Court defends rights of foreigners

There is no law to prevent refugees and asylum seekers from getting licences to operate spaza shops in SA, the Supreme Court of Appeal said on Friday.

The proliferation of immigrant-run spaza shops in townships across the country has led to tension with local traders, some of whom have argued that only South African citizens should be entitled to licences. While they appeared to have support from sections of the government, Friday’s judgment made it clear that asylum seekers and refugees — who are legally in the country — were also entitled to apply for permits to run spaza shops.

Judge Mahomed Navsa had strong words for the police and the government, saying they should "guard against unwittingly fuelling xenophobia".

The judgment concerned a police initiative called "Operation Hard Stick" meant to close down unlicensed spaza shop owners in Limpopo. More than 600 businesses were closed, even some that did have licences.

"The description of the police operation can hardly be said to be a public relations coup," said Judge Navsa. "The appellants asserted that the police often extort bribes and do not act against South African-owned businesses, who are similarly not licence compliant."

Refugees and asylum seekers said when they tried to get licences, the authorities claimed that foreigners were not entitled to operate businesses in SA. But for many, being self-employed was the only way to feed their families.

While the constitution does limit the right to choose one’s occupation or trade to citizens, this did not trump the right to dignity, said Judge Navsa. "There is no trump card when constitutional rights are considered alongside each other," he said.

In circumstances such as these, where traders had no other way to support themselves, "and will as a result be left destitute", the constitutional right to dignity became relevant. The constitution ought not to countenance an interpretation of the law that would condemn the traders to "a life of humiliation and degradation".

Judge Navsa ticked off the authorities ’ legal teams. Asked what was to happen to destitute refugees, there "appeared to be some suggestion, regrettably, that some persons might be left to their destitution".

The "frustration" of authorities dealing with a burgeoning asylum-seeker and refugee population "must not blind them to their constitutional and international obligations", he said.

"It must especially not be allowed to diminish their humanity."