involves determining
whether the provision in question differentiates between categories
of people. Section 23(1)(a) of the Security Act differentiates
between citizens and permanent residents on the one hand, and
all
other foreigners, including refugees, on the other. This
differentiation is clear; citizens and permanent residents may
apply for registration as security service providers, all other
foreigners are barred from doing so unless they come within the
terms of section 23(6) of the Security Act.
Is
there a rational connection between section 23(1)(a) and its
purpose?
With
regard to the level of scrutiny required when determining whether a
rational connection between a legislative provision and
its
intended purpose exists, this Court, i
n
Prinsloo v Van der Linde,
19
explained:
“
In regard to mere
differentiation the constitutional State is expected to act in a
rational manner. It should not regulate in an
arbitrary manner or
manifest ‘naked preferences’ that serve no legitimate
governmental purpose, for that would be inconsistent
with the rule
of law and the fundamental premises of the constitutional State.
The purpose of this aspect of equality is, therefore,
to ensure that
the State is bound to function in a rational manner. This has been
said to promote the need for governmental action
to relate to a
defensible vision of the public good, as well as to enhance the
coherence and integrity of legislation. In
Mureinik's
celebrated formulation, the new constitutional order constitutes ‘a
bridge away from a culture of authority . . . to a culture
of
justification’.”
20
(footnotes omitted)
It
is important that the present case be considered in its proper
context. The private security industry is a very particular
environment. At stake is the safety and security of the public at
large. Section 12 of the Constitution guarantees everyone
the
right to freedom and security of the person, which includes the
right to be free from all forms of violence from either public
or
private sources. In a society marred by violent crime, the
importance of protecting this right cannot be overstated.
That
is not to say that foreign nationals, including refugees, are
inherently less trustworthy than South Africans. In a country
where xenophobia is causing increasing suffering, it is important
to stress this. It is not that the Authority does not trust
refugees. Rather, it requires everyone to prove his/her
trustworthiness. The reality is that citizens and permanent
residents
will be more easily able to prove their trustworthiness
in terms of the Security Act.
The
Security Act is designed to limit eligibility for registration to
people whose trustworthiness can be objectively verified.
The
preamble to the Act acknowledges that the right to security of the
person is fundamental to the well-being and to the social
and
economic development of every person. To this end, the Act aims
to:
“
achieve and maintain a
trustworthy and legitimate private security industry which acts in
terms of the principles contained in the
Constitution and other
applicable law, and is capable of ensuring that there is greater
safety and security in the country”.
21
The
purpose served by stringent requirements for registration as
security service providers, in an open and democratic society
based
on human dignity, equality and freedom, is articulated by Satchwell
J in
Probe Security CC v The Security Officers’ Board
:
22
“
[Security service providers]
are granted access to private dwellings, industrial premises, retail
complexes, vehicles and a host
of otherwise private or off-limits
areas. The service is rendered for reward. It is without doubt an
extremely public undertaking.
. . .
Those persons who render such
security services ‘by their very nature carry an air of authority
vis a vis the public. They wear
uniforms. They bear arms. They
have all the outward appearances of having authority over lay
people’. Not only on premises
to which security officers have
been granted access but in the public sphere generally society as a
whole is vulnerable to any
abuses which might be perpetrated by such
persons.
Without doubt, society at large
and the clients of the [security business] have an interest in the
control [of] such a large private
force and rely upon [the Security
Officers Board to do so] by inter alia, ensuring that these armed
men have training in the use
of weaponry, are licensed to carry
firearms, are not convicted felons, are registered as security
officer[s] and subject to the
discipline and occupational standards
imposed by [the Security Officers Board]. The hazards to the public
if the standards applicable
to security officers are not maintained
and the practices of security officers are not regulated are
considerable, indeed life-threatening.”
23
(footnotes omitted)
The
remarks of Howie P, expressed in the
Private Security Industry
Regulatory Authority
case,
24
are in a similar vein:
“
The private security
industry has work for more people than the police and defence forces
combined. The security officers who operate
in the industry provide
personal and property protection. They secure enjoyment of others’
fundamental rights. In carrying
out their functions they often wear
uniforms, bear arms and are granted access to homes and other . . .
property. The Legislature
considered that in these circumstances it
was necessary to regulate the industry to monitor security service
providers. To ensure
the integrity and reliability of their service
it enacted the Private Security Industry Regulation Act 56 of 2001 .
. . which requires
security service providers to be registered.”
25
Differentiating
between citizens and permanent residents on the one hand, and all
other foreigners on the other, therefore has
a rational foundation
and serves a legitimate governmental purpose.
Does
the differentiation amount to discrimination?
Once
differentiation is established, the analysis then moves to the
question of discrimination. Discrimination is a particular
form of
differentiation. Unlike “mere differentiation”,
26
discrimination is differentiation on illegitimate grounds or on
grounds that have historically been associated with patterns
of
disadvantage.
27
Section 9(3) of the Constitution contains an open-ended list of
these grounds and this Court has held that differentiation on
grounds that are analogous to those listed in section 9(3) will
also constitute discrimination.
28
The
applicants contend that they have been victims of discrimination on
grounds analogous to those listed in section 9(3) in the
sense that
section 23(1)(a) differentiates between two classes of
non-citizens: permanent residents and refugees. They submit
that
the discrimination is unfair because its impact on them is severe.
Section
23(1)(a) does not, however, single out refugees. The
differentiation is between citizens and permanent residents on the
one hand, and all other foreigners, including holders of, for
example, temporary residence permits, visitor’s permits, study
permits, relative’s permits, work permits, retired person permits
and exchange permits, on the other.
29
For purposes of analysis I will assume without deciding that the
distinction between citizens and permanent residents on the
one
hand, and refugees who do not qualify for permanent residence on
the other, amounts to discrimination on a ground analogous
to those
specified in section 9(3) of the Constitution. The question, then,
is whether this discrimination is fair.
In
answering that question, the following factors have to be taken
into account:
Under
the Constitution a foreigner who is inside this country is entitled
to all the fundamental rights entrenched in the Bill
of Rights
except those expressly limited to South African citizens.
30
The
Constitution distinguishes between citizens and others as it
confines the protection of the right to choose a vocation to
citizens.
31
In
the final
Certification
case
32
this Court rejected the argument that the confinement of the right
of occupational choice to citizens failed to comply with the
requirements that the Constitution accord this “universally
accepted fundamental right” to everyone. It held that the right
of occupational choice could not be considered a universally
accepted fundamental right.
33
It also held that the European Convention for the Protection of
Human Rights and Fundamental Freedoms embodies no such right
to
occupational choice nor does the International Covenant on Civil
and Political Rights.
34
The distinction between citizens and foreigners is recognised in
the United States of America and also in Canada. There are
other
acknowledged and exemplary constitutional democracies such as
India, Ireland, Italy and Germany where the right to occupational
choice is extended to citizens or is not guaranteed at all.
35
In
Watchenuka
,
36
Nugent JA held that it is acceptable in international law that
every sovereign nation has the power to admit foreigners only
in
such cases and under such conditions as it may see fit to prescribe
and held that it is for that reason that the right to
choose a
trade or occupation or profession is restricted to citizens by
section 22 of the Bill of Rights.
37
Section
27(f)
of the
Refugees Act provides
that “[a] refugee is entitled
to seek employment”. Section 23(1)(a) of the Security Act limits
the refugees’ right to
choose employment only to the extent that
they may not work in the private security industry. It in no way
prevents them from
seeking employment in other industries.
The
door to the private security industry itself is also not completely
closed to the applicants. They may enter this single
excluded
industry if they successfully invoke the provisions of section
23(6) of the Security Act. In fact section 23(6) renders
the
provisions of section 23(1)(a) flexible and if properly applied
will save it from the overbreadth criticism.
It
is also open to the applicants to apply to the Minister, in terms
of section 1(2) of the Security Act, for the exemption of
the
service or activity of a car guard, for example, from the
provisions of the Security Act.
38
The
applicants may also, in terms of section 27(d) of the Immigration
Act, read with
section 27(c)
of the
Refugees Act, acquire
permanent
resident status in due course, like other refugees before them,
thereby complying with the requirements of section
23(1)(a) of the
Security Act and qualifying to enter the industry.
39
This occurs primarily when a refugee has been continuously
resident in South Africa for five years after she/he was granted
asylum and the Standing Committee for Refugee Affairs has certified
that he/she will remain a refugee indefinitely.
The
fairness enquiry also requires consideration of the provisions of
section 22 of the Constitution. Even though the applicants,
not
surprisingly, forswore reliance on section 22, it is relevant to
the analysis. This Court has held in many cases that the
rights
protected in Chapter 2 are mutually reinforcing and must be
interpreted in that way.
40
In
Affordable Medicines Trust,
41
in which section 22 was discussed in some detail, this Court held:
“
[T]wo constitutional
constraints define the scope of the regulation of the practice of a
profession which is permitted under s 22.
Legislation that
regulates practice will pass constitutional muster if (a) it is
rationally related to the achievement of a legitimate
government
purpose; and (b) it does not infringe any of the rights in the Bill
of Rights. What the Constitution therefore requires
is that the
power to regulate the practice of a profession be exercised in an
objectively rational manner. As long as the regulation
of the
practice, viewed objectively, is rationally related to the
legitimate government purpose, a court cannot interfere simply
because it disagrees with it or considers the legislation to be
inappropriate.”
42
Furthermore
Woolman
43
states:
“
Constitutional analysis
under the Bill of Rights takes place in two stages. First, the
applicant is required to demonstrate that
her ability to exercise a
fundamental right has been infringed. This demonstration itself has
several parts. To begin with, the
applicant must show that the
activity for which she seeks constitutional protection falls within
the sphere of activity protected
by a particular constitutional
right. If she is able to show that the activity for which she seeks
protection falls within the
value- determined ambit of the right,
then she must show, in addition, that the law or government action
in question actually impedes
the exercise of her protected activity.
This second showing may be satisfied by demonstrating that the law
or government action
either expressly intends to restrict the right
or effectively restricts the exercise of the right.
If the court finds that the law
in question infringes the exercise of the fundamental right, the
analysis may move to its second
stage. In this second stage the
government – or the party looking to uphold the restriction –
will be required to demonstrate
that the infringement is
justifiable.”
44
(footnotes omitted)
The
activity for which the applicants seek constitutional protection is
the enjoyment of the right to choose a vocation. The
activity does
not, however, fall within a sphere of activity protected by a
constitutional right available to refugees and other
foreigners.
In the circumstances, stage two cannot be reached. Accordingly, on
this approach as well, the applicants must fail.
Cases
distinguished or compared
In
Larbi-Odam
45
this Court required the state to extend certain protection and
benefits afforded to citizens to permanent residents as well.
The
Court reasoned as follows when distinguishing between permanent and
temporary residents:
“
A distinction should be
drawn between the impact of the regulations on permanent residents
and their impact on temporary residents.
In my view, the
regulations clearly constitute unfair discrimination as regards
permanent residents of South Africa. They have
been selected for
residence in this country by the Immigrants Selection Board, some of
them on the basis of recruitment to specific
posts. Permanent
residents are generally entitled to citizenship within a few years
of gaining permanent residency, and can be
said to have made a
conscious commitment to South Africa. Moreover, permanent residents
are entitled to compete with South Africans
in the employment
market. As emphasised by the appellants, it makes little sense to
permit people to stay permanently in a country,
but then to exclude
them from a job they are qualified to perform. . . .
I hold that reg 2(2)
constitutes unfair discrimination against permanent residents,
because they are excluded from employment opportunities
even though
they have been permitted to enter the country permanently. The
government has made a commitment to permanent residents
by
permitting them to so enter, and discriminating against them in this
manner is a detraction from that commitment. Denying permanent
residents security of tenure, notwithstanding their qualifications,
competence and commitment is a harsh measure.”
46
In
Khosa
47
this Court required the state to extend the right of access to
social security, previously limited to citizens, to permanent
residents.
Section 23(1)(a) of the Security Act already affords
permanent residents the same protection and benefits as citizens.
In
Watchenuka
48
every asylum seeker was totally prohibited, by the conditions in
his or her permit, from taking up any employment or studying,
pending the outcome of an application for asylum. What the SCA
understandably found unacceptable in
Watchenuka
was the
total exclusion from employment thereby rendering the asylum seeker
destitute. The position of the applicants herein
is totally
different. The
Refugees Act guarantees
the applicants the right to
seek employment. It is the
choice
of vocation that is
reserved only for citizens and permanent residents.
Lastly,
I refer to the Canadian case of
Andrews
49
which was brought by a permanent resident of Canada who had been
excluded from the practice of law. The position there is unlike
the position in
section 23(1)(a)
which ensures that the protection
and benefits afforded to citizens are extended to permanent
residents as well.
I
may add that in
Andrews
, Wilson J also acknowledged that
equality may be limited and further expressed the view that in
determining whether the limitation
is reasonable, the object sought
to be achieved by the impugned law must relate to concerns which
are pressing and substantial
in a free and democratic society.
50
It is not as if in Canada refugees would receive unlimited access
to any kind of occupation.
The
qualifications or requirements for the activities of a security
service provider and of a lawyer are different. Mr Andrews
probably needed to spend five years qualifying himself for the
practice of law. He satisfied all the requirements for admission
as a lawyer.
51
It was not a case of Mr Andrews claiming qualification merely by
virtue of being a foreigner and member of a vulnerable group.
It
would seem that the private security industry has its own special
requirements for qualification: trustworthiness, reliability,
genuine devotion to and readiness to defend the paramount interest
of the community or the public including life, limb and property.

