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) (12 December 2006)

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:
1. 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
2. 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, in 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.

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;

(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 –

(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;

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South Africa: Constitutional Court

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) (12 December 2006)