IX. Adopting a Broad-Based Approach to Zimbabweans in South Africa: Allowing Entry, Regularizing Status, Ending Deportations and Granting the Right to Work
The estimated one million Zimbabweans in South Africa cannot be described as voluntary economic migrants. As the testimonies presented in this report document, Zimbabweans are coming to South Africa out of desperation and as a last option to cope with the crisis in their country. Their movement can and should be described as involuntary. Official recognition by governments and international actors of the involuntary nature of Zimbabweans displacement into South Africa (and other neighbors) is a necessary step to determine the most effective response to their presence in South Africa.309
Presently Zimbabweans have limited opportunity to lawfully enter and stay in South Africa. Some manage to obtain visitors permits, a small number obtain one of four types of work-related permits and some claim asylum. However, the vast majority, in the hundreds of thousands, continue to enter South Africa irregularly and have no legal status.
The South African authorities should adopt a broad-based approach to Zimbabweans presence in South Africa. This should allow Zimbabweans to enter South Africa, temporarily regularize the status of all Zimbabweans present in South Africa for a reviewable period of time, provide for an end to deportations of Zimbabweans, and provide all Zimbabweans in South Africa with the right to work during that period.
There are at least eight reasons for such an approach.
First, regularization would respect South Africas legal obligations. Many Zimbabwean asylum seekers in South Africa do not get the protection to which they are entitled under South African and international refugee law. There is no short term prospect of substantial improvements in the asylum and deportation systems. Consequently, Zimbabwean asylum seekers will continue to face the risk of being subjected to refoulement. These include those seeking asylum as a result of the governments campaign of political violence and repression against opposition supporters following the March 2008 elections and people targeted byOperation Murambatsvina, if they claim asylum in the future. Because the current asylum and deportation systems currently fail to adequately identify and protect many Zimbabwean asylum seekers, the only way to end their unlawful deportation and to ensure South Africa respects its obligations under international law is to end deportation of all Zimbabweans.
Second, regularization would unburden the asylum system of unnecessary claims. South Africas dysfunctional asylum system is overburdened by tens of thousands of claims made by Zimbabweans who are desperate to work. Although many, including those targeted by the 2005 evictions, may have valid asylum claims, others may use the asylum system as the only way to regularize their legal status and to have the right to work in South Africa. Regularizing Zimbabweans status and giving them the right to work would help reduce the number of unnecessary claims in the asylum system and would thereby help the government to guarantee protection for those with valid claims.
Third, regularization would protect Zimbabweans during entry and stay in South Africa, including against xenophobic violence at the hands of South African citizens. In 2007 there were increasing reports of Zimbabweans falling victims to serious criminal offences during informal border crossings at the hands of violent Zimbabwean people smugglers known as maguma guma, including many instances of rape.310 Once inside South Africa, Zimbabweans undocumented status exposes them to violence at the hands of South African citizens who almost certainly believe that their vulnerable victims wont report them to the police. As noted above, the wave of violence against Zimbabwean and other foreign nationals that swept South Africa in May 2008 and which left at least 62 people dead, 670 injured, and over 100,000 displaced,311 follows in the wake of many isolated incidents of similar violence that have taken place throughout 2007 and early 2008.312 Zimbabweans undocumented status also exposes them to exploitation by employers and to harassment by the South African police.313 In summary, helping Zimbabweans enter through formal border crossings would attenuate predatory practices at the border. Ensuring that Zimbabweans were documented and could work would significantly reduce their vulnerability to xenophobic violence at the hands of criminals, to exploitation by employers, and to corrupt police practices.
Fourth, regularization would offset the cost to the South African taxpayer of ineffective deportation and wasteful use of police resources. The South African authorities have openly recognized that deporting Zimbabweans doesnt work,314 and that the presence of Zimbabweans in South Africa is something [South Africans] have to live with.315 The vast majority of undocumented Zimbabweans are not identified or deported and those who areup to 200,000 a year or morereturn to South Africa within days or weeks.316 In the absence of building a Great Wall of China between South Africa and Zimbabwe to stop people walking across,317 South Africa will continue to fruitlessly spend huge sums of money and large amounts of police resources on deporting Zimbabweans.
Fifth, regularization would provide data on hundreds of thousands of undocumented Zimbabweans. Because the vast majority of Zimbabweans enter the country without a visa, the South African authorities have no data on them, including data on identity and places of residence and work. Facilitating documented entry would be in the governments interest: it would know how many people were in the country, who they are, and where they live and work. In the event of problems that may arise or upon expiration of their temporary status, the government would be able to identify people it registers under the proposed scheme.
