CC drifting to the right?

In The Union of Refugee Woman and Others v The Director: the Private Security Industry Regulatory Authority and Others, handed down yesterday, the CC voted 6 votes to 4 to reject the argument that legislation which in effect banned non SA citizens or permanent residents from working in the security industry, constituted unfair discrimination against refugees.

This outcome seems to confirm the rightward drift of the Court in recent years.

The majority opinion (written by Acting Justice Kondile) confirms that refugees are a vulnerable group in our society, but finds that it is perfectly acceptable for the law to place an extra burden on refugees to show their trustworthiness.

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.

And refugees must prove their trustworthiness more than SA citizens or permanent residence....

The majority is quick to assume that the impact on refugees is not very serious (because they can get other kinds of jobs) and that the law achieves the important purpose of guaranteeing the trustworthiness of security guards. They probably have no idea how many refugees work as non-armed security guards around the streets of Cape Town. I guess not many of them hang out in Green Point late at night.

The minority opinion (written – again – by two women judges, Mokgoro and O’Regan) rightly rejects this line of reasoning and is not so quick to assume the exclusion of refugees is for an important purpose. They understand that the Court’s equality jurisprudence is based on a substantive notion of equality that looks at the actual impact of the different treatment on the complaining group.

The effect of the legislation, the minority argues, is to send a signal that refugees are less trustworthy than SA citizens or permanent residence. It says that we as a society do not need to treat them with equal concern and respect.

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.

Analysing South Africa's international law obligations, the minority recognise that refugees have a status closer to that of permanent residence than that of other non-citizens who are not living permanently in South Africa. Just like permanent residence refugees have a right to stay on in South Africa indefinitely. They have gone through a process of being declared refugees and are mostly not in a position to return to their countries of birth.

In effect the minority sees that the discrimination here is most sharply drawn when one compares the treatment of permanent residence with that of refugees. There is hardly a distinction between them, which suggest the fact that refugees are not treated the same as permanent residents, is based on stereotypes and prejudice.

The minority opinion clearly shows more empathy with the specific vulnerability of the refugees. The minority judgment is imbued with the spirit of ubuntu while the majority judgment probably expresses the spirit of so called hard-nosed realism.