The main issue was the right of refugees and asylum-seekers in South Africa to earn a living by way of self-employment in the form of trading in spaza or tuck-shops. The applicants sought an order declaring that they have the right to apply for new business or trading licenses, or renew existing business or trading licenses, in terms of section 8 of the Lebowa Act or for a licence in terms of section 2(3)(b) of the Businesses Act; and to apply for and renew written consent to operate tuck-shops or spaza shops in terms of the Musina Land Use Scheme.
The applicants were registered non-profit organizations which represented the interests of Somali and Ethiopian nationals, lawfully present for the time being in South Africa as refugees or asylum seekers. The respondents who opposed the application were the Minister of Police, the Minister of Home Affairs, The National Police Commissioner, the Provincial Commissioner of Police, Limpopo Province and the Standing Committee for Refugee Affairs.
The court considered Section 22 of the Constitution, which protected the right of citizens to ‘choose’ their trade, occupation or profession freely, and held that it did not, as contended for by the respondents, prevent refugees from seeking employment. The court also pointed out that s 27 of the Refugees Act entitles a refugee to seek employment. The Business Act and the Lebowa Act stipulated only that no person shall carry on any business in the area of a licensing authority, unless he or she was the holder of a licence, and there was no express or implied prohibition in any of the applicable legislation of foreign nationals applying for a licence or permit. Nonetheless, the frustrations faced by the applicants was recognised by the court.
Summary: Asylum seekers and refugees’ entitlement to apply for licences to trade in spaza and tuck-shops – no blanket prohibition against self-employment either in terms of the Constitution or applicable legislation – s 22 of the Constitution not a bar – right to dignity implicated – vulnerable position of asylum seekers and refugees considered – South Africa’s international obligations noted.
The police in Limpopo had made coordinated efforts to shut down businesses in Limpopo that were operating without the requisite business permits. At least 600 businesses of traders were closed down. The SAPS confiscated equipment and stock used by traders and arrested traders and their employees. Many of these traders were refugees and asylum seekers from Somalia and Ethiopia. The police had been recorded as telling the traders that foreigners are not allowed to operate businesses in South Africa, and that asylum seeker and refugee permits did not entitle them to operate a business. The applicants asserted that the police often extorted bribes and targeted businesses run and owned by foreigners, reflective of xenophobic tendencies that existed at the time. They also stated that they were frustrated by municipal officers in their attempts to legitimise their positions as traders.
The court gave substituted orders, but upheld the appeal. The court declared that refugees and asylum seekers had the right to apply for the relevant licences, and that closure of businesses operated by refugees and asylum seekers in terms of valid permits is unlawful and invalid.
The court found no blanket prohibition against asylum seekers and refugees seeking employment, and no restrictive legislation or conditions in place that prohibited foreign nationals from being granted spaza or tuck-shop licences. The applicants conceded that parts of the order(s) sought were either too broad or unenforceable.