Sixth, regularization would plug the gaps in the skilled labor market and ensure a level playing field for South African workers in the unskilled labor market. Regularizing their entry and stay in South Africa would help the authorities more easily identify Zimbabweans who can plug the well-documented gaps in both the skilled and unskilled South African labor market. The skilled labor market includes shortages of teachers and nurses.318 The unskilled sector has a constant need for farm laborers and construction-site workers. Zimbabweans, many of whom work for less than the minimum wage in these two sectors, are often accused in the media of taking away jobs from South African workers. Some are undocumented and fall victim to farmers wanting to hire cheap labor with which South African nationals cannot compete.319 Regularizing their stay would help the authorities to enforce employers minimum-wage obligations and create a level playing field on which South African nationals would not be disadvantaged when competing for jobs.
Seventh, regularization leading to the right to work would address Zimbabweans humanitarian needs in South Africa that would reduce the pressure on South African social assistance programs.Because of their undocumented status, Zimbabweans in South Africa are often unable to find or keep jobs, increasing their own humanitarian needs. Granting Zimbabweans the right to work in South Africa would help them fend for themselves, which would in turn reduce the number of desperate Zimbabweans seeking help from South Africas social assistance programs.
Finally, regularization leading to the right to work would help Zimbabweans support desperate families remaining in Zimbabwe, thereby possibly reducing the number of Zimbabweans fleeing their country for South Africa. Human Rights Watchs research shows that most Zimbabweans are not coming to South Africa because they want to immigrate permanently but because it is the only way for them to help themselves and their families survive in Zimbabwe. The right to work would enable Zimbabweans to send desperately needed basic foodstuffs to their families in Zimbabwe. This, in turn, would possibly reduce the number of Zimbabweans, especially the most vulnerablechildren, the elderly, PLWHAcoming to South Africa.
Aside from claiming asylum which leads to an asylum seekers permit, Zimbabweans only other option to lawfully enter and remain in South Africa is to obtain a temporary residence permit.
Sections 11-24 of the 2002 Immigration Act set out the different types of temporary residence permits.320 The permits most likely to be held by unskilled or semi-skilled Zimbabweans are: visitors permit (s. 11) or permits granted to them under the corporate permit system (s. 21). Zimbabweans with specific skills who are able to fulfil the formal requirements can apply for quota work permits or general work permits (s. 19). The relatively limited number of Zimbabweans regularly trading in the border areas can apply for cross-border permits (s.24).
According to the 2002 Immigration Act and its regulations, foreign nationals must present a passport in order to obtain any of these permits. Many Zimbabweans do not have a passport. Since December 2006 the number without a passport has increased because the Zimbabwean authorities ran out of funds for importing the specific paper required to produce them.321 In 2007 the Zimbabwean authorities began to issue emergency travel documents (ETDs) in place of passports. There has been no official decision by the DHA to recognize an ETD as a valid alternative to a Zimbabwean passport. However, anecdotal information obtained by Human Rights Watch suggests that in some cases immigration authorities do accept ETDs.322
In practice few Zimbabweans can enter under the temporary residence permit system.323 Most enter South Africa through informal border crossings or bribe immigration officials at the border; they enter without a permit and remain undocumented in South Africa.
The South African government has a stark choice. It can either continue to try to ignore the reality of hundreds of thousands of undocumented Zimbabweans on its territory, allowing many to be mistreated by police, abused and exploited by employers, and hundreds of thousands to be removed haphazardly, arbitrarily, expensively and ineffectively, or it can choose to regularize their stay.
Given the large number of Zimbabweans believed to be in South Africa, the similar needs faced by all of them, and the operational challenges involved in any response, Human Rights Watch believes that the government should adopt the simplest, fairest, and most expedient possible approach.324
There are three available options based on South African law if the government wants to adopt such an approach.
