Pro bono at­tor­neys chal­lenge UIF ‘dis­crim­i­na­tion’

New party is needed to take SA for­ward

Saturday Star - - METRO - SIPHO K CHIPIWA

THE chaotic scenes dur­ing Pres­i­dent Cyril Ramaphosa’s Q and A ses­sion in the Na­tional As­sem­bly are a re­flec­tion of the mis­er­able state of our pol­i­tics.

In­sults, fisticuffs, name-call­ing and lewd ges­tures have all be­come par for the course in our Par­lia­ment. Even as­pi­rant porn star and Home Af­fairs Min­is­ter Malusi Gi­gaba took part in the inani­ties with a sug­ges­tive ges­ture about the size of EFF MP Mbuyiseni Nd­lozi’s man­hood.

This af­ter the lat­ter had sug­gested that Ramaphosa pro­vide Cab­i­net min­is­ters with mo­bile phones with­out cam­eras and that can­not be hacked. It was em­bar­rass­ing to watch.

Dur­ing the scuf­fles, EFF leader Julius Malema called the DA’S John Steen­huisen a “racist white boy” af­ter the lat­ter re­ferred to the EFF as “VBS loot­ers”.

The EFF has shown it­self to be a bunch of in­tol­er­ants who have noth­ing to of­fer South Africa ex­cept hooli­gan­ism and nar­row na­tion­al­ism.

Or­der was re­stored af­ter Ramaphosa’s re­sponse to ANC MP Makhubela Mashele, about how the gov­ern­ment plans to ad­dress the prob­lem of eth­nic chau­vin­ism and nar­row na­tion­al­ism.

Ramaphosa brought back a sem­blance of House deco­rum when he al­luded to the need for the ac­cel­er­a­tion of ef­forts to­wards so­cial co­he­sion and na­tion-build­ing. It must be said that, through­out its al­most 25 years in gov­er­nance, the ANC has not