The legislature determined that it requires five years
52
within which to investigate and check on the background of the
applicant and to verify information received against direct

observation of actions and reactions in a variety of situations and
thereafter to decide whether an applicant is a fit and proper
person to render a security service.
International
instruments
South
Africa is a signatory to the UN Convention. The applicants have
relied on article 17(1) of the UN Convention which provides
that
signatory states “shall accord to refugees lawfully staying in
their territory the most favourable treatment accorded
to nationals
of a foreign country in the same circumstances as regards the right
to engage in wage-earning employment.”
Article
6 of the UN Convention elaborates on the phrase ‘in the same
circumstances’ as follows:
“
For the purposes of this
Convention, the term ‘in the same circumstances’, implies that
any requirements (including requirements
as to length and conditions
of sojourn or residence) which the particular individual would have
to fulfil for the enjoyment of
the right in question, if he were not
a refugee, must be fulfilled by him, with the exception of
requirements which by their nature
a refugee is incapable of
fulfilling.”
The
respondents contend that the obligation imposed by article 17(1) is
not breached because permanent residents are the only
foreigners
treated more favourably than refugees. In the respondents’ view,
the question thus resolves itself into whether
article 17(1)
entitles refugees to be afforded the same treatment as permanent
residents.
Insofar
as the application of article 17(1) in the present circumstances is
concerned, the refugees
are
accorded the most favourable
treatment afforded to a national of a foreign country in the same
circumstances as regards the right
to engage in wage-earning
employment. The applicants may not be treated as permanent
residents because they are not in the same
circumstances for the
simple reason that they have yet to meet the requirements for
permanent residence.
Accordingly,
the discrimination in this matter, objectively determined, has very
little, if any, potential to impair the essential
content of the
dignity of the applicants in any significant or substantial manner
and is fair.
I
recapitulate, the discrimination is not unfair and does not breach
the equality right at the threshold. This is particularly
so if
the entire statutory scheme of the employment qualification is
taken into consideration. The scheme is for a limited fixed
period; it is not a blanket ban on employment in general but is
narrowly tailored to the purpose of screening entrants to the
security industry; it is flexible and has the capacity to let in
any foreigner when it is appropriate and to avoid hardship against
any foreigner. It permits blanket exemption of categories of work
within the industry and permits departure from the strict
requirements of
section 23(1)(a)
on “good cause shown”. In
short, the discrimination is a legitimate legislative choice on a
highly prized public interest
which is safety and security, in a
country where security workers in this industry exceed the police
and the army in number.
Do
the respondents’ decisions constitute administrative action?
Should
the argument pertaining to the constitutionality of
section
23(1)(a)
fail, as in my judgment it must, the applicants seek, in
the alternative, judicial review of the individual decisions of the

Authority and the Appeal Committee.
53
This takes us into the realm of administrative law. In terms of
section 6(1) of the Promotion of Administrative Justice Act
3 of
2000 (“PAJA”), any person may institute proceedings for
judicial review of administrative action. The initial question
is
thus whether the decisions constitute administrative action in
terms of PAJA. The applicants’ contention is that these
decisions constitute administrative action as defined in PAJA.
The
relevant part of the definition of administrative action in section
1 of PAJA reads:
“‘
Administrative action’
means any decision taken, or any failure to take a decision, by─
(a) an organ of state, when─
(i) . . .
(ii) exercising a public power
or performing a public function in terms of any legislation; or
(b) 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,
which adversely affects the
rights of any person and which has a direct, external, legal
effect”.
The
respondents have, in answering affidavits in the High Court, denied
that the aforesaid decisions constitute administrative
action. The
denial is based on the assertion that the decisions do not have a
direct external legal effect on the applicants.
The assertion is
erroneous. The refusal to register an applicant as a private
security service provider is an adverse determination
of the
applicants’ rights. The determination has an immediate, final
and binding impact on the applicants, who have no connection
with
the Authority. The decisions therefore do have a direct, external,
legal effect and constitute administrative action in
terms of PAJA.
The
right to institute judicial review
As
mentioned above, in terms of section 6(1) of PAJA, any person may
institute proceedings for judicial review of administrative
action.
However, section 7(2)(a) provides that persons dissatisfied with
an administrative action must exhaust their internal
remedies
before instituting proceedings for judicial review.
54
Notwithstanding this provision, section 7(2)(c) confers a
discretion on a court to exempt an applicant for judicial review of
administrative action, in exceptional circumstances and on
application, from exhausting internal remedies if to do so is in

the interests of justice.
55
The fifth, sixth, twelfth and thirteenth applicants have not
appealed to the Appeal Committee and consequently have not
exhausted
their internal remedies. Neither did they apply for
exemption from the provisions of section 7(2)(a) in terms of
section 7(2)(c).
It is not necessary to come to a firm conclusion
on this matter. Should these applicants so choose, they may
approach the Authority
in terms of section 23(6) as discussed
below.
Reasons
The
applicants raise many grounds of review, allegedly flowing from
reasons given by the respondents. However, the applicants
base
their grounds of review on reasons the applicants themselves
gleaned from submissions made by the Authority to the Appeal
Committee in response to the appeals lodged to the Appeal
Committee, as well as on the reasons implied in a memorandum of the
Authority dated 27 August 2002.
There
seems to be some confusion between the parties as to whether the
applicants were in fact given reasons for the decisions
of the
Authority and the Appeal Committee. The applicants seem to be of
the view that reasons were given by the Appeal Committee
at least.
In their written argument, the applicants refer twice to reasons
given by the Appeal Committee. The respondents on
the other hand,
take the position that no reasons were given until the following
reasons were provided in the course of this
litigation:
The
applicants failed to comply with the requirement of citizenship or
permanent residence in terms of section 23(1)(a); and
The
applicants did not, in terms of section 23(6), show good cause for
exemption from these requirements.
It
must be pointed out that even if review were to be based on the
grounds of review relied upon by the applicants, most of these
grounds
56
seem to be directed more at the validity of section 23(1)(a) itself
than at the validity of the decisions. Once it is accepted,
as has
been done above, that the requirement enshrined in section 23(1)(a)
is rationally connected to a legitimate government
purpose and does
not amount to unfair discrimination, then absent some other problem
with the decisions made, they have been
correctly made under the
relevant empowering provision which in this case is section
23(1)(a).
Section
23(6) of the Security Act
The
applicants challenge the approach of the Authority that exercises
its discretion in terms of section 23(6) only when it is
specifically asked to do so. They submit that the Authority
should, in every case in which an applicant does not comply with
any of the requirements of section 23(1), consider exemption in
terms of section 23(6) of its own accord, even when the applicant
has not asked it to do so and has not advanced any good cause for
exemption.
The
submission that the Authority should consider exemption even when
the applicant has not advanced good cause for it is misconceived.

In terms of section 23(6) of the Security Act, the Authority
dispenses with the requirements of sections 23(1) and (2) of the
Security Act “on good cause shown”. Therefore, if the
applicants in this case required exemption in terms of section
23(6),
it was incumbent upon them to advance good reasons for it.
The
applicants misunderstand the kind of discretionary power conferred
on the Authority by section 23(6) of the Security Act.
As noted by
Professor Yvonne Burns, there is a distinction between the
discretion proper and conditions precedent to the exercise
of a
discretion. A discretion proper is the power to choose between
legally valid but different courses of action. The official
“has
a free choice within limits set by law, and that choice determines
the legal consequences of the action.”
57
The
conditions precedent are those facts that must be complied with
before the discretion may be exercised. They are determined
by the
legislature. The official has no choice in respect of these
conditions.
58
The exercise of a discretionary statutory power by an
administrative official therefore, must be linked to compliance
with
the conditions precedent. The official must be satisfied that
the conditions precedent or jurisdictional facts are present before
exercising the discretionary power. In the circumstances of this
case, the existence of good cause shown functions as a condition
precedent to the exercise of the discretion conferred on the
Authority by section 23(6). If good cause is not shown therefore,
the Authority cannot invoke its discretion under section 23(6) of
the Security Act. What will constitute good cause in any