The first option would be for the government to use the 1998 Refugees Act to make an official one-off declaration that all Zimbabweans coming to South Africa are refugees. The 1998 Refugees Act adopted verbatim the refugee definition from the 1969 OAU Convention, which includes every person who, owing to events seriously disturbing public order in either part or the whole of his country of origin is compelled to leave (emphasis added).325 The Act also authorizes the minister of home affairs to declare that a given group of persons qualifies for refugee status.326 The government could, therefore, find that political and economic conditions in Zimbabwe constitute an event seriously disturbing public order, and declare Zimbabweans as a group to be refugees.327
Although a blanket refugee declaration would be straight forward, within existing South African law, and easily verifiable, the government would likely find the political ramifications of such a declaration daunting.328 It should be noted, however, that a senior South African official has publicly referred to Zimbabweans in South Africa as refugees.329 It should further be noted with respect to the possible political implications of such a declaration that the OAU Convention states, The grant of asylum to refugees is a peaceful and humanitarian act and shall not be regarded as an unfriendly act by any Member state.330
A second option would be for the government to use its membership of SADC (Southern African Development Community) to facilitate Zimbabweans entry into South Africa. SADCs Protocol on the Facilitation of Movement of Persons aims, among other things, to establish harmonized entry requirements including a visa-free right of entry for 90 days per year.331 South Africa has already taken steps toward this, allowing nationals from eight SADC countries to enter South Africa on 30-day free visas.332 It has extended the full 90-day free visa option to Botswana nationals.333 South Africa could make a similar arrangement with Zimbabwe, whether for 30, 60, or 90 days. However, such visa-free entry would not give Zimbabweans the right to work, which is the most important part of any solution to be adopted.
Although the SADC protocol does aim to establish a harmonized approach that enables all SADC nationals to work in any SADC country,334 as SADCs richest country South Africa is reluctant to take steps without other key countries such as Botswana, SADCs second richest country, doing the same. Adopting this part of the protocol would, therefore, require prolonged SADC-wide negotiations. Although the process could be accelerated, it is not a short-term option with regard to Zimbabweans in South Africa.
The third option would be for the government to use discretionary powers under immigration law to grant Zimbabweans in South Africa a temporary immigration status, for a limited period of time, and under specific terms and conditions.
Although Human Rights Watch prefers the first option, because the political and economic crisis in Zimbabwe can indeed be accurately described as events seriously affecting public order that are producing refugees, the political obstacles for that option and the limitations (in terms of work authorization and timeliness) of the second option, lead us to urge the South African government to adopt the third option as the most pragmatic and expedient way to provide broad-based protection temporarily for Zimbabweans in South Africa.
Exercising Discretion to Adopt a Broad-Based Approach: a New Temporary Immigration Exemption Status for Zimbabweans
Under section 31(2)(b) of the 2002 Immigration Act, the minister of home affairs has discretionary power to exempt certain people from standard immigration procedures and may under terms and conditions determined by him or her grant a foreigner or a category of foreigners the rights of permanent residence for a specified or unspecified period when special circumstances exist which justify such a decision.335
Under this provision, the minister could establish a new temporary permit scheme called temporary immigration exemption status (TIES) for Zimbabweans.336
The new TIES permit would identify all Zimbabweans currently in South Africa or in Zimbabwe as a category of foreigners. The special circumstances justifying the decision to use the exemption would be both the current post-election political crisis and economic situation in Zimbabwe and the need to temporarily regularize the undocumented status of the large numbers of Zimbabweans already present in South Africa. All Zimbabweans, whether already asylum seekers or in South Africa under a visitors or work permit, would have the right to apply for the new temporary permit.
TIES would obviate the need for most Zimbabweans to apply for asylum. Based on Human Rights Watch interviews with Zimbabweans in South Africa, eligibility for temporary status that grants the right to work is likely to meet many of the needs of most Zimbabweans. The authorities could exercise their discretion to prevent a person from concurrently holding both TIES and the status of asylum seeker. Nonetheless, this would be on the understanding that a failed asylum applicant would still be eligible for TIES or that a TIES permit holder would be permitted to seek asylum upon the expiration of TIES if she had an individualized fear of persecution.
The minister would set out procedures for facilitated (visa-free) entry into South Africa as well as for procedures to register Zimbabweans already in South Africa for TIES.
Section 31(2)(b) states that in granting an exemption the minister grants the rights of permanent residence. These are extensive337 and include the economic and social rights to housing assistance and to non-health-related social services such as food and social security.338 The minister could choose to exclude these latter rights on the grounds that it would be impossible for the South African government to extend these rights to up to one million people. She could, therefore, limit the rights granted under the new status to the right to work and to the rights that everyone present in South Africa has under South Africas Bill of Rights regardless of their legal status.339 The minister could justify not granting full permanent residence rights under the words may under terms and conditions determined by her in section 31(2)(b). In contrast, under South African law individuals recognized as refugees and granted asylum would enjoy the full range of rights in the Bill of Rights and would be entitled to apply for permanent residency status after five years.
