Access to justice for non-citizens : a constitutional analysis

[摘要] ENGLISH ABSTRACT: The rights entrenched in the Bill of Rights in South Africa's final Constitution are, with a fewexceptions, guaranteed to citizens and non-citizens alike. South Africa has seen an influx ofmigrants, asylum seekers and refugees since 1994, and this migratory movement has posedsignificant challenges to the post-apartheid legal order. This thesis is concerned with theState's implementation of its constitutional obligations to protect and guarantee theconstitutional rights of everyone within the borders of South Africa.It is important that these constitutional obligations do not remain mere aspirations but shouldtranslate into reality. Most non-citizens living in South Africa face numerous barriers toaccessing justice and the processes that could enable them to realise their rights. The thesisexamines the concept of 'access to justice and investigates a number of obstaclesencountered by different categories of non-citizens – such as refugees, asylum seekers anddocumented and undocumented migrants – in trying to access justice and to realise theirrights.Against this background, arrest, detention and deportation under the Immigration Act andRefugees Act are examined because these processes have often been abused by State officialsto prevent non-citizens from accessing the rights and protections guaranteed in these Acts andthe Constitution, and to frustrate the implementation of court orders vindicating the rights ofnon-citizens. The application of the Immigration and Refugees Acts is discussed through thelens of sections 12(1), 33, 34 and 35(2) of the Constitution which ensure that arrest, detentionand deportation are done in a lawful and procedurally fair manner, as opposed to thearbitrariness that most non-citizens experience on a daily basis.Secondly, the thesis also examines access to justice for non-citizens in the context ofxenophobia and bias based crimes. The State has in the past failed to respond in a coordinatedand timely fashion in the face of violent manifestations of xenophobia. Against thisbackground, the State's obligation to protect non-citizens from violence from either public orprivate sources in terms of section 12(1)(c) of the Constitution is discussed and analysed. Therole, accessibility and effectiveness of Equality Courts are also examined in light of the Promotion of Equality and Prevention of Unfair Discrimination Act and the cases that werebrought before them emanating from xenophobic incidents.The thesis concludes with proposals on areas which require better implementation of existinglaws; and areas in which legislative reform is needed.

[发布机构] Stellenbosch University