particular case is discussed below.
One
of the problems associated with this case is the apparent lack of
information and assistance provided by the Authority to
refugee
applicants in relation to their applications. The applicants
submit that, at the absolute least, the respondents could
and
should have informed the applicants and other refugees wishing to
apply for registration that they must submit applications
in terms
of section 23(6) if they wished to be exempt from the provisions of
section 23(1)(a). This expectation is well founded
in the light of
the extent of refugee participation in this industry at the time of
the introduction of the regulatory scheme.
Is the provision of
this information not an element of procedurally fair administrative
action envisaged in section 3 of PAJA?
In
fact it is not at all clear how an applicant is required to apply
for exemption in terms of section 23(6) if that is what they
wish
to do. The standard application form makes no mention of section
23(6). Mr Seth Mogapi, Director of the Authority and
deponent to
the first respondent’s answering affidavit in the High Court,
says of the application form that:
“
The purpose of such form is
not to invite submissions in terms of Section 23(6) of the Act but
to determine whether an applicant
for registration complies with the
standard and general statutory criteria for registration”.
There
is no evidence of information about applications for exemption in
terms of section 23(6) being provided to refugee applicants,
nor
about the possibility of exemption in terms of section 1(2) of the
Security Act.
59
The
Authority has indicated that a supplementary application is needed
to invoke section 23(6). In response to an appeal launched
by a
refugee applicant, Mr Rutimba, the Authority stated that:
“
It may be argued that if an
application does not
prima facie
meet the requirements for an
application (or any other registration requirements), but is
accompanied by a further substantive
application – which Appellant
did not do – setting out a case in terms of section 23(6) of the
PSIRA Act, the Respondent will
have no choice but to accept and
consider such application in terms of the relevant provisions. For
example a refugee submits
an application not accompanied by proof of
permanent resident status, but also submits a document containing
representations intended
to indicate that Respondent should act in
terms of section 23(6) of the PSIRA Act and grant registration. The
deficient application
is then accompanied by a further application.”
It
is noted that the information about a supplementary application for
exemption is provided only in response to an appeal launched
by an
applicant against the withdrawal of registration. It does not
appear to be information available to applicants in general,
nor to
refugees specifically, who are internationally and nationally
recognised as a vulnerable group in society, with limited
resources
to secure the protection of their rights.
According
to section 195(1)(g) of the Constitution, transparency must be
fostered in public administration by providing the public
with
timely, accessible and accurate information. The least that can be
done by the Authority is to furnish the refugee applicants
with
information regarding the existence of various categories of
security activities and information regarding the possibility
of
exemptions and the procedure for applying for them. Of course, for
his/her part, an applicant or his/her legal adviser must
also be
co-operative, providing the material in the form needed.
At
least some of the applicants invoked section 23(6) in their appeals
to the Appeal Committee
60
but none of the applicants applied for exemption directly to the
Authority. This failure is understandable given the paucity
of
information emanating from the Authority as to the existence of the
possibility of exemption and the procedure for applying
for it.
The
real issue, which is whether or not there are facts which should
have been provided and considerations which should have been
taken
into account in judging whether “good cause” has been shown
within the meaning of section 23(6) of the Security Act,
has been
overshadowed by the question of at whose instance section 23(6)
should be raised. It should be emphasised that section
23(6)
expressly contemplates that at times the requirements of section
23(1) will not be met by a particular applicant but that
nevertheless that applicant may be entitled to be registered as a
security service provider. It is not open to the Authority
therefore, in refusing to grant exemption in terms of section
23(6), simply to point to the fact that a particular applicant
is
not a citizen or permanent resident of South Africa. The Authority
needs to consider all relevant facts placed before it
by the
applicant and decide whether those facts amount to “good cause”
for the purposes of section 23(6).
The
Security Act does not specify the factors which are relevant to
determining whether “good cause” exists for purposes of
section
23(6). Ordinarily, “good cause” will depend on the particular
circumstances of each case. However, it seems clear
that important
considerations will include: the personal circumstances of the
applicant seeking employment in the private security
industry; the
length of his/her stay in the country as a refugee; the character
of the work applied for; whether the applicant
has previously
worked in a similar or comparable industry and whether he/she has
earned the requisite trust in other ways. It
appears so that the
spectrum of security service providers extends from car guards
without weapons to cash-in-transit security
guards with weapons.
This feature of the industry indicates that the Authority must
exercise a reasonable measure of flexibility.
This will avoid a
blanket exclusion of refugee applicants without properly weighing
whether their employment is likely to frustrate
the objects of the
Security Act. Should the Authority fail to do so, it would be
acting in a manner inconsistent with the power
given to it by the
provisions of section 23(6).
An
application for exemption to the Authority is an internal remedy
still available to the applicants. It is only fair, now that
the
applicants are aware of what is expected as regards an application
for exemption, and the Authority has the guidance of this
judgment
at its disposal when considering exemption applications, that they
be given an opportunity to so apply. Accordingly,
in terms of
section 7(2)(a) of PAJA, this Court is not called upon to make any
determination on the granting of exemption. This
decision is
strengthened by the fact that the correctness or otherwise of the
particular administrative decisions was not pronounced
upon by the
High Court. It should be added however, that in considering the
applications, the Authority is obliged to do so
in the light of the
considerations relevant to “good cause” set out above.
Since
preparing this judgment, I have had the opportunity to read the
thoughtful and eloquent judgment of my colleague Sachs J.
I would
like to express my support for the spirit and tenor of his
judgment.
Costs
The
applicants are indigent people in a particularly vulnerable
position in society. While the application for a declaratory
order
that section 23(1)(a) is unconstitutional was not successful, they
have raised important constitutional issues of practical
relevance
to the functioning of an industry which is becoming increasingly
important in South Africa. The applicants had to
resort to
constitutional litigation to clarify practical aspects of the
operation of the regulatory scheme due to the lack of
information
and guidance on the part of the respondents. It is thus
appropriate to order the respondents to bear the costs of
the
applicants including the costs attendant on the employment of two
counsel in the High Court and this Court.
Order
The
following order is therefore made:
Leave to appeal is granted.
The challenge to the constitutionality of section 23(1)(a) of
the Private Security Industry Regulation Act 56 of
2001 is
dismissed.
The second to thirteenth applicants be given an opportunity
to apply for exemption in terms of section 23(6) of the
Private Security Industry Regulation Act 56 of 2001.
The respondents must ensure that all applicants and potential
applicants for exemption as security service providers
are
made aware of the nature of the information that must be
furnished in their applications for exemption in terms
of
section 23(6) of the Private Security Industry Regulation Act
56 of 2001.
All applications for exemption referred to in paragraphs 3
and 4 of this order must be considered in the light of
this
judgment.
The respondents are ordered to pay the applicants’ costs
jointly and severally, the one paying the others to be
absolved, including the costs of two counsel in the High
Court and this Court.
Moseneke DCJ, Madala J, Nkabinde J, Sachs J and Yacoob J concur in
the judgment of Kondile AJ.
MOKGORO J and O’REGAN J:
We
have had the pleasure of reading the judgment prepared in this
matter by Kondile AJ. We have one substantive disagreement
with
his judgment and that relates to whether section 23(1)(a) of the
Private Security Industry Regulation Act 56 of 2001 (the
Act) is
inconsistent with section 9(3) of the Constitution. Kondile AJ
concludes it is not. We cannot agree.
Section 23(1)(a) provides that:
“
Any natural person applying
for registration in terms of section 21(1), may be registered as a
security service provider if the
applicant is a fit and proper
person to render a security service, and –
(a) is a citizen or has
permanent resident status in South Africa”.
The further qualifications for registration contained in section
23(1) include that the applicant must be at least 18 years old,
1
must have completed the prescribed training
requirements,
2
must not have been found guilty of any offence
3
specified in the Schedule to the Act within a period of ten years of
the application,
4
must submit a prescribed clearance certificate if the applicant has
formerly been a member of any official military, security or
police
force in South Africa or elsewhere,
5
and be mentally sound.
6
It is clear from this list that an applicant must satisfy the
Private Security Industry Regulatory Authority (the Authority) that
he or she complies with these requirements. Of particular note is
the requirement that an applicant must show that he or she has
not
been convicted of a criminal offence in the previous ten years. In
the case of those applicants who have not been resident
in South
Africa for the last ten years, the regulations promulgated under the
Act by the Minister for Safety and Security, provide
for an
applicant to lodge an “original police or other official clearance
certificate on his or her criminal record status from
every country
outside South Africa where he or she has been resident within the
relevant period”.
7
A
“security service provider” is defined in the Act as a person
who renders a security service to another for reward.
8
A “security service” is also widely defined, to mean –
“
one or more of the following
services or activities:
(a) protecting or safeguarding
a person or property in any manner;
(b) giving advice on the
protection or safeguarding of a person or property, on any other
type of security service as defined in
this section, or on the use
of security equipment;
(c) providing a reactive or
response service in connection with the safeguarding of a person or
property in any manner;
(d) providing a service aimed
at ensuring order and safety on the premises used for sporting,
recreational, entertainment or similar
purposes;
(e) manufacturing, importing,
distributing or advertising of monitoring devices contemplated in
section 1 of the Interception and
Monitoring Prohibition Act, 1992
(Act No. 127 of 1992);
(f) performing the functions of
a private investigator;
(g) providing security training
or instruction to a security service provider or prospective
security service provider;
(h) installing, servicing or
repairing security equipment;
(i) monitoring signals or
transmissions from electronic security equipment;
(j) performing the functions of
a locksmith;
(k) making a person or the
services of a person available, whether directly or indirectly, for
the rendering of any service referred
to in paragraphs (
a
) to
(
j
) and (
l
), to another person;
(l) managing, controlling or
supervising the rendering of any of the services referred to in
paragraphs (
a
) to (
j
);
(m) creating the impression, in
any manner, that one or more of the services in paragraphs (
a
)
to (
l
) are rendered”.
It
can be seen from this definition that a wide range of security
services are included. The definition embraces unarmed people
who
guard parked cars as well as armed bodyguards. The Act prohibits
the provision of any of these services by any person who
is not
registered as a security service provider in terms of the Act.
9
It does not appear expressly from the terms of the Act that the
Authority may register a security service provider for a narrow
range of security duties, for example, as an unarmed security
service provider. In our view, it would be practical if the

Authority were able to register security service providers for
specific forms of security service. It is not necessary to decide
in this case whether the Act does permit this or not.
An
application to be registered as a security service provider is made
to the Authority. The Authority may refuse the registration
of an
applicant if, at the time of the consideration of the application,
the applicant is under investigation in respect of an
offence
included in the schedule
10
or even if the applicant was convicted of such an offence more than
ten years prior to the application.
11
The Authority may, despite the provisions of section 23(1) and
(2), on good cause shown and on grounds not in conflict with
the
purposes of the Act, register a person as a security service
provider.
12
In our view, Kondile AJ is correct when he concludes that section
23(6) must be read to mean that a person who does not comply
with
all of the provisions of section 23(1) and (2) may nevertheless be
registered if good cause is shown for such registration.
13
As Kondile AJ therefore holds, the Authority may not simply rely
on non-compliance with a requirement under section 23(1) or
(2)
when reaching its conclusion that “good cause” has not been
shown for the purposes of section 23(6).
If
an application is refused by the Authority, the unsuccessful
applicant may appeal to an appeal committee within 60 days of
receiving notice that the application has been refused.
14
The appeal committee is independent of the Authority and the
members of the appeal committee may have no interest in the private
security industry.
15
Eight of the applicants in the present proceedings lodged appeals
against the decisions of the Authority, three in respect of
the
withdrawal of their registration as security service providers,
16
and five in respect of the refusal to register them as security
service providers.
17
All these appeals were unsuccessful.
The
simple question is whether section 23(1)(a), in excluding
recognised refugees from being registered as security service

providers, constitutes unfair discrimination within the meaning of
section 9(3) of the Constitution.
18
Before
turning to consider the status of refugees, it is important to note
that the differentiation drawn in section 23(1)(a)
is between
citizens and permanent residents on the one hand and all foreign
nationals on the other. The only issue that arises
in this case,
however, is whether the provision to the extent it excludes
“refugees” from its scope is unconstitutional.
The
constitutionality of the exclusion of all other foreign nationals
by section 23(1)(a) does not arise for decision in this
case. This
group includes foreign nationals who have rights to reside in South
Africa; that is foreign nationals who are in
South Africa on
temporary work permits or study permits or even tourist visas, and
foreign nationals who are in the country unlawfully.
Refugees
who have been granted asylum are a special category of foreign
nationals. They are more closely allied to permanent
residents
than to those foreign nationals who have rights to remain in South
Africa temporarily only. Permanent residents have
a right to
reside in South Africa and enjoy “all the rights, privileges,
duties and obligations” of citizens save for those
which a law or
the Constitution explicitly ascribes to citizenship.
19
Recognised refugees also have a right to remain in South Africa
indefinitely in accordance with the provisions of the
Refugees Act
20
so
their position is closer to that of permanent residents than it
is to foreign nationals who have only a temporary right to be in
South Africa or foreign nationals who have no right to be here at
all. To understand the special position of refugees, it is
important to understand how refugee status is conferred in our law,
as well as South Africa’s international obligations in
respect of
refugees.
Refugee
status may be conferred upon a person in terms of the
Refugees Act.
Section
3 of that Act provides that a person will qualify for
refugee status if that person –
“
(a) owing to a well-founded
fear of being persecuted by reason of his or her race, tribe,
religion, nationality, political opinion
or membership of a
particular social group, is outside the country of his or her
nationality and is unable or unwilling to avail
himself or herself
of the protection of that country, or, not having a nationality and
being outside the country of his or her
former habitual residence is
unable or, owing to such fear, unwilling to return to it; or
(b) owing to external
aggression, occupation, foreign domination or events seriously
disturbing or disrupting public order in either
a part or whole of
his or her country of origin or nationality, is compelled to leave
his or her place of habitual residence in
order to seek refuge
elsewhere.”.
21
A reading of these provisions gives some understanding of the
predicament in which refugees generally find themselves. Refugees
have had to flee their homes, and leave their livelihoods and often
their families and possessions either because of a well-founded
fear of persecution on the grounds of their religion, nationality,
race or political opinion or because public order in their
home
countries has been so disrupted by war or other events that they
can no longer remain there. Often refugees will have left
their
homes in haste and find themselves precariously in our country
without family or friends, and without any resources to
sustain
themselves.
Not
every person who flees their home in the circumstances referred to
in
section 3
of the
Refugees Act will
obtain refugee status in
South Africa. A prospective refugee needs to apply for refugee
status. People will be excluded from
refugee status if they have
been guilty of serious crimes or war crimes.
Section 4
of the
Refugees Act provides
–
“
(1) A person does not
qualify for refugee status for the purposes of this Act if there is
reason to believe that he or she –
(a) has committed a crime
against peace, a war crime or a crime against humanity, as defined
in any international legal instrument
dealing with any such crimes;
or
(b) has committed a crime which
is not of a political nature and which, if committed in the
Republic, would be punishable by imprisonment;
or
(c) has been guilty of acts
contrary to the objects and principles of the United Nations
Organisation or the Organisation of African
Unity; or
(d) enjoys the protection of
any other country in which he or she has taken residence.”
22
The
first step in the process is to make an application for an
asylum-seeker permit.
23
Thereafter, an applicant applies for asylum. Once a person has
satisfied the authorities that he or she qualifies for refugee
status, asylum will be granted, and he or she is then deemed to be a
refugee for the purposes of the
Refugees Act.
24
A
recognised refugee has a range of rights. These rights are to be
found in
section 27
of the
Refugees Act but
many of them arise from
the obligations South Africa has undertaken in terms of
international law.
Section 27
provides that a refugee –
“
(a) is entitled to a formal
written recognition of refugee status in the prescribed form;
(b) enjoys full legal
protection, which includes the rights set out in Chapter 2 of the
Constitution and the right to remain in
the Republic in accordance
with the provisions of this Act;
(c) is entitled to apply for an
immigration permit in terms of the Aliens Control Act, 1991, after
five years’ continuous residence
in the Republic from the date on
which he or she was granted asylum, if the Standing Committee
certifies that he or she will remain
a refugee indefinitely;
(d) is entitled to an identity
document referred to in section 30;
(e) is entitled to a South
African travel document on application as contemplated in section
31;
(f) is entitled to seek
employment; and
(g) is entitled to the same
basic health services and basic primary education which the
inhabitants of the Republic receive from
time to time.”
As many of these rights arise from international law, they need to
be understood in the light of our international obligations
arising
under the Refugees Convention and the 1967 Protocol relating to the
Status of Refugees.
25
The long title to the
Refugees Act acknowledges
that the purpose
of the Act is to –
“
. . . give effect within the
Republic of South Africa to the relevant international legal
instruments, principles and standards
relating to refugees. . . .”
And
the Preamble to the Act provides that –
“
Whereas the Republic of
South Africa has acceded to the 1951 Convention Relating to the
Status of Refugees, the 1967 Protocol relating
to the Status of
Refugees and the 1969 Organisation of African Unity Convention
Governing the Specific Aspects of Refugee Problems
in Africa as well
as other human rights instruments, and has in so doing, assumed
certain obligations to receive and treat in its
territory refugees
in accordance with the standards and principles established in
international law.”
The
circumstances that qualify an applicant for refugee status in
section 3 of the Act are drawn from the provisions of the 1951
UN
Convention and the OAU Convention.
26
It is important to note that political events on our continent
have resulted in many people becoming refugees. South Africa
has
played its own tragic role in this history. Many South Africans
fled South Africa during the apartheid era to avoid persecution
at
home. They were welcomed warmly and given support and sustenance
by countries all over our continent and elsewhere. Africa’s
special refugee problem was recognised in the late 1960s by the
Organisation of African Unity which led to the adoption of the
OAU
Convention regulating refugees.
27
The
rights of refugees provided for in
section 27
of the
Refugees Act
are
based on the provisions of the UN Convention and need to be
understood in terms of that Convention. Where there is any doubt