Finally, the minister would make clear that as long as she has good cause provided under section 32(1)(b),340 she may at any time revoke the exemption that she has granted under section 31(2)(b). When TIES is withdrawn, the minister would have to justify her decision in writing with reference to the country conditions in Zimbabwe.
Entry into South Africa and considerations for Zimbabweans already in South Africa
On arrival at the border,341 Zimbabweans would have to prove their nationality by producing an identity document of some kind, whether an emergency travel document (issued in place of passports since December 2006) or some other kind of formal identity papers. They could be issued with a special temporary transit permit and would be told where to register in-country as a Zimbabwean in South Africa.
Zimbabweans already in South Africa would go directly to the registration centers. Zimbabweans in South Africa without identity papers proving their Zimbabwean nationality would have the option of proving their nationality in some other way, for example by answering a range of variable questions on Zimbabwe.342
Under the new TIES scheme, the DHA would set up special registration procedures in its offices in the countrys main urban centers. Ideally these would involve computerized recording of each TIES applicants registration. Upon registration each applicant would receive a TIES permit, preferably laminated to protect it from wear and tear, which would clearly state that the permit holder benefits from the temporary immigration exemption status for Zimbabweans.343 The permit would make clear that the TIES permit holder is legally present in South Africa, cannot be deported, and has the right to work.
Ending deportations of Zimbabweans
Given the current risk of refoulement that exists for Zimbabwean asylum seekers in South Africa, ending deportations of Zimbabweans is one of the most important priorities for the South African government. In setting up the TIES scheme, the authorities should announce an end to deportations of all TIES-registered Zimbabweans in South Africa. Zimbabweans who become prohibited persons or undesirable persons could be deported,344 unless the person is an asylum seeker or refugee, in which case the risk of persecution or a real risk of being returned to torture or cruel, inhuman, or degrading treatment must be taken into account as a barrier to deportation.345
The right to work
The centerpiece of TIES would be the right to work. The TIES permit would clearly indicate that the bearer is authorized to work. This would address Zimbabweans most urgent need to make enough money to support themselves and their families in Zimbabwe.
The South African authorities would almost certainly face criticism from various sides for granting the right to work on the grounds that this would take away jobs from South Africas 47.9 million residents346 who are already facing an unemployment rate of 23 percent.347
A government information campaign could inform South Africans that hundreds of thousands of Zimbabweans are already working without work permits in South Africa, and that officially granting them the right to work would help to regulate their access to the job market and help control wages, guaranteeing equal access to the job market for South Africans. It could also make clear that South Africa could use skilled Zimbabweans to fill its well-documented skills shortages, and that unskilled Zimbabweans working in the informal sector (domestic work, cleaning, street trading, small businesses such as internet cafes etc.) are not a threat to South African jobs, given that these jobs are overwhelmingly new jobs in an ever-expandable market.
309 UNHCRs Executive Committee has noted that the underlying causes of large-scale involuntary population displacements are complex and interrelated and encompass gross violations of human rights, including in armed conflict, poverty and economic disruption, political conflicts, ethnic and inter-communal tensions and environmental degradation (emphasis added). UNHCR Executive Committee, Conclusion on Comprehensive and Regional Approaches within a Protection Framework, No. 80 (XLVII), (1996), http://www.unhcr.org/excom/EXCOM/3ae68c6e24.html (accessed April 21, 2008).
310 In late 2006 the IOM reported that 8 percent of deported Zimbabweans interviewed in November told IOM that they had suffered some kind of sexual assault either during the border crossing from Zimbabwe to South Africa or during deportation. The report does not break down this percent into non-sexual physical assaults and sexual assaults. Unknown individuals are reported to have committed 57 percent of non-sexual assaults during the crossing from Zimbabwe into South Africa while the South African police or military are reported as having committed the remainder. The IOM report does not report sexual assaults having been committed by the South African police or military. As a result all sexual assaults are presumed to have been committed by criminals during the border crossing. IOM Beitbridge Second Migration Survey, p. 10. In mid-2007 IOM Beitbridge told South African researchers that they were recording a high number of incidents of rape of Zimbabwean women on the border, some of whom had filed rape charges at the IOM office. FMSP, Facts or Fiction? pp. 7-9.
