ILLEGAL IMMIGRANTS TENSION IN SOUTH AFRICA

Introduction

What happens when a country built on democratic values and Ubuntu runs out of space to accommodate undocumented immigrants. The illegal immigrants entry in South Africa result in exhaustion of resources. Resources such as health care, protection, shelter and education which are guaranteed by the Constitution Of The Republic.[1] The South African government faces significant challenges on its effort to guarantee that resources are distributed to all citizens fairly. The main focus in the piece is how the high number of undocumented immigrants escalated tension in South Africa, which emanates from bridging of borderlines that are not managed creating a clash for resources. In this paper the aim is to elaborate further on the issues that arise from entry of undocumented immigrants in the country. The discussion expands on human rights affected which are provided to all citizens in South Africa. Along with the Laws applicable to illegal immigrants, and the protection of illegal immigrants.

Constitution

The Constitution ensures that all citizens in South Africa are entitled to fundamental human rights. Within the human rights basic needs are provided like shelter, water, social security, food, health care and education.[2] Section 26 guarantees adequate housing to everyone and with no citizen being evicted, or their home being demolished without an order from court.[3] Section 27 provides for access to  health care, sufficient water and food, social security and health care.[4] Section 29 states that everyone is entitled to basic education In the language of their choice or preferred one.[5] In that case the government has to take legislative reasonable and certain measures within the availability of resources.[6] To achieve realisation which is progressive of every right mentioned.[7]

Immigration Act

Guidelines for admission and regulation of foreigners are contained as a uniform framework in the Immigration Act.[8] The Act regulates foreigners departure and residence within the Republic.[9] Yet, the Immigration Act has partial effect which means it is technical in nature and does not grant Constitutional rights.[10] Section 32 of the Act stipulates that illegal foreigners shall depart from the Republic unless the department authorises their stay pending application of his or her status.[11] Section 2 covers deportation I illegal foreigners and uses peremptory wording and states that “Any illegal foreigner shall be deported.[12] On the other hand, section 34 of the Act makes provision for detention and deportation illegal immigrants.[13] It states that the immigration officer shall without a warrant arrest or cause an arrest for an illegal immigrant, and shall apart from his or her being arrested deport or cause the deportation of such person.[14] Lastly, the office irrespective of pending deportation shall retain or place the illegal foreigner in administration or control under the Director-Generals department.[15] According to section 32 along with section 34 an illegal foreigner occupying a property unlawfully must vacate and is permanently deported.[16]

Refugees Act

The enactment of the Refugees Act was to effectively promote international standards, principles, and international legal instruments in relation to refugees within South Africa.[17] The act was meant to control refugee status applications and recognition, as well as to outline the rights and responsibilities associated with this status[18] The Act is however technical in nature, and has no direct effect on constitutional rights.[19] Though, it shall grant indirect application to such rights.Drawing a clear connection between a constitutional right and the Refugees Act is still hard.[20] Consequently, a purposive reading of the Act should be the main focus. The Act is legally enforceable, broadly applicable, and equally applicable to all.[21] The Act is legally applicable and many of the traits of a property system that upholds the goals, intent, and spirit of the Bill of Rights seem to be present in the Refugees Act.[22]

Protection by the PIE

The procedural rights and significant safeguards found in PIE should be used as the departure point when evicting illegal foreign nationals. Then, The court of law must provide formally written and efficient notice of such proceedings to both the illegal occupant and the municipal area with jurisdiction.[23] Therefore, in an event where the person owning the property initiates court procedure to evict the unlawful occupant, must do so within a period fourteen days before court procedure proceeds.[24] In an event the court of law. This must to be completed at least 14 days before the proceedings’ hearing.[25] If the court determines that service cannot be affected promptly in such a way that is specified by the court’s regulations.[26] Then, as long as the court takes into account the unlawful occupants rights to adequate to defend or notice the issue, service must be carried out as instructed by the court.[27] The court has to take into consideration the  vulnerable people’s needs and rights into account while deciding whether it would be fair and just to evict the unlawful occupants[28]

Problem

The South African economy is severely affected by the high number of illegal immigrants in areas including housing, work environments, health, and education. Given that the South African taxpayer loses over R2.5 billion annually due to illegal immigration.[29] Political figures, labor unions, and the general populace are becoming more vocal in attributing the decline in wages, the acquisition of low-wage employment, the competition for limited housing, and the rise in crime rates to immigration.[30]