as to the meaning of these provisions, preference should be given
to a meaning which is consistent with our international
obligations,
for
section 233
of our Constitution provides that –
“
When interpreting any
legislation, every court must prefer any reasonable interpretation
of the legislation that is consistent with
international law over
any alternative interpretation that is inconsistent with
international law.”
In
addition, the Constitution enjoins us to consider international law
when interpreting the rights in the Bill of Rights.
28
Our international law obligations are therefore relevant to the
interpretation both of the legislation under consideration in
this
case, and of interpreting section 9(3) of the Constitution.
One
of the most important obligations of a state in relation to
refugees relates to the refugees’ right to work. This is of
particular importance in South Africa as no form of grant or social
assistance is available to refugees and a refugee will generally
have no other way of providing for the basic necessities of life
unless he or she is able to find work. Article 17 of the 1951
UN
Convention provides that –
“
(1) The Contracting State
shall accord to refugees lawfully staying in their territory the
most favourable treatment accorded to
nationals of a foreign country
in the same circumstances, as regards the right to engage in
wage-earning employment.
(2) In any case, restrictive
measures imposed on aliens or the employment of aliens for the
protection of the national labour market
shall not be applied to a
refugee who was already exempt from them at the date of entry into
force of this Convention for the Contracting
State concerned, or who
fulfils one of the following conditions:
(a) He [or she] has completed
three years’ residence in the country;
(b) He [or she] has a spouse
possessing the nationality of the country of residence. A refugee
may not invoke the benefits of this
provision if he has abandoned
his [or her] spouse;
(c) He [or she] has one or more
children possessing the nationality of the country of residence.”
Article
17 is not easy to interpret. Subsection (1) provides that refugees
must be accorded “the most favourable treatment
accorded to
nationals of a foreign country in the same circumstances” as
refugees. One of the difficulties with this formulation
is that,
whatever the situation may be in other countries, there are no
nationals of a foreign country in South Africa who are
identically
situated to refugees. The status of being a refugee is unique in
our law and not identical to any of the other categories
of foreign
national. Yet if article 17(1) were to have application only where
the situation of refugees is identical to the
situation of other
foreign nationals in South Africa, the effect would be that article
17(1) would accord little or no protection
to the right to work for
recognised refugees in South Africa, as there would be no
comparator group to which refugees could compare
themselves. Such
an approach would be inconsistent with the spirit and purport of
the international convention which clearly
seeks to confer, at the
very least, a limited right to work on refugees.
In
our view, article 17(1) needs to be given a meaning that carries
with it some substantive protection for refugees. To achieve
this
purpose, the article should be interpreted to mean that refugees
should be given “the most favourable treatment” accorded
to
those foreign nationals in South Africa whose status is most
similar to “refugees”. In our view, recognised refugees
are
most similarly situated to permanent residents. All other foreign
nationals who are lawfully in the country only have temporary
rights of residence, unlike recognised refugees who according to
section 27(b)
of the
Refugees Act
29
have
a right to remain indefinitely in the Republic. Moreover,
like permanent residents, refugees are entitled to seek employment

in terms of section 27(f) of the Act.
30
Ordinarily, in our view, therefore, the obligation imposed by
article 17(1) of the UN Convention would require recognised

refugees to be afforded the same work opportunities as permanent
residents.
Subsection
(2) of article 17 relates to restrictions on the employment of
refugees where the purpose of that restriction is “for
the
protection of the national labour market”. The Convention
provides that such protection may not operate to restrict refugees
who have been in South Africa for three years or more, or who are
married to South African citizens, or who have children who
are
South African citizens. Section 23(1)(a) contains no such
qualification. Counsel for the respondents expressly disavowed
that the purpose of section 23(1)(a) is to protect the labour
market for South African citizens. If that is so, and we assume
it
to be so for the purposes of this argument, article 17(2) would
have no application to the facts of this case.
One
last issue needs to be considered before we turn to the question of
unfair discrimination. Section 22 of the Constitution
provides
that:
“
Every citizen has the right
to choose their trade, occupation or profession freely. The
practice of a trade, occupation or profession
may be regulated by
law.”
The
applicants do not seek to rely on this provision. Nevertheless,
this Court has held that the rights in the Bill of Rights must
be
interpreted in a manner which recognises that they are mutually
reinforcing and inter-dependent.
31
The question is what effect, if any, section 22 has on the
applicants’ claim in this case. Section 23(1)(a) does not limit
the right to work as a security service provider to South African
citizens only, it permits permanent residents to work as security
service providers. Whether it would have been open to the
applicants to challenge section 23(1)(a) on the basis of unfair
discrimination,
were its provisions to have been limited to
citizens, is not an issue we need to decide here. It is clear from
section 27(b)
of the
Refugees Act that
recognised refugees are
protected by the Bill of Rights which includes the entitlement not
to be the subject of unfair discrimination
on the grounds of their
refugee status. The discrimination in this case therefore does not
involve the reservation of certain
occupations for South African
citizens only. In our view
section 22
has no application to the
applicants’ claim.
It
is against this background that the question whether
section
23(1)(a)
constitutes unfair discrimination must be considered. The
first question is whether discrimination against the group of
recognised
refugees is discrimination on a ground unspecified in
section 9(3)
, but nevertheless falling within the scope of the
constitutional prohibition of unfair discrimination contained in
that subsection.
In
Harksen v Lane NO and Others
, this
Court held that:
“
There will be discrimination
on an unspecified ground if it is based on attributes or
characteristics which have the potential to
impair the fundamental
dignity of persons as human beings, or to affect them adversely in a
comparably serious manner.”
32
The
question is thus whether discriminating against recognised refugees
is likely to infringe their human dignity or impair their
rights in
some comparatively serious manner.
33
In our view, discriminating against refugees as a group may well
infringe their dignity or impair their rights in a comparatively
serious manner. Recognised refugees in South Africa are, by
definition, a group of people who have been found by the Standing
Committee for Refugee Affairs to have established that they qualify
for refugee status as defined in section 3 of the Act, and
not to
have been excluded from that status under any of the statutory
exclusions. To be afforded refugee status a refugee has
to
establish that they have had to flee their homeland because of a
well-founded fear of persecution or owing to the fact that
external
aggression or other events have so disrupted their lives that they
need to flee. By definition, too, refugees are not
in their home
country and are therefore deprived of the security that family and
friends can ordinarily provide. Having fled
their homes, they are
in no position to return to their own countries while the reason
for their flight persists. In addition,
should they be found
guilty of committing a serious offence, they may be at risk of
losing their refugee status and being expelled.
34
In our view, therefore, discriminating against refugees involves
discriminating against a vulnerable group of people such that
discrimination against them will often impair their dignity or
their rights in a serious manner.
We
are fortified in this conclusion by the provisions of article 17(1)
of the UN Convention which requires recognised refugees
to be
afforded the most favourable treatment in relation to the right to
work as other similarly situated foreign nationals.
We have
concluded that the foreign nationals most similarly situated to
refugees in South Africa are permanent residents. Distinguishing
between permanent residents and recognised refugees, as section
23(1)(a) does, is a form of discrimination contemplated by section
9(3) of the Constitution. Construing section 9(3) in this way
gives proper weight to our international law obligations in the
light of the constitutional injunction to do so.
The
next question that arises is whether in precluding recognised
refugees from being registered as security service providers,
section 23(1)(a) of the Act discriminates unfairly against them.
In answering this question, the approach established in
Harksen’s
case must be followed.
35
Three factors are of particular importance: the position of the
complainants in society; the nature of section 23(1)(a) and
its
purpose; and the effect of section 23(1)(a) on refugees. In
relation to the second consideration, the nature of the
discriminatory
provision and its purpose, Goldstone J reasoned as
follows in
Harksen
:
“
If its purpose is manifestly
not directed, in the first instance, at impairing the complainants
in the manner indicated above, but
is aimed at achieving a worthy
and important societal goal, such as, for example, the furthering of
equality for all, this purpose
may, depending on the facts of the
particular case, have a significant bearing on the question whether
complainants have in fact
suffered the impairment in question.”
36
Before we turn to an analysis of these three factors in the context
of the present case, it is useful to be reminded that the
purpose
of the equality provision in our Constitution is as follows:
“
The prohibition on unfair
discrimination in the interim Constitution seeks not only to avoid
discrimination against people who are
members of disadvantaged
groups. It seeks more than that. At the heart of the prohibition
of unfair discrimination lies a recognition
that the purpose of our
new constitutional and democratic order is the establishment of a
society in which all human beings will
be accorded equal dignity and
respect regardless of their membership of particular groups.”
37
We
consider now the three factors identified in
Harksen
. The
group discriminated against in this case is refugees. We have
already found that although refugee status is not a ground
listed
in section 9(3) of the Constitution, refugees as a group are by
definition vulnerable. Discrimination on the ground of
refugee
status thus may well violate the dignity of refugees or impair
their rights in a serious manner. Excluding them from
work
opportunities as private security service providers is a form of
discrimination that may exacerbate the situation in which
refugees
find themselves and be harmful to them as a group.
The
next question that arises requires us to identify the purpose of
the exclusion in section 23(1)(a). Counsel for the Minister
expressly stated that the purpose of section 23(1)(a) was to ensure
that those who enter the security service industry have been
properly vetted to ensure that they are trustworthy and reliable
security service providers. He expressly disavowed reliance
on any
purpose that would seek to protect the labour market for South
Africans. Kondile AJ found that the purpose of section
23(1)(a)
was to ensure that security services providers are trustworthy.
While the purpose is worthy,
we cannot agree
that giving effect to the purpose through section 23(1)(a) is
legitimate as it appears to be based on an illegitimate
silent
premise.
The premise may be that foreign nationals,
including refugees, are as a group inherently less trustworthy than
South Africans.
In our view, such a premise is not supported by
any evidence placed before the Court and would amount to unfair and
damaging
stereotyping of foreign nationals. For the rest, we agree
with Kondile AJ that ensuring that security service providers in
general
are trustworthy and reliable is a legitimate government
purpose. We are not persuaded however that this purpose is
promoted
by excluding all refugees from being registered as
security service providers. In this regard, it is important to
note that
the regulations specifically provide for the provision of
police clearance certificates or other official certificates from
countries
other than South Africa where applicants have resided in
the last ten years.
Of
greater concern is that the purpose identified by counsel seems to
be amply covered by the other provisions of section 23 which
achieve this purpose more appropriately and without discriminating
against refugees. Section 23(1)(d)
38
requires applicants for registration not to have been found guilty
of an offence listed in the first schedule to the Act within
ten
years of the application for registration. This requirement needs
to be read in the light of regulation 2 which provides
for the
furnishing of police clearance certificates by applicants. There
may well be refugees who can satisfy the Authority
that they have
not been found guilty of an offence by producing the necessary
clearance certificates and so comply with section
23(1)(d); yet
they would still automatically be excluded by the provisions of
section 23(1)(a). Although the purpose relied
upon by the
respondents is worthy, it does not appear that the blanket
prohibition on refugees is tailored appropriately to achieve
that
purpose. By excluding all refugees whether or not they can comply
with the requirements of section 23(1)(d), the clear
message
underlying section 23(1)(a) is that whether refugees can prove
their trustworthiness or not, they may not be employed
as security
service providers.
It
is true that the interpretation of section 23(6) adopted by Kondile
AJ does ameliorate the effect of the discrimination caused
by
section 23(1)(a). In our view, however, it does not save section
23(1)(a) from inconsistency with section 9(3) of the Constitution.