311 On May 30, 2008, the South African police confirmed 62 people had died and 670 had been injured in the violence. Reuters Foundation, S. Africa violence toll rises to 62, May 31, 2008, http://www.reliefweb.int/rw/rwb.nsf/db900sid/RMOI-7F6KB4?OpenDocument&rc=1&cc=zaf (accessed Jun 1, 2008). UNHCR have confirmed that an estimated 100,000 people were displaced. UNHCR, South Africa: UNHCR aid provided to displaced, Briefing Notes, May 30, 2008, http://www.unhcr.org/news/NEWS/483fef5b2.html (accessed May 31, 2008).
312 For overviews of reports of violence against Zimbabweans by South African citizens that took place before May 2008, see CRMSA, Protecting Refugees, pp. 50-51; and FIDH, Surplus People? pp. 34-35. In April 2008 CoRMSA reported on a number of serious incidents involving killings of foreign nationals and burning of their property, summarizing the situation as follows: In the first three months of the year, community attacks characterized by mob violence have taken place on foreign nationals in Gauteng, North West, Free State, the Eastern Cape and the Western Cape resulting in the loss of many lives and destruction of many peoples property. CoRSMA, Newsletter No. 9, p.1.
313 For examples of arbitrary arrest, intimidation and requests for bribes by South African police, see Civil Society Written Submission, The Undocumented Experiences of Refugees, pp. 20-24.
314 The South African Minister of Home Affairs has recognized that deporting Zimbabweans does not work and is a waste of resources: Mapisa-Nqakula says it is a waste of money to keep deporting people as the majority of them return within a few days. SABC News, SA seeks solution to deal with Zim citizen influx, August 28, 2007, www.sabcnews.com/africa/southern_africa/0,2172,154857,00.html (accessed March 15, 2008).
315 Mbeki: Zimbabweans here to stay.
316 IOM in Beitbridge, Zimbabwe, reports that 48 percent of Zimbabweans interviewed post deportation in November 2006 told IOM that they intended to return without documents to South Africa within three months. IOM, Beitbridge Migration Survey, results form the second survey of deportees receiving humanitarian assistance in Beitbridge, Zimbabwe, 8-28 November 2006. On file with Human Rights Watch. The South African Red Cross, reporting in August 2007, says that the IOM told it that this now stood at 70 percent. South African Red Cross, Rapid Assessment in Musina and Johannesburg, p. 4.
317 Mbeki: Zimbabweans here to stay.
318 The types of skilled professions for which there are shortages in South Africa are listed on the DHAs quota work permits schedule: http://www.home-affairs.gov.za/documents/Schedule_list.pdf (accessed March 17, 2008).
319 On undocumented Zimbabweans working on farms and the general problem of farm workers being paid less than the minimum wage, see Human Rights Watch, Keep Your Head Down, pp. 55-59 and 79-86, and Unprotected Migrants, pp. 38-41.
320 Section 10 of the 2002 Immigration Act states that a foreigner may enter and sojourn in South Africa only if in possession of a temporary residence and that sections 11-24 set out the types of temporary residences available.
322 Human Rights Watch, email exchange with South African refugee law practitioners, April 2008.
323 Most Zimbabweans coming to South Africa are skilled or semi-skilled. With a passport they can enter under the corporate permit system (s. 24, 2002 Immigration Act, Regulation 18, 2005 Immigration Regulations), to work on farms, or they enter on a three-month visitors permit, which does not allow them to work. A visitors permit involves a deposit of 2,060 South African Rand (SAR), approximately US$250, which is prohibitively high for most. The small number of highly skilled Zimbabweans coming to South Africa can apply for a general work permit, in which case they must produce a signed contract of employment and a letter from the prospective South African employer explaining why a South African citizen could not fill the position. Regulation 16(4), 2005 Immigration Regulations. Alternatively they can apply for a quota work permit which is only available to people who fall within specific skilled professions identified by the DHA, such as economists, engineers, agricultural science technicians, and a limited number of teachers (1000). See the DHAs quota work permit schedule, referred to above. Finally, Zimbabweans who live, work, and trade in the immediate border areas can obtain cross-border permits. Regulation 21, 2005 Immigration Regulations.
324 For a comprehensive overview of the options available to the government, discussed at a meeting between the DHA, UN agencies, and South African civil society groups from the NGO and academic world, see FMSP, Responding to Zimbabwean Migration in South Africa Evaluating Options, November 28, 2007, http://migration.org.za/wp-content/uploads/2008/03/zimresponses07-11-27.pdf (accessed March 18, 2008). Some of these options only cover specific groups such as facilitating the recruitment of the highly skilled.