The escalating number of illegal immigrants in South Africa is significantly being connected to the country’s escalating crime and violence rates. Police claim that about 14% of all South Africa crimes involve illegal immigrants.[31] Most of the time, illegal immigrants suffer from poverty and hence  are simply driven to commit crime.[32] These offenses usually include money laundering, prostitution, drug trafficking, auto theft, and weapons smuggling.[33] However, the very nature of these illegal acts frequently leads to other crimes like murder and rape.[34]

The health system is greatly burdened by illegal immigration.For instance, thousands of Mozambicans dwelling illegally in the Mpumalanga and Northern Province flood clinics in these rural areas.[35] It is also thought that diseases like malaria, yellow fever, and cholera, where eradicated in South Africa, and were brought back by illegal immigrants.[36] Additionally, research has indicated a connection between the region’s HIV virus outbreak and illegal immigrants.[37] Sexual services are often obtainable since many illegal immigrants end up in cities without their families.[38] Since, illegal immigrants end up in circumstances where prostitution is their sole source of income.[39]

The informal settlement issue is made worse by the growing number of illegal immigrants, most of whom enter in South Africa homeless, unemployed, and without jobs. The informal settlements, have grown rapidly in South Africa due to the country’s increased urbanization trend. As a result, many poor illegal immigrants are relocating to new informal settlements, particularly in the province of Gauteng. Initially  South Africans are the main people for funds which are available to improve informal settlement and offer services. However, there is no doubt that the RDP project is made difficult by the migration of undocumented foreigners in the informal settlements. Furthermore, it is clear that the influx of undocumented immigrant puts extra strain on transportation, education, firewood, and water resources. Yet, Illegal immigrants gain advantage from housing and services provided by the provisions of the RDP benefiting from taxpayers in South Africa because it is very difficult to differentiate between them and citizens of the republic in the informal settlement.

In South Africa  economic concerns seem to be the basis of fear, and main cause of the concern is the increasing number of undocumented illegal workers.[40] Therefore, South Africa is economically vulnerable since its unemployment rate is higher than it has ever been.[41] On the other end, There is certainly a cause of concern regarding the influx of illegal immigrants which is that they are unskilled and uneducated.[42] Majority of illegal immigrants typically work at the lower end of the labor market and solely perform physical labor.[43] Illegal Immigrants serve as temporary employees or subcontractors in industries like construction, informal trade, hotels and restaurants, and home maintenance.[44] Furthermore, illegal immigrants are a threat to the native unemployed, as South Africa itself has a high unskilled unemployment rate.[45] Wage levels are negatively impacted by the significant number of illegal immigrants looking for work at the bottom end of the labor market.[46] Since, wage levels in some industries have fallen much below what South Africans are willing and able to work and live at, since many immigrants are willing to take lower wages in order to survive.[47]

South Africa encounters issues arising from high number of immigrants[48]. Local government struggles with infrastructure constraints and backlogs.[49] Migration is now an added layer which South African municipals were not meant to manage[50]. The issue is not centred on migration yet on population growth which is beyond institutional capacity. As, a result of overpopulation by migration of uncensored population which are undocumented immigrants municipals lack to respond in an effective manner.[51]

Regardless of The Constitution Of The Republic Of South Africa ensuring basic human rights to everyone. Every individual who arrives in South Africa either as an asylum seeker or undocumented immigrants need access to basic needs. Basic needs such as healthcare, public safety, Education, sanitation and water.[52] Thus, planning of each municipal depends on projected population increase[53]. If population increases beyond projection as per normal expected growth.[54]  The municipals suffer and there will be countless services simultaneously to be delivered[55]. Now one can say that in this instance migration becomes a capacity issue not an immigration problem.

The demand for housing has increased, which presents challenges for housing departments. There is increasing demand on economic development groups to create job possibilities. The number of patients using health services is increasing[56]. Congestion in educational facilities is getting worse. The need for infrastructure systems to accommodate growing populations is growing.

The Immigration Act do not promote objects, purport and spirit within the Bill Of  Rights. However, it may give indirect effect on the Constitution provisions such as section 21, which provides that every citizen is entitled to freedom of movement.[57] The Immigration Act has no direct provision which promotes consideration of the illegal foreigners rights prior deportation or eviction of that person.[58] The Immigration Act only makes provision and regulates eviction of illegal foreigners, by ensuring that there is effective an efficient immigration administration. It further promotes review and adjudication of decisions taken with regards to illegal foreigners, yet there is a gap in provision for administrative or court action.