A refugee who complies with the requirements of section 23(1)(b) –
(m) of the Act
39
should be entitled to registration without more. There seems to be
no reason, or none identified by the respondents, which would
require refugees to have to establish further good cause within the
meaning of section 23(6). In our view, correct as Kondile
AJ’s
interpretation may be, it is not sufficient to remove the
discriminatory impact caused by the direct effect of section
23(1)(a).
On
the other hand, the interpretation adopted by Kondile AJ will be of
great assistance to refugees who are not able to produce
the
necessary documentation required by the Act and the regulations.
There will be many refugees who experience this impediment.

Article 25 of the UN Convention appreciates this and provides that
refugees who cannot obtain assistance or documentation from
their
own countries should be assisted by the countries in which they
have sought refuge or by international organisations.
40
Accordingly a refugee who cannot produce the documents necessary
for registration but who can show good cause for registration
should nevertheless be registered by the Authority in terms of
section 23(6).
We
turn now to consider the impact of section 23(1)(a). Excluding
refugees from the right to work as private security providers
simply because they are refugees will inevitably foster a climate
of xenophobia which will be harmful to refugees and inconsistent
with the overall vision of our Constitution. As a group that is by
definition vulnerable, the impact of discrimination of this
sort
can be damaging in a significant way. In reaching this conclusion
it is important to bear in mind that it is not only the
social
stigma which may result from such discrimination, but also the
material impact that it may have on refugees. As noted
above,
refugees will ordinarily be reliant on finding work to provide
themselves with the means to maintain themselves and their
families. It is true, as Kondile AJ points out, that refugees are
permitted to work in other industries in South Africa,
41
but nevertheless there is evidence to suggest that the relatively
low-skilled work available in the private security industry
is a
significant source of employment for many refugees.
42
Their exclusion from this form of employment is therefore not
negligible and may well have a severe impact on the ability of
refugees to earn a livelihood in South Africa.
In
summary, refugees are a group vulnerable to discrimination. The
discrimination in this case is caused by a provision whose
purpose
is both legitimate and laudable, but whose terms are not narrowly
tailored to that purpose. Indeed, there are provisions
in the Act
other than section 23(1)(a) which could meet that purpose as
efficaciously. The potential discriminatory impact of
section
23(1)(a) in excluding refugees from working as security service
providers, both in terms of its material or financial
impact and
its social stigma are significant. Finally, South Africa’s
international obligations in terms of article 17 of
the UN
Convention require us to afford recognised refugees the most
favourable treatment accorded to foreign nationals. Section
23(1)(a) does not do that and in reaching the conclusion that it
constitutes unfair discrimination, we take into account South
Africa’s obligations in terms of article 17(1). We conclude in
the light of the foregoing that section 23(1)(a) is unfairly
discriminatory.
The
last issue that needs to be considered is whether the limitation of
section 23(1)(a) constitutes a justifiable limitation
of section
9(3) within the meaning of section 36(1) of the Constitution.
43
For it to be so, we would have to be satisfied that the purpose
and effect of section 23(1)(a) is proportionate to the infringement
of section 9(3). We cannot accept that it is. We accept that the
purpose of section 23 is to ensure that trustworthy and reliable
people are granted permission to work as security service
providers. As explained above, we are not persuaded that this
purpose
is significantly furthered by the blanket prohibition on
refugees (if it is furthered at all) and accordingly can give it
little
weight in the proportionality analysis. The infringement of
section 9(3) that section 23(1)(a) causes, is significant.
Accordingly
we conclude that the limitation of section 9(3) caused
by section 23(1)(a) is not justifiable within the meaning of
section 36(1)
of the Constitution.
In
the result, we would propose an order declaring section 23(1)(a) to
be inconsistent with section 9(3) of the Constitution to
the extent
that it omits after the words “permanent resident status” the
words “or refugee status in terms of the
Refugees Act 130 of
1998
”.
Langa
CJ and Van der Westhuizen J concur in the judgment of Mokgoro J and
O’Regan J.
SACHS J:
At
the heart of this case lies tension between the legal status
accorded by our law to refugees and certain objectives sought
to be
achieved by the law governing private security. Thus, while
section 27(f)
of the
Refugees Act
1
declares
in an unqualified way that accredited refugees may seek
employment,
2
section 23(1) of the Private Security Industry Regulation Act
3
(Private Security Act) states broadly that non-nationals who are
not permanent residents cannot enter the security industry.
4
In my view, the impasse is not intractable. Officials may use the
powers of exemption granted to them by section 23(6) of the
Private
Security Act
5
in a flexible and expansive way to ensure that refugees are kept
out of the industry only when objectively speaking it is fair
to do
so. By this means adequate weight can be given to the status
refugees enjoy, without the legitimate legislative concerns
about
the private security industry being ignored.
6
The
starting point for the officials is that when determining what
would constitute good cause for granting an exemption under
section
23(6), they are not acting as mere purveyors of administrative
largesse, nor are they simply called upon to manifest
an
appropriate degree of compassion for a vulnerable group that has
suffered considerable trauma. They are responding to claims
made
under international and domestic law, and their discretion is bound
by the need to take account of corresponding legal obligations.

These obligations strongly favour acknowledging the right of
refugees to seek employment in all spheres of economic activity.

Only clear and specific legislatively required reasons would
authorise any avenues being closed to them.
In
this regard the mere fact that they are non-nationals, which is
built into their status as refugees, could not on its own render
it
fair to keep them out. If there were no escape from the peremptory
terms of section 23(1), I would agree with Mokgoro J and
O’Regan
J that the provision is overbroad and that words should be read in
to entitle refugees to enter the security industry
in the same way
as permanent residents may do. I believe, however, that there are
substantive grounds of an objective character
that are pertinent to
the nature of the activity itself, that could render it fair to
exclude them.
Thus,
the absence of proof of a clean record, even though not
attributable to the fault of the applicants, could be highly
relevant
in regard to people who might be called upon to guard key
installations. At the same time the absence of proof could have
relatively
slight significance in respect of less sensitive tasks
such as looking after parked cars or keeping order at a sports
ground.
After five years, the applicant for unqualified access to
the security industry would be able to show a clean record for a
considerable
period, and, as a permanent resident, no longer be
excluded from engaging in the more sensitive areas of security
work. In these
circumstances a requirement of a five year period
to prove reliability for the most sensitive security tasks would
not impose
a bar that discriminated unfairly.
Accordingly,
while I accept the basic thrust of the eloquent and carefully
articulated judgment by Mokgoro J and O’Regan J,
I do not agree
that section 23(1) is constitutionally unsustainable. If it is
applied properly in conjunction with section 23(6),
it need not
have an overbroad effect. If the two sections are read together to
avoid incompatibility with the equality provisions
of the
Constitution, the problem ceases to be one of interpretation and
becomes one of application.
Thus,
I agree with Kondile AJ that section 23(1) of the Private Security
Act is not unconstitutional. In my view, the section
can be saved
from unconstitutionality if the powers granted under section 23(6)
are used in a way that acknowledges and gives
effective expression
to the special status enjoyed by accredited refugees. I agree too
with his finding that section 23(6) has
not been properly applied
in the present matter. Indeed, by tending to treat the applicants
as being indistinguishable from
the general class of non-nationals,
the officials have hopelessly tilted the balance against them. The
blanket negative approach
adopted, reversing the flexibility
formerly applied, is in flagrant disregard of the status granted to
refugees by international
and domestic law, an issue I will deal
with below. I therefore support the order Kondile AJ makes. The
applicants may reapply
and seek to establish good cause as required
by section 23(6). Their applications must then be considered by
the relevant officials
on the basis of properly prepared papers and
in the light of the principles enunciated by this Court.
In
this respect I wish to supplement the factors which Kondile AJ
identifies as being relevant to a showing of good cause for
exemption. In my view, special emphasis has to be given to four
considerations, all of which bear on the status given by law
to
refugees. Taken together, they strongly favour the notion that
being an accredited refugee in itself goes a long way to

