Home Affairs pulls asylum directive after 14 vehicles torched in Durban

The Department of Home Affairs has withdrawn a directive on asylum seeker applications that had been in force for less than a fortnight, after its refugee reception offices were overwhelmed and violence broke out in Durban and Soweto.

As The South African reported on 9 October, the department confirmed the withdrawal. The directive was issued by the office of Director-General Tommy Makhode on 28 September to give effect to a Constitutional Court judgment handed down on 7 July in the Scalabrini Centre of Cape Town matter.

The department said the directive was an operational measure and was issued without the knowledge of the Minister of Home Affairs or any other political office-bearer. Claims that it was politically motivated were, it said, categorically untrue. The department had opposed the Scalabrini case.

Its own account of what followed is blunt. Refugee reception office operations were overwhelmed within days of the directive taking effect. Home Affairs officials were placed at risk. Serious threats to public safety and order emerged. The department described these as consequences that could not have been foreseen in the court order.

With those facts now at hand, the department says it will begin a fresh process to determine the most appropriate operational approach to comply with the judgment. It reaffirmed its respect for the judiciary and the rule of law.

Thursday, 8 October, was the day the pressure broke into the open. Operations at several Home Affairs branches handling refugee and asylum applications were disrupted by anti-illegal-immigration groups calling for the directive to be withdrawn. Members of March and March confronted asylum seekers outside the Home Affairs office on Che Guevara Road in Durban.

By the afternoon the centre of Durban had come to a standstill. Several buildings housing shops owned by foreign nationals were set alight. Vehicles parked outside were torched and some shops were looted.

KwaZulu-Natal police spokesperson Colonel Robert Netshiunda said preliminary reports indicated that a group marching against gender-based violence in the CBD joined March and March at the Che Guevara Road offices after completing its own march. The group then moved down Dr Pixley kaSeme Street towards the Home Affairs offices where the anti-immigration demonstration was under way.

Netshiunda said information at this stage suggested that as they walked, one of them was allegedly assaulted by a foreign national and his leg was broken. It is not yet clear what sparked the alleged assault. The group became angry and violence erupted, resulting in the burning of at least 14 vehicles, he said.

Police responded to the escalating violence and arrested three foreign nationals in connection with the alleged assault. A lodge building and a warehouse were partially burnt. The fires were extinguished.

For a South African reader, the sequence matters in a way that a single headline cannot carry. The directive was an administrative attempt to comply with a court order the state had fought and lost. The Scalabrini judgment concerns how asylum seekers are processed, and the practical question it leaves open is capacity. Refugee reception offices are the only places in the country where a person can lodge an asylum claim. When they are overwhelmed, the queue does not disappear. It moves onto the pavement, where it becomes a public order problem for the police and a target for anyone who wants to make a point.

That is what the department now says it is going back to work out. Its statement points to a fresh process rather than a new directive, and it does not say what the interim arrangement will be for people whose applications were caught in the fortnight the directive was live.

The violence itself is a matter for the criminal law and for the courts. Arson, public violence, assault and unlawful looting are offences, and the arrests made on Thursday fall into that channel. No march, group or individual may enforce immigration law in this country. That authority belongs to the state, exercised through Home Affairs, the police and the courts, and a crowd on a street corner has no standing to decide who may stay.

The police response is part of the record. Officers moved on the escalating violence, made arrests and brought the fires under control, with a lodge and a warehouse saved from worse damage. Durban’s CBD did not stay shut.

What remains open is the one the department has now put on its own desk. The Constitutional Court has ordered a process. The department has said it will find an operationally sustainable way to run it. Between those two statements sits every person in the country waiting on an asylum decision, and every official who has to face them at the counter.