Refugees fight discrimination (Pretoria News)

  In the first case of its kind in the world, refugees from across Africa have approached the Constitutional Court to help them gain access to the private security industry. But the matter before the court is about more than just refugees who want to be security guards. "To my knowledge, before the court was approached, no other court, either in South Africa or any other jurisdiction in the world, have explicitly recognised refugee status as a prohibited ground of discrimination," Lawyers for Human Rights attorney Fritz Gaerdes said in papers before court.

 Gaerdes said in court papers the refugees believed the Constitution would allow them to apply to be registered as security providers in a similar way that South African citizens and those who have permanent residence here do. But Seth Mogapi, the CEO of the Private Security Industry Regulatory Authority (PSIRA), said they believed it would be better for refugees to be treated as the exception rather than the rule. He said PSIRA believed doing otherwise would compromise the control over the security industry. In turn, lawyers for the refugees said the stereotyping of refugees as security risks was offensive and unjustifiable. Mogapi said there were many logistical problems with checking the criminal records and possible military or other state security involvement of refugee applicants.

Gaerdes said before the new law came into operation in February 2002, refugees were registered and worked as security officers. Since then he had received many complaints that applications by refugees to be registered as security providers were being turned down. This eventually resulted in an application by 12 refugees and the Union of Refugee Women in the Pretoria High Court to have discrimination against them on the grounds of their refugee status declared unconstitutional. It was argued on their behalf that the law had violated their rights to dignity The Union of Refugee Women was litigating in the public interest. The refugees are Kinuguba Magambo, Aimable Do Grio Bandandaza, Richard Rugonda, Solange Mukamana, Jean-Marie Bipamba Mikado, Joseph Mubambek, Bosumbe Elanga, Pompidou Webber, Pelagie Nyiranzarora, Tshala Claudine Mbaya, Chitera Matembela and Deudonne Masaka Nizigiyimana. They are all recognised refugees from the Democratic Republic of the Congo, Burundi, Rwanda and Angola. But Pretoria High Court judge Ronnie Bosielo, despite recording his deep sympathy with the plight of refugees, dismissed their application with costs.

They now want leave to appeal to the Constitutional Court. "This application seeks to protect the dignity and right to non-discrimination of persons who live in South Africa as recognised refugees," Gaerdes said. "In particular, it is concerned with whether or not a total exclusion of recognised refugees from working in the private security industry, on the sole basis that they are not citizens nor permanent residents of South Africa, is consistent with the Constitution," he said. He said the type of low-level security work refugees wished to do would hold no threat to the public and national interest.

Mogapi said in papers before court PSIRA was opposing the application for leave to appeal. He said one of the criteria a potential security service provider was judged against, was whether he or she is a citizen or a permanent resident of South Africa. But, he said, in extraordinary cases PSIRA may "on good cause shown and on grounds which are not in conflict with the purpose of the Act …register any applicant as a security service provider". He said to interpret the law in this way made practical sense. "The Authority receives and processes 12 000 applications for registration every month.

The routine applications are handled by 'low-ranking administrative staff'. It is only fair to require an applicant who seeks special treatment by way of exemption from the ordinary requirements for registration, to say so and to advance grounds for it. The application is then referred to me to deal with it," Mogapi said. Mogapi said the citizenry requirement is "a rational and sensible approach". "(It) says that we place our trust in people who are South Africans or have made South Africa their permanent home. But it is not only a question of trust. One is also better able to check on the background of an applicant if they are South African citizens or permanent residents. As security service providers have access to firearms, it is important to corroborate their criminal record status (otherwise) the public would be placed at the mercy of such persons that could be carrying firearms. This opens itself to serious abuse of the public's rights and safety." Gaerdes said it was difficult for refugees to get certificates to prove that they have a clean record and PSIRA refused to accept affidavits to that effect. The Constitutional Court will hear the matter later this month.