establishing good cause for exemption.
The
first factor to take into account is the set of obligations
undertaken by South Africa in terms of international law. The
second is the significance of the provisions of the
Refugees Act.
The
third is the historical and social setting in which the rights
and entitlements of refugees have to be determined. And the fourth
is the constitutionally-mandated obligation to counteract
xenophobia.
Obligations
under international law
After
achieving democracy in 1994, South Africa for the first time
adhered to a number of international instruments dealing with
refugees.
7
Refugees are legally entitled to a standard of treatment in host
countries that encompasses both fundamental human rights and
refugee-specific rights. The former are enshrined in international
human rights law;
8
for the latter, the 1951 UN Convention Relating to the Status of
Refugees (the Convention), which predates most human rights
treaties, remains the main instrument and contains a relatively
detailed enumeration of rights. In some cases the Convention
requires state parties to extend to refugees the same standard of
treatment as for nationals; in others it obliges states to
accord
refugees as favourable a treatment as possible, and not less
favourable than that accorded to non-nationals generally
in the
same circumstances. In devising these two main yardsticks, those
who drafted the Convention clearly sought to ensure
that refugees
would not end up as pariahs at the margins of host societies.
9
Thus
the Convention obliges state parties to issue refugees with
identity papers and with documentation required for international
travel (the Convention travel document), prerequisites for many
people to the rebuilding of their social lives and re-establishing
means of livelihood. It forbids discrimination on the grounds of
race, religion, or country of origin. And, of special importance,
it protects refugees from being returned to the place where their
lives and freedoms would be at risk (the principle of
non-refoulement
). Taken together, these obligations
constitute a coherent and enforceable legal regime for refugees
that are markedly more favourable
than the discretionary regime
generally applicable to immigrants.
The
rationale for this regime and its binding element comes from the
very circumstances that caused the refugees to abandon their
homeland in the first place. In general terms, international
refugee law, and the asylum built upon that regime, are designed
to
extend protection to refugees in an international context so as to
substitute the national protection they have lost and cannot
claim
at home.
“
They have been forced out of
their country as a result of persecution or danger, and now must
receive legal protection and the opportunity
to realise the most
fulsome life possible in a foreign country.
. . . .
In recreating as closely as
possible the national protection lost or not claimable by a refugee,
the refugee regime seeks to put
the refugee in a situation as close
as possible to that of the national of the country of asylum.”
10
The
positive obligation to admit refugees, provide them with asylum and
treat them in accordance with specific standards, thus contrasts
sharply with the absence of a mandatory obligation to admit
foreigners to the state’s territory. It would accordingly be
inappropriate
for the state to act towards refugees in a manner that
is consonant with the general discretionary provisions of the regime
constructed
upon immigration, security, and other municipal
priorities, while ignoring the specific obligations that flow from
the refugee
regime.
11
It
is important therefore that the progressive legal construct for
refugees not be dominated by and held hostage to priorities
drawn
from immigration control or protection of the local labour force.
As
Okoth-Obbo has pointed out:
12
“
. . . the refugee protection
system has, and should have, a validity all of its own. It should
not be viewed as only the balance
from requirements established at
the level of immigration control and national penal and criminal law
enforcement. It is possible
to secure and even expand refugee space
without this being seen as a constriction of the ability of states
to pursue legitimate
influx control and law and order objectives.”
The
Convention devotes considerable attention to the question directly
raised in the present matter, namely, the obligation to
respect the
right of a refugee to engage in wage-earning employment. This
obligation requires acknowledgement of the right to
receive at
least the most favourable treatment accorded to nationals of a
foreign country in the same circumstances;
13
and in any case not to be subjected to restrictive measures for the
protection of the national labour market after three years
of
residence.
14
Furthermore, the Contracting States are expressly required to give
sympathetic consideration to assimilating the rights of all
refugees with regard to wage-earning employment to those of
nationals.
15
These provisions should not be read in a begrudging, technical way
so as to limit work opportunities and to guarantee only the
bare
minimum. On the contrary, they should be viewed conjunctively and
purposively as being designed to encourage self-reliance
on the
part of refugees and to promote the possibility of their being able
to lead valuable, dignified and independent lives;
the quality of
asylum, like the quality of mercy, should not be strained.
Refugees
Act
16
The
preamble to the
Refugees Act notes that
:
“
. . . the Republic of South
Africa has acceded to the 1951 Convention Relating to the Status of
Refugees, the 1967 Protocol Relating
to the Status of Refugees and
the 1969 Organization of African Unity Convention Governing the
Specific Aspects of Refugee Problems
in Africa as well as other
human rights instruments, and has in so doing, assumed certain
obligations to receive and treat in its
territory refugees in
accordance with the standards and principles established in
international law.”
Section
6
goes on to state that the Act must be applied with due regard to
the above-mentioned legal instruments as well as the Universal
Declaration of Human Rights and any other international agreement to
which the Republic is a party.
17
The statutory matrix
18
in which the right to seek employment is embedded is notably
facilitative and rights-based. A refugee is: accorded full legal
protection, including the rights set out in the Bill of Rights;
entitled to identity and travel status documents; given an
unrestricted
right to seek employment; and able to apply for
permanent residence after five years continuous residence. Taken
together, these
provisions reflect acknowledgment by the legislature
of the need to create a progressive and humane refugee regime in
keeping with
South Africa’s international legal obligations. It
is in this manifestly broad and supportive legislative setting that
any question
about the right to seek employment must be resolved.
The social and historical context
The
context which led to the adoption of the
Refugees Act was
set out
by the then Deputy Minister of Home Affairs
19
in the following striking terms:
“
Because of our history and
our struggle we have increasingly had to bear the mantle of
champions of the oppressed. Furthermore,
because of the political
and economic stability in our country, and the fact that thousands
of us have experienced the pain of
destitution and homelessness,
South Africa is in a unique position to chart a humane policy as far
as refugees are concerned.
This has meant that South Africa has had
to put into practice the concept of international solidarity and
burden sharing, allowing
the victims of international conflicts and
human violations to seek a safe haven within our borders. Although
in comparison we
host a relatively small number of refugees, we are
hoping that we could lead the way in the development of progressive
refugee
policies. . . . South Africa had no experience of hosting
refugees – instead we produced refugees. South African society
has
not been sufficiently educated on issues of refugees, the causes
of refugees and particularly the government’s responsibilities
towards refugees.”
20
These
factors provide the stark background against which determinations
must be made of what is “good cause” in relation to
access of
refugees to employment in the security industry. It is not all
that long ago that, during the late period of minority
racist rule,
tens of thousands of South Africans fled across our borders into
neighbouring states. Few had documents or anything
more than a
change of clothing, if even that. They were well received and
sheltered, and treated with humanity by many African
states, who
frequently paid a heavy price in lives and blood for fulfilling
their international responsibilities.
21
Thousands more South Africans were given shelter and enabled to
lead productive lives in countries right across the globe. Many
have returned and now occupy important positions in our country.
These moral debts are paid off not through direct reciprocity,
but
by means of voluntary acceptance of international treaty
obligations.
The
preamble to the Constitution speaks of building “a united and
democratic South Africa able to take its rightful place as
a
sovereign state in the family of nations.” This acknowledges two
things: the international support, based upon the principles
of the
Universal Declaration of Human Rights and the United Nations, that
enabled our country to overcome division and achieve
constitutional
democracy, and the humanitarian obligations that go with achieving
a dignified place as a democratic member of
the international
community.
Xenophobia
The
Braamfontein Declaration has pointed out that
“
[x]enophobia is the deep
dislike of non-nationals by nationals of a recipient state. Its
manifestation is a violation of human
rights. South Africa needs to
send out a strong message that an irrational prejudice and hostility
towards non-nationals is not
acceptable under any circumstances.”
22
This
prejudice is strong in South Africa.
23
It strikes at the heart of our Bill of Rights. Special care
accordingly needs to be taken to prevent it from even unconsciously
tainting the manner in which laws are interpreted and applied. If
refugees are treated as intrinsically untrustworthy, with their
capacity to perform honestly and reliably being placed presumptively
in doubt, then xenophobia is given a boost and constitutional
values
are undermined. As the then Deputy Minister of Home Affairs pointed
out at a conference on forced migration,
24
because of the historic isolation of South Africa, our people’s
perceptions are unfortunately insular, thus making them very
susceptible to xenophobia. She observed that this situation is
further exacerbated by the fact that there is often a problematic
confusion in the minds of people between foreigners who are here
illegally and refugees. This confusion is created because these
two
groups often occupy the lowest economic stratum in our society. She
observed that they are invariably black and do not speak
any local
languages.
25
The
constitutional response to xenophobia need not, of course, involve
exaggerated xenophilia. Just as refugees should be protected
from
irrational prejudice, so they should not be able to lay claim to
irrational privilege. The law – in this case section
23(6) –
must be applied in a manner that is fair, objective, appropriately
focused and in keeping with the letter and the spirit
of our
international and national legal obligations. Exercises of power
that purport to have a neutral foundation but track
stereotypes are
often seen as flowing from and reinforcing negative
presuppositions. Indeed, the routinised way in which power
is
exercised can readily become entangled in the public mind with
existing prejudicial assumptions, reinforcing prejudice and
establishing a downward spiral of disempowerment. One of the
purposes of refugee law is precisely to overcome the experience
of
trauma and displacement and make the refugee feel at home and
welcome. Disproportionate and uncalled-for adverse treatment
would
defeat that objective and induce an unacceptable and avoidable
experience of alienation and helplessness. It would be
most
unfortunate if the left hand of government, that supervises the
security industry, took away what the right hand of government,
that accords to accredited refugees a special status, gives.
Conclusion
The
culture of providing hospitality to bereft strangers seeking a
fresh and secure life for themselves is not something new in
our
country. As Professor Hammond-Tooke has pointed out,
26
in traditional society−
“
. . . the hospitality
universally enjoined towards strangers, [is] captured in the Xhosa
proverb
Unyawo alunompumlo
(‘The foot has no nose’).
Strangers, being isolated from their kin, and thus defenceless, were
particularly under the protection
of the chief and were accorded
special privileges.”
Today
the concept of human interdependence and burden-sharing in relation
to catastrophe is associated with the spirit of ubuntu-botho.
As
this Court said in
Port Elizabeth Municipality v Various
Occupiers
:
27
“
The Constitution and PIE
confirm that we are not islands unto ourselves. The spirit of
ubuntu
, part of the deep cultural heritage of the majority of
the population, suffuses the whole constitutional order. It
combines individual
rights with a communitarian philosophy. It is a
unifying motif of the Bill of Rights, which is nothing if not a
structured, institutionalised
and operational declaration in our
evolving new society of the need for human interdependence, respect
and concern.” (footnote
omitted)
These
words were used in relation to homeless South Africans. The
reminder that we are not islands unto ourselves, however, must
be
applied to our relationship with the rest of the continent.
The
applicants in this matter all come from African countries. They
have been granted refugee status because instability and
bloodshed
in their home countries has rendered life there intolerable. Their
states of origin have either set out to persecute
them or else been
unable to provide them with the protection that citizens should be
able to demand from their government. Two
examples illustrate
this. The tenth applicant, whose father was a school-teacher,
states that:
“
It was alleged by the
[Rwandan Patriotic Front] that all Hutu’s were involved in the
genocide, which occurred in my country during
1994. During the
period 1994 to 1998 all my husband’s family members were killed
and two of my sisters, one of my brothers and
a host of other family
members were killed”.
28
The
twelfth applicant tells a similarly tragic story:
“
I have been a resident and
citizen of the Democratic Republic of the Congo. . . . My father was
a king in Bukavu, South Kivu. He
was killed by rebel soldiers who
were in the process of fighting a civil war against the government
on or about April 2001. At
the time of my father’s death I was a
student. The rebel soldiers killed my father because he refused to
sign a proposition
document.”
29
One
was the child of a school teacher, the other of a king. Both were
students when forced to flee to South Africa. They do not
seek
hand-outs from the state, but simply the opportunity to work and
earn a living. They have organised themselves into groups
and
received training as security guards. This capacitates them to do
relatively humble tasks such as guarding parked cars or
patrolling
shopping-malls.
I
see no reason why access to employment in the security industry by
persons in their situation should not be permitted in relation
to
sectors such as these, where no high security interests are at
stake. To bar them would be to discriminate against them unfairly.
At the same time I would not regard it as unfair to keep them from
guarding installations and persons where particularly high
security
considerations come into play.
The
greater power of officials to grant unqualified exemptions to enter
the industry should not exclude a lesser power to grant
a
restricted exemption, the only proviso being that the basis for the
qualification be fair and reasonable in the circumstances.
Indeed,
it would be dangerous and self defeating for the public
administration to function on the basis that if officials cannot
grant everything an applicant might seek, they cannot grant
anything at all. The converse should also apply: officials should
not be required to accede to everything refugees may ask for on the
basis that in fairness the applicants are entitled at least
to
something. The principle of ‘all-or-nothing’ is frequently
dangerous in administrative law. It disregards the notion
of
proportionality that lies at the heart of fairness of treatment.
Experience warns that because cautious administrators might
be
fearful of being regarded as unduly generous, in practice this
principle will usually lead to nothing.
In
summary: the applicants were correct in their initial approach to
court when they challenged the criteria used by officials
who had
excluded them in blanket fashion from the security industry, in
some cases withdrawing permits already granted. For
the reasons I
have given, however, I believe that the applicants’ subsequent
challenge to the constitutionality of section
23(1) was
over-ambitious. The mere fact of being refugees does not entitle
them to be admitted as of right to all spheres of
the private
security industry. The key factor is that being an accredited
refugee goes a long way in itself to establish that
there is “good
cause” for exempting an applicant from the prohibition against
non-nationals and non-permanent residents entering
the security
industry.
It
is to be hoped that, bearing in mind the special status that
accredited refugees enjoy under our law, the clarifications given
by this Court will assist both refugees and officials in
streamlining the processes involved, engaging with each other in a

