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February 3, 2015

South African Court Backs Refugees’ Right to own Businesses

by Asylum Access

In a victory for economic rights for refugees in South Africa, Lawyers for Human Rights (LHR) successfully appealed for refugees’ and asylum-seekers’ right to own businesses on behalf of the Somali Association of South Africa and the Ethiopian Community of South Africa.

In September 2014, the South African Supreme Court of Appeal upheld refugees’ ability to operate their own businesses without fear of police reprisal. This decision represents a big achievement for refugee work rights in South Africa, as small enterprises are a common source of livelihood for citizens and asylum-seekers alike.

The appeal came as an attempt to challenge the state-sanctioned xenophobia that has been rampant in the country for the last several years. It reached a critical point in 2012, when police in Limpopo coordinated a government raid where officers shut down businesses operating without permits and confiscated property. “Operation Hardstick” unfairly targeted small businesses operated by asylum-seekers and refugees, who depend on these businesses as their only option for a source of income.

LHR initially brought this case (Somali Association of South Africa, et al., v. Limpopo Department of Economic Development, Environment and Tourism) in July 2013. The application was brought against the Limpopo provincial government, the South African Police Services, the Department of Home Affairs and several others on behalf of traders. They argued that refugees and asylum-seekers are “entitled to trade and operate businesses to earn a living in circumstances where they had no other means of livelihood.”

After being dismissed by the lower courts, LHR took their application to the Supreme Court, where the lower court’s ruling was overturned by Judge Navsa, who ruled that refugees have the right to open businesses in South Africa, otherwise they might be left destitute due to the lack of alternative employment opportunities.

An important point of the ruling states:

“If a refugee or asylum seeker is unable to obtain wage-earning employment and is on the brink of starvation, which brings with it humiliation and degradation, and that person can only sustain him or herself by engaging in trade, such a person ought to be able to rely on the constitutional right to dignity in order to advance a case for the granting of a license to trade…”

This case illustrates the importance of extending entrepreneurial rights to refugees and how big of an impact economic freedoms can have on a community as vulnerable as refugees and asylum-seekers.

With a long history of human and civil rights conflicts, this victory exemplifies the progress that South Africa is making towards a more welcoming and tolerant multicultural society. We encourage the South African government to continue taking steps to promote unity and equality within their country, especially because it has become a central hub of refuge for those seeking protection and better economic opportunities within Africa.

Axel Santana is an Executive Intern at Asylum Access. He has a Master’s in International Policy with a focus on Human Security and Development from the Monterey Institute of International Studies.

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