325 S. 3(b), 1998 Refugees Act.
326 S. 35, 1998 Refugee Act.
327 No African government or court has ever explicitly used the events seriously disturbing public order phrase to declare a group of persons to be refugees. Micah Bond Rankin, Extending the limits or narrowing the scope? Deconstructing the OAU refugee definition thirty years on, UNHCR Working Paper No. 113, April 2005, http://www.unhcr.org/research/RESEARCH/425f71a42.pdf (accessed March 22, 2008).
328 Human Rights Watch, confidential interview with government official, Cape Town, October 2007.
329 News 24, SA admits Zim refugee crisis, August 2, 2007, http://www.news24.com/News24/Africa/Zimbabwe/0,,2-11-1662_2158024,00.html (accessed March 21, 2008). It reports that the deputy minister of foreign affairs said, Clearly, we must do more to see what we can do to deal with this large influx of refugees.
330 OAU Refugee Convention, Art. II.2.
331 SADC has 13 members, nine of which (Botswana, the Democratic Republic of Congo, Lesotho, Namibia, Mozambique, South Africa, Swaziland, Tanzania and Zimbabwe) have signed the protocol. http://www.sadc.int/english/documents/legal/protocols/facilitation_of_movement.php (accessed March 21, 2008). The protocol will only enter into force 30 days after two thirds of SADC member states have ratified the protocol in accordance with their national constitutional procedures and have lodged their ratification documents with the SADC secretariat. At the time of writing, only Botswana, Mozambique, and Swaziland have done so.
332 Lesotho, Malawi, Mauritius, Mozambique, Namibia, Seychelles, Swaziland, and Zambia. In addition, Zimbabwean officials have visa-free entry into South Africa.
333 DHA Media Release, South Africa and Mozambique sign a Visa Waiver Agreement, April 15, 2005, http://home-affairs.pwv.gov.za/media_releases.asp?id=229 (accessed April 9, 2008).
334 Art. 3(c) of the SADC Protocol.
335 S. 31(2)(b), 2002 Immigration Act.
336 The term is a proposal from Human Rights Watch and is not language contained in South African immigration legislation.
337 A permanent resident has all the rights of a South African citizen, as broadly set out in South Africas Bill of Rights, except for the right to vote in South African elections and the right to make use of a South African passport.
338 Ss. 26 and 27 set out the rights to housing and to health care, food, water, and social security.
339 These are the rights in sections 9-25, 27(3) and 28-35 of South Africas Bill of Rights.
340 S. 32(1)(b)(ii) provides that the minister may for good cause, withdraw such rights.
341 According to official statistics recording entry at border posts, the vast majority of Zimbabweans cross into South Africa overland. Statistics South Africa, Tourism and Migration. In December 2007 87 percent of Zimbabweans entering South Africa did so by road. Because it is impossible to enter informally through an airport, those entering South Africa through informal border crossings enter overland.
342 Current asylum procedures (Form BI 1590) require applicants to answer a series of questions on the country of which they claim to be a citizen, including capital city, major cities, currency, languages spoken, religion, political parties and leaders, neighboring countries, description of the national flag and national anthem.
343 As noted in Chapter VII, many of the problems currently faced by asylum seekers in South Africa flow from the fact that there is no computer record of their application which could otherwise be easily accessed, for example in case of mistaken arrest, and from the fact that documentation proving asylum seeker status consists of a flimsy piece of paper which easily gets lost or destroyed.
344 Ss. 29 and 3o, 2002 Immigration Act.
345 Art. 1(F) of the 1951 Refugee Convention makes clear that the only people who are not protected by the Convention are people who are known to have committed serious crimes such as war crimes or crimes against humanity. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, however, categorically prohibits the return of anyone to a place where torture is likely. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, http://www.unhchr.ch/html/menu3/b/h_cat39.htm (accessed 7 May, 2008).
346 Statistics South Africa, Main Key Indicators, http://www.statssa.gov.za/keyindicators/keyindicators.asp (accessed March 17, 2008).
347 The most recent comprehensive government survey concludes that unemployment fell to 23 percent in the third quarter of 2007. Statistics South Africa, Labour Force Survey, September 2007, http://www.statssa.gov.za/publications/P0210/P0210September2007.pdf (accessed May 31, 2008).