mutually respectful manner, and achieving outcomes that are
objectively grounded, fair and reasonable.
For the Applicants: Advocate Paul Kennedy SC, Advocate Anton Katz
and Advocate Donovan Baguley instructed by Lawyers for Human
Rights.
For the First and Third Respondents: Advocate Wim Trengove SC and
Advocate SK Hassim instructed by Savage, Jooste & Adams.
For the Second and Fourth Respondents: Advocate Wim Trengove SC and
Advocate SK Hassim instructed by the State Attorney, Johannesburg.
1
Section 1
of the
Refugees Act defines
a refugee as “any person who
has been granted asylum in terms of this Act.”
2
The relevant portions of section 30 of the Security Act provide:
“
(1) Any person aggrieved by─
the refusal by the Authority to grant his or her
application for registration as a security service provider;
the suspension or withdrawal of his or her
registration as a security service provider by the Authority; or
a finding against him or her, of improper conduct in
terms of this Act, or the punishment imposed in consequence of the
finding,
may within a period of 60 days after service of the
notification of the relevant decision contemplated in paragraph (a),
(b) or
(c), appeal to an appeal committee.
An appeal committee contemplated in subsection (1) is
appointed by the Minister for every appeal and consists of─
a person with not less than five years’ experience
as an attorney, advocate or magistrate, who is the presiding
officer; and
may also include
two other persons if it is considered appropriate by
the Minister.
(3) Every person serving as a member of an appeal
committee must be independent from the Authority and may have no
personal interest
in the private security industry or in the affairs
of an appellant.”
3
Section 5(1) of the Security Act.
4
Section 11 provides that:
“
If the Council or the Authority cannot or does not
maintain an acceptable standard in the fulfilment of one or more of
its functions
in terms of this Act or the Levies Act, the Minister
may intervene by taking any appropriate step to ensure proper
fulfilment of
that function, including─
issuing a directive to the Council or the Authority,
describing the extent of the failure and stating the steps required
to remedy
the situation;
assuming responsibility for the relevant function or
duty to the extent necessary─
to maintain an acceptable standard; or
to prevent the Council, the Authority or any person
appointed by the Council or the Authority, from taking any action
which
is prejudicial to the objects of the Authority; and
(c) dissolving the Council and appointing a new
Council.”
5
The Schedule lists the following offences: High treason; Sedition;
Sabotage; Terrorism; Public violence; Arson; Malicious damage
to
property; Intimidation; Rape; Murder; Robbery; Culpable homicide
involving the use of a firearm or any form of intentional violence;
Kidnapping; Assault with the intention to cause serious bodily harm;
Indecent assault; Child stealing; Fraud; Forgery or uttering
of a
forged document knowing it to have been forged; Breaking or entering
any premises, whether in terms of common or statutory
law, with the
intention to commit an offence; Theft, whether in terms of common
law or statutory law; Receiving stolen property
knowing it to have
been stolen; Extortion; Defeating the ends of justice; Perjury,
whether in terms of common law or statutory
law; An offence referred
to in Part 1 to 4, or section 17, 20 or 21 (in so far as it relates
to the aforementioned offences) of
Chapter 2 of the
Prevention and
Combating of Corrupt Activities Act 12 of 2004
; An offence involving
the illicit dealing in dependence-producing substances; Any offence
in terms of statutory law involving an
element of dishonesty; Any
offence in terms of the
Domestic Violence Act 116 of 1998
; Any
offence in terms of the Explosives Act 26 of 1956; Any offence in
terms of the Regulation of Foreign Military Assistance Act
15 of
1998; Any offence in terms of legislation pertaining to the control
over the possession and use of firearms and ammunition;
Any offence
in terms of the Interception and Monitoring Prohibition Act 127 of
1992; Any offence in terms of the
Intelligence Services Act 38 of
1994
; Any offence in terms of the Protection of Information Act 84
of 1982;
Crimen injuria
; Any offence in terms of statutory
law involving cruelty to an animal; Any offence in terms of any law
relating to illicit dealing
in or possession of precious metals or
precious stones; Any offence in terms of statutory law punishable by
a period of imprisonment
exceeding two years without the option of a
fine and any conspiracy, incitement or attempt to commit any of the
above offences.
6
Section 23(5) provides:
“
Despite
any provision to the contrary, a person in the permanent employ of
the Service, the Directorate of Special Operations, the
National
Intelligence Agency, the South African Secret Service, the South
African National Defence Force or the Department of Correctional
Services may not be registered as a security service provider whilst
so employed.”
7
Section 21 provides:
“
(1) An application for registration as a security
service provider must be made to the Authority in the prescribed
manner and must
be accompanied by─
a clear and complete set of fingerprints taken in the
prescribed manner─
of the applicant, if the applicant is a natural
person;
if the applicant is a security business, of every
natural person performing executive or managing functions in
respect of such
security business;
of each director, if the applicant is a company;
of each member, if the applicant is a close
corporation;
of each partner, if the applicant is a partnership;
of each trustee, if the applicant is a business
trust; and
of each administrator or person in control, if the
applicant is a foundation.
the application fee as determined by the Authority;
and
any other document or certificate required in terms of
this Act or by the Authority to be submitted with an application
for registration.
Any person applying in terms of subsection (1) for
registration as a security service provider, must furnish such
additional particulars
in connection with the application as the
Authority may determine.
If
the Authority is of the opinion that the provisions of this Act
have been complied with in respect of an application referred
to in
subsection (1), it may grant such application and register the
applicant as a security service provider.”
8
Section 26(4)(c) provides that:
“
The Authority may, subject to section 5(3), withdraw
the registration of a security service provider by written notice
served on
the security service provider if the registration was
granted in error or on the basis of incorrect information furnished
by any
person, including any department or organ of State, to the
Authority”.
9
Shabani Midemis Rutimba and Fourteen Others v The Director: The
Private Security Industry Regulatory Authority and Others
TPD
(per Bosielo J), case no 35986/2003, 26 May 2006, unreported at para
7.
10
The relevant portions of Rule 19 of the Constitutional Court Rules:
“
(1) The procedure set out in this rule shall be
followed in an application for leave to appeal to the Court where a
decision on
a constitutional matter, other than an order of
constitutional invalidity under section 172(2)(a) of the
Constitution, has been
given by any court including the Supreme
Court of Appeal, and irrespective of whether the President has
refused leave or special
leave to appeal.
(2) A litigant who is aggrieved by the decision of a
court and who wishes to appeal against it directly to the Court on a
constitutional
matter shall, within 15 days of the order against
which the appeal is sought to be brought and after giving notice to
the other
party or parties concerned, lodge with the Registrar an
application for leave to appeal: Provided that where the President
has
refused leave to appeal the period prescribed in this rule shall
run from the date of the order refusing leave.”
11
See for example
Minister of Public Works and Others v Kyalami
Ridge Environmental Association and Another (Mukhwevho intervening)
[2001] ZACC 19
;
2001 (3) SA 1151
(CC);
2001 (7) BCLR 652
(CC) at para 28.
12
See for example
Member of the Executive
Council for Development Planning and Local Government, Gauteng v
Democratic Party and Others
[1998] ZACC 9
;
1998 (4)
SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para 32.
13
Id.
14
Id at para 29.
15
Hathaway (ed)
Reconceiving International Refugee Law
(Martinus Nijhoff Publishers, London 1997) at 8.
16
Along with civil war, state oppression, ethnicity, revolution and
border disputes.
17
Hathaway above n 15 at 90.
18
Harksen v Lane NO and Others
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at para 54;
1997 (11) BCLR 1489
(CC) at para 53.
19
Prinsloo v Van der Linde
and
Another
[1997] ZACC 5
;
1997 (3) SA 1012
(CC);
1997 (6) BCLR 759
(CC).
20
Id at para 25.
21
Preamble to the Act.
22
Probe Security CC v The Security Officers’ Board and Another
WLD (per Satchwell J), case no 98/13943, 17 August 1998, unreported.
23
Id at 20 - 21.
24
Private Security Industry Regulatory Authority and Others v
Association of Independent Contractors and Another
2005 (5) SA
416
(SCA).
25
Id at para 1.
26
Prinsloo
above n 19 at para 25.
27
Brink v Kitshoff NO
[1996] ZACC 9
;
1996 (4) SA 197
(CC);
1996 (6) BCLR 752
(CC) at para 42;
Harksen
above n 18 at para 49 SALR; at para
48 BCLR.
28
Harksen
above n 18 at paras 46 – 47 SALR; at paras 45 –
46 BCLR.
29
See sections 10 to 22 of the Immigration Act 13 of 2002
(“Immigration Act”).
30
Lawyers for Human Rights and Another v
Minister of Home Affairs and Another
[2004] ZACC 12
;
2004 (4) SA 125
(CC);
2004 (7) BCLR 775
(CC) at para 27.
31
Section 22 of the Constitution.
32
Ex Parte Chairperson of the Constitutional Assembly: In Re
Certification of the Amended Text of the Constitution of the
Republic
of South Africa,
[1996] ZACC 24
;
1996
1997 (2) SA 97
(CC);
1997 (1)
BCLR 1
(CC).
33
Id at para 17.
34
Id at para 18.
35
Id at para 21.
36
Minister of Home Affairs and Others v Watchenuka and Another
2004 (4) SA 326
(SCA);
2004 (2) BCLR 120
(SCA).
37
Id at paras 29 - 30.
38
Section 1(2) of the Security Act provides that:
“
The
Minister may, after consultation with the Authority and as long as
it does not prejudice the achievement of the objects of this
Act, by
notice in the
Gazette
, exempt any service, activity or
practice or any equipment or any person or entity from any or all
the provisions of this Act.”
39
In terms of
section 27(d)
of the
Immigration Act:
“
The Director-General may issue a permanent residence
permit to a foreigner of good and sound character who is a refugee
referred
to in section 27(c) of the Refugees Act, 1998 (Act No. 130
of 1998), subject to any prescribed requirement”.
Section
27(c)
of the
Refugees Act in
turn provides that:
“
A refugee is entitled to apply for an immigration
permit in terms of the Aliens Control Act, 1991, after five years’
continuous
residence in the Republic from the date on which he or
she was granted asylum, if the Standing Committee certifies that he
or she
will remain a refugee indefinitely”.
40
See for example
Government of the Republic of South Africa and
Others v Grootboom and Others
2001 (1) SA 46
(CC); 2000 BCLR
(11) 1169 (CC) at paras 23 and 83.
41
Affordable Medicines Trust and Others v Minister of Health and
Others
[2005] ZACC 3
;
2006
(3) SA 247
(CC);
2005 (6) BCLR 529
(CC).
42
Id at para 77.
43
Woolman “Limitation” in Chaskalson et al (eds)
Constitutional
Law of South Africa
1 ed Revision Service 2, 1998 (Juta, Cape
Town 1996).
44
Id at 12-2 – 12-3.
45
Larbi-Odam and Others v Member of the Executive Council for
Education (North-West Province) and Another
[1997] ZACC 16
;
1998 (1) SA 745
(CC);
1997 (12) BCLR 1655
(CC).
46
Id at paras 24 - 25.
47
Khosa and Others v Minister of Social Development and Others;
Mahlaule and Others v Minister of Social Development and Others
[2004] ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC).
48
Watchenuka
above n 36.
49
Law Society of British Columbia et al. v Andrews et al
.
(1989) 56 DLR (4d) 1.
50
Id at 33.
51
Id at 6.
52
See
section 26
of the
Immigration Act.
53
Which will be collectively referred to as the
decisions.
54
Section 7(2)(a)
provides that “[s]ubject to
paragraph (c), no court or tribunal shall review an administrative
action in terms of this Act unless
any internal remedy provided for
in any other law has first been exhausted.”
55
Section 7(2)(c) provides that:
“
A court or tribunal may, in exceptional
circumstances and on application by the person concerned, exempt
such person from the obligation
to exhaust any internal remedy if
the court or tribunal deems it in the interest of justice.”
56
Primary
among them being alleged irrationality
and an alleged infringement of equality.
57
Prof Burns
Administrative Law under the 1996 Constitution
2
ed (Butterworths, Durban 2003) at 115.
Compare
in regard to judicial discretion,
Trevor
B Giddey NO v JC Barnard and Partners
(per O’Regan J), case no CCT65/05, 1 September 2006, as yet
unreported at para 19, fn 16 and the authorities cited therein.
58
Burns id.
59
See section 1(2) of the Security Act above n 38.
60
As has been mentioned previously, these applications to the Appeal
Committee were unsuccessful.
1
Section 23(1)(b) of the Act.
2
Section 23(1)(c) of the Act.
3
The offences listed in the Schedule to the Act include high treason,
sedition, public violence, arson, malicious damage to property,
rape, murder, robbery, culpable homicide involving the use of a
weapon, kidnapping, assault with intention to cause serious bodily
harm, and a variety of other offences.
4
Section 23(1)(d) of the Act.
5
Section 23(1)(f) of the Act.
6
Section 23(1)(g) of the Act.
7
Regulation 2(6) of Regulations made under the Private Security
Industry Regulation Act, 56 of 2001 dated 14 February 2002 published
in GN 23120, Regulation Gazette 7279.
8
Section 1 of the Act provides that a security service provider means
“a person who renders a security service to another for
a
remuneration, reward, fee or benefit and includes such a person who
is not registered as required in terms of this Act.”
9
Section 20(1)(a) of the Act.
10
Section 23(4)(a) of the Act.
11
Section 23(4)(b) of the Act.
12
Section 23(6) of the Act provides that:
“
Despite
the provisions of subsections (1) and (2), the Authority may on good
cause shown and on grounds which are not in conflict
with the
purpose of this Act and the objects of the Authority, register any
applicant as a security service provider.”
13
Kondile AJ at paras 85 - 86.
14
Section 30(1)(a) of the Act.
15
Section 30(3) of the Act.
16
Second, third and fourth applicants.
17
Seventh, eighth, ninth, tenth and eleventh applicants.
18
Section 9(3) provides that:
“
The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race,
gender, sex,
pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief,
culture, language and birth.”
19
Section 25(1)
of the
Immigration Act 13 of 2002
provides that:
“
The holder of a permanent residence permit has all
the rights, privileges, duties and obligations of a citizen, save
for those rights,
privileges, duties and obligations of a citizen,
save for those rights, privileges, duties and obligations which a
law or the Constitution
explicitly ascribes to citizenship.”
See
also Larbi-Odam v MEC for
Education (North-West Province) and Another