In that case, section 21 subsection 2 makes a remark that everyone which includes non citizens of the Republic of South Africa are guaranteed a right to exit the Republic.[59] Although, the legal position of the Constitution provision seems to be applicable to everyone within the territory of South Africa including illegal foreigners. The indirect effect by the Immigration Act to rights in the Constitution appears contextually problematic. Now normal principles must be consulted with and applied to promote a doctrine of the single system of law.[60]

Conclusion

To sum up one could say it has been evident through ou this piece that within the legal framework provided none provides protection for illegal immigrants. It is evident that the rising numbers of illegal immigrant are contributing to economic constraints and such is adding a burden to the South African government. The investigation conducted in this piece was to serve as an addition to other composed materials about undocumented immigrants impact in South Africa. The main aim was to evaluate what led to tension in the Republic. It was explain that citizens rights in South Africa have been vastly affected by the influx of foreigners. On an educational, safety, social and economical level.

Now as a country build on democracy and upholds ubuntu. In my perspective after throughout research I say it is just and equitable that procedural fairness is followed to remove or deport illegal immigrants not by force. Since, it is somewhat difficult for the government to initiate a structure to regulate our borderline. To ensure that everyone who enters our country does so legally. It was evident that the laws which were enacted to regulate admission of illegal immigrates in our country particularly the immigrants Act and the Refugees Act do not directly afford illegal foreigners basic human rights enshrined in the constitution. Now that should be tangible enough for the government to ensure safety and well being of other human. By ensuring safe evictions to undocumented immigrants.

REFERENCE(S):

Andre J Pelser, Heading for canaan: a reflection on illegal migration in South Africa (1998) Southern Journal for Contemporary History 23, 1-14

E Alimohammadi & G Muller, the illegal eviction of undocumented foreigners from South Africa law (2019) journal 793-818

Eugen K Campbell, Botswana: Reflection on Illegal immigrants in Botswana and in South Africa,

In Occupier of 51 Olivia Road, Berea and 197 main Street, Johannesburg v City of Johannesburg 2008 (3) SA 208 (CC)

The Constitution Of the Republic Act 108 1996

Immigration Act 13 2002

The Refugees Act 130 1998

[1] The Constitution Of the Republic Act 108 1996

[2] ibid

[3] ibid

[4] ibid

[5] ibid

[6] The Constitution Of the Republic Act 108 1996, s 29(b)

[7] ibid

[8] Immigration Act 13 2002

[9] Immigration Act 13 2002 s 1(1)

[10] E Alimohammadi & G Muller, the illegal eviction of undocumented foreigners from South Africa law     (2019) journal 793-818

[11] Immigration Act 13 2002 s 32

[12] Immigration Act 13 2002 s 32 (2)

[13] Immigration Act 13 2002 s 34  (1)

[14] ibid

[15] Immigration Act 34

[16] In Occupier of 51 Olivia Road, Berea and 197 main Street, Johannesburg v City of Johannesburg 2008

[17] The Refugees Act 130 1998

[18] Ibid

[19] E Alimohammadi & G Muller, the illegal eviction of undocumented foreigners from South Africa law     (2019) journal 793-818

[20] ibid

[21] ibid

[22] ibid

[23] Prevention of illegal Eviction from and Unlawful Occupation of Land Act 19 1998

[24] ibid

[25] Prevention of illegal Eviction from and Unlawful Occupation of Land Act 19 1998 s 2

[26] ibid

[27] E Alimohammadi & G Muller, the illegal eviction of undocumented foreigners from South Africa law (2019) journal 793-818

[28] ibid

[29] Andre J Pelser, Heading for canaan: a reflection on illegal migration in South Africa (1998) Southern Journal for Contemporary History 23, 1-14

[30] ibid

[31] ibid

[32] ibid

[33] ibid

[34] ibid

[35] ibid

[36] Andre J Pelser, Heading for canaan: a reflection on illegal migration in South Africa (1998) Southern Journal for Contemporary History 23, 1-14

[37] ibid

[38] ibid

[39] ibid

[40] ibid

[41] ibid

[42] ibid

[43] ibid

[44] Andre J Pelser, Heading for canaan: a reflection on illegal migration in South Africa (1998) Southern Journal for Contemporary History 23, 1-14

[45] Ibid

[46] ibid

[47] ibid

[48] ibid

[49] ibid

[50] ibid

[51] ibid

[52] ibid

[53] ibid

[54] ibid

[55] Ibid 6

[56] Ibid 6

[57] The Constitution Of The Republic Of South Africa

[58] Ibid

[59] The Constitution Of The Republic Of South Africa

[60] E Alimohammadi & G Muller, the illegal eviction of undocumented foreigners from South Africa law     (2019) journal 793-818