1998 (1) SA 745
(CC); 1997 (12) BCLR 1655 (CC).
20
Section 27(b)
of the
Refugees Act 130 of 1998
, cited below at para
103.
21
The text of subsection (a) is based broadly on the provisions of
article 1A(2) of the United Nations Geneva Convention Relating
to
the Status of Refugees (1951) (the UN Convention); and the text of
subsection (b) is based broadly on the provisions of article
1(2) of
the Organisation of African Unity Convention Governing the Specific
Aspects of Refugee Problems in Africa (the OAU Convention).
The
successor organisation to the OAU is the African Union. To avoid
confusion we refer to the Convention as the OAU Convention.
22
This provision is broadly based on article 1(5) of the OAU
Convention.
23
See chapter 3 of the
Refugees Act.
24
See
definition of “refugee” in
section 1
of the
Refugees Act.
25
The
1951 Convention Relating to the Status of Refugees. South
Africa acceded to this Convention on 12 January 1996. The 1967
Protocol
Relating to the Status of Refugees was ratified on the same
day. It acceded to the OAU Convention on 15 December 1995.
26
Id.
27
See note 20 above
28
Section 39(1)(b) of the Constitution provides that:
“
When interpreting the Bill of Rights, a court,
tribunal or forum –
. . . .
(b)
must consider international law”.
29
The text of section 27 is cited in paragraph 103 above.
30
Id.
31
See
Government of the Republic of South Africa and Others v
Grootboom and Others
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at paras 23 and 83;
Khosa and Others v Minister of Social
Development and Others; Mahlaule and Others v Minister of Social
Development and Others
[2004] ZACC 11
;
2004 (6) SA 505
(CC);
2004 (6) BCLR 569
(CC) at para 40 and
Kaunda and Others v President of the Republic
of South Africa and Others
2005 (4) SA 235
(CC);
2004 (10) BCLR
1009
(CC) at para 274.
32
[1997] ZACC 12
;
1998 (1) SA 300
(CC) at para 47;
1997 (11) BCLR 1489
(CC) at para
46, relying on
Prinsloo v Van der Linde and Another
[1997] ZACC 5
;
1997 (3)
SA 1012
(CC);
1997 (6) BCLR 759
(CC) at para 31. Although both
Harksen
and
Prinsloo
were dealing with the interim
Constitution, this Court has held that there are no material
differences between section 8 of the
interim Constitution and
section 9 of the 1996 Constitution for the purposes of this
analysis.
National Coalition for Gay and Lesbian Equality and
Another v Minister of Justice and Others
1999 (1) SA 6
(CC);
1998 (12) BCLR 1517
(CC) at paras 15-19.
33
Id.
34
Article 33 of the UN Convention provides that:
“
1. No Contracting State shall expel or return
(‘refouler’) a refugee in any manner whatsoever to the frontiers
of territories
where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a
particular social
group or political opinion.
2. The benefit of the present provision may not,
however, be claimed by a refugee whom there are reasonable grounds
for regarding
as a danger to the security of the country in which he
is, or who, having been convicted by a final judgment of a
particularly
serious crime, constitutes a danger to the community of
that country.”
Section 28
of the
Refugees Act provides
that:
“
(1) Subject to
section 2
, a refugee may be removed
from the Republic on grounds of national security or public order.
(2) A removal under subsection (1) may only be ordered
by the Minister with due regard for the rights set out in section 33
of the
Constitution and the rights of the refugee in terms of
international law.
(3) If an order is made under this section for the
removal from the Republic of a refugee, any dependant of such
refugee who has
not been granted asylum, may be included in such an
order and removed from the Republic if such dependant has been
afforded a reasonable
opportunity to apply for asylum but has failed
to do so or if his or her application for asylum has been rejected.
(4) Any refugee ordered to be removed under this
section may be detained pending his or her removal from the
Republic.
(5) Any order made under this section must afford
reasonable time to the refugee concerned to obtain approval from any
country of
his or her own choice, for his or her removal to that
country.”
Section 34
of the
Refugees Act provides
that “[a] refugee must abide by the laws of the Republic.”
35
See note 31 above at para 52 SALR; at para
51 BCLR.
36
Id at para 52(b) SALR; at para 51(b) BCLR.
37
President of the Republic of South Africa and Another v
Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 41.
38
See note 3 above.
39
See para 92 above.
40
Article 25 of the UN Convention provides that:
“
1. When the exercise of a right by a refugee would
normally require the assistance of authorities of a foreign country
to whom he
[or she] cannot have recourse, the Contracting States in
whose territory he [or she] is residing shall arrange that such
assistance
be afforded to him [or her] by their own authorities or
by an international authority.
2. The authority or authorities mentioned in paragraph
1 shall deliver or cause to be delivered under their supervision to
refugees
such documents or certifications as would normally be
delivered to aliens by or through their national authorities.
3. Documents or certifications so delivered shall stand
in the stead of the official instruments delivered to aliens by or
through
their national authorities, and shall be given credence in
the absence of proof to the contrary.
4. Subject to such exceptional treatment as may be
granted to indigent persons, fees may be charged for the services
rendered herein,
but such fees shall be moderate and commensurate
with those charged to nationals for similar services.
5.
The provisions of this article shall be without prejudice to
articles 27 and 28.”
41
Kondile AJ’s judgment at para 48.
Section 27(f)
of
Refugees Act
provides
that “a refugee is entitled to seek employment.”
42
According to research conducted by the Community Agency for Social
Enquiry (CASE) from 2001 to 2003 (the National Refugee Baseline
Survey 2003) which formed part of the record, the occupations of
security guard and car watchers are the second most sought after
amongst all employed asylum seekers and refugees.
43
42
Section 36(1) of the Constitution provides as
follows:
“
The rights in the Bill of Rights may be limited only
in terms of law of general application to the extent that the
limitation is
reasonable and justifiable in an open and democratic
society based on human dignity, equality and freedom, taking into
account
all relevant factors, including –
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
1
Act 130 of 1998.
2
It states that:
“
A refugee−
a) is entitled to a formal written recognition of
refugee status in the prescribed form;
b) enjoys full legal protection, which includes the
rights set out in Chapter 2 of the Constitution and the right to
remain in the
Republic in accordance with the provisions of this
Act;
c) is entitled to apply for an immigration permit in
terms of the Aliens Control Act, 1991, after five years’
continuous residence
in the Republic from the date on which he or
she was granted asylum, if the Standing Committee certifies that he
or she will remain
a refugee indefinitely;
d) is entitled to an identity document referred to in
section 30;
e) is entitled to a South African travel document on
application as contemplated in section 31;
f) is entitled to seek employment; and
g)
is entitled to the same basic health services and basic primary
education which the inhabitants of the Republic receive from
time to
time.” (Emphasis added)
3
Act 56 of 2001.
4
Section 23(1) provides:
“
Any natural person applying for registration in
terms of section 21(1), may be registered as a security service
provider if the
applicant is a fit and proper person to render
security service, and–
is a citizen of or has permanent resident status in
South Africa”.
5
Section 23(6) reads:
“
Despite
the provisions of subsections (1) and (2), the Authority may on good
cause shown and on grounds which are not in conflict
with the
purpose of this Act and the objects of the Authority, register any
applicant as a security service provider.”
6
The preamble to the Security Act points to the need to:
“
. . . achieve and maintain a trustworthy and
legitimate private security industry which acts in terms of the
principles contained
in the Constitution and other applicable law,
and is capable of ensuring that there is greater safety and security
in the country”.
Section 1 defines “security service” as meaning one
or more of the following services or activities:
“
. . . .
c) providing a reactive or response service in
connection with the safeguarding of a person or property in any
manner;
d) providing a service aimed at
ensuring order and safety on the premises used for sporting,
recreational, entertainment or similar
purposes”.
7
It is commonly assumed that South Africa only began receiving
refugees in significant numbers from 1994. This is a fallacy. The
history of refugee movement into the country can be tracked back to
World War I and World War II. At that time, the country had
not
acceded to any international conventions due to political demands.
Indeed the dismantling of the apartheid regime was accompanied
by a
new wave of immigration – asylum seekers mainly from African
countries. The difference between the past and the present
flows of
asylum seekers is that South Africa is now a signatory to
international instruments that bind the government to certain
obligations. See Majodina “Introduction: The Challenges of Forced
Migration in Southern Africa” in Majodina (ed)
The Challenge of
Forced Migration in Southern Africa
(Africa Institute of South
Africa, Pretoria 2001) at viii.
8
These include (but are not limited to) the rights
protected under: the International Covenant on Civil and Political
Rights (ICCPR);
the International Covenant on Economic, Social and
Cultural Rights (ICESCR); the Convention on the Elimination of All
Forms of
Discrimination Against Women (CEDAW); the Convention on the
Rights of the Child (CRC) and the African Charter on Human and
People’s
Rights. It should be noted that most of these treaties
establish mechanisms for reporting and comments on the extent to
which
states fulfill their treaty obligations. In the case of the
Refugee Convention, which is dealt with below, no such treaty body
exists, which makes enforcement through national legislation
particularly important.
9
Verdirame and Harrell-Bond with a foreword by Justice Albie Sachs
Rights in Exile
:
Janus-Faced Humanitarianism
(Berghahn
Books, New York 2005) at xiv.
10
Okoth-Obbo “
The Refugee Experience and
Policy Issues in Southern Africa”
in Majodina (ed)
above n 7
at 47.
11
Id at 48.
12
Id at 54-55.
13
Article 17(1) of the Convention. Verdirame and Harrell-Bond write
that the right to work is defined in the ICESCR as the right
“of
everyone to the opportunity to gain his living by work which he
freely chooses or accepts” (art 6). To achieve the full
realisation of his right, states are also required to provide
“technical and vocational guidance and training programmes” and
to adopt “policies and techniques to achieve steady economic,
social, and cultural development and full and productive employment
under conditions safeguarding fundamental political and economic
freedoms to the individual.” This does not mean that individuals
have an automatic right to paid employment, but, at the very least,
that they should not be denied the opportunity to seek it.
See
above n 9 at 215. Treatment equal to the most favourable treatment
given to non-nationals is a minimum requirement, the absolute
base-line. The objective envisaged by the Convention is, where
possible, something more. It is that Contracting States use their
best endeavours consistently with their laws and constitutions to
secure the settlement and the enjoyment of productive and dignified
lives of refugees in their territory.
14
Article 17(2)(a) of the Convention.
15
Article 17(3) of the Convention. In the same spirit, Article 18
which deals with self-employment requires that:
“
The Contracting States shall accord to a refugee
lawfully in their territory
treatment as favourable as possible
and, in any event, not less favourable than that accorded to aliens
generally in the same circumstances, as regards the right to
engage
on his own account in agriculture, industry, handicrafts and
commerce and to establish commercial and industrial companies.”
(My emphasis)
Similarly, Article 19(1), concerning the liberal
professions provides that:
“
Each Contracting State shall accord to refugees
lawfully staying in their territory who hold diplomas recognized by
the competent
authorities of that State, and who are desirous of
practising a liberal profession,
treatment as favourable as
possible
and, in any event, not less favourable than that
accorded to aliens generally in the same circumstances.” (My
emphasis)
16
Above n 1.
17
Section 6 of the Act further states:
“
Interpretation, application and administration of
the Act.–(1) This Act must be interpreted and applied with due
regard to–
the Convention Relating to the Status of Refugees (UN,
1951);
the Protocol Relating to the Status of Refugees (UN,
1967);
the OAU Convention Governing the Specific Aspects of
Refugee Problems in Africa (OAU, 1969)
the Universal Declaration of Human Rights (UN, 1948);
and
any
convention or international agreement to which the Republic is or
becomes a party.”
18
Above n 2.
19
Lindiwe N Sisulu.
20
Sisulu “Meeting the Challenges of Forced Migration” in Majodina
(ed) above n 7 at 5-6.
21
Matlou “The Creation of Refugee Law: The South African Experience”
in Majodina (ed) above n 7 at 122-123 states that:
“
[F]or years states in the region had to contend with
South Africa’s destabilisation policies, known as the ‘total
strategy’.
This deliberately placed constraints on regional
support for the anti-apartheid struggle, weakening South Africa’s
neighbours
and forcing them to deport refugees elsewhere or to South
Africa. From 1980-1985, it is estimated that South Africa created
about
281 500 refugees in the region, whilst thousands more died,
were mutilated, internally displaced or raped. The after-effects of
this strategy are still being felt in Southern Africa.
In 1987, Simba Makoni, the then Executive Secretary of
the SADCC (SADC’s predecessor), estimated the total amount of
damage to
the SADC region from South Africa’s destabilisation at
$10 billion, which was more than total development aid to the region
or
about one-third of the value of regional exports. The total
damage to the region, when we add other root causes, is in all
likelihood
much higher than this, especially the permanent
psychological and physical damage to thousands of people, large
tracts of land
laid waste by the indiscriminate laying of landmines,
lost development opportunities and so forth.”
22
Article 2 of the
Braamfontein Statement on
Xenophobia,
South African Human Rights
Commission
, 15 October 1998.
23
Id.
24
See above n 19.
25
The then Deputy Minister highlighted the fact that xenophobia is
racialised: the prejudice is directed against refugees from Africa,
not those from Eastern Europe.
26
Hammond-Tooke
The Roots of Black South Africa
(Jonathan Ball
Publishers, Johannesburg 1993) at 99.
27
[2004] ZACC 7
;
2005 (1) SA 217
(CC);
2004 (12) BCLR 1268
(CC) at para 37.
28
Tenth applicant, Pelagie Nyiranzazora, 26 years old.
29
Matembela Chitera, 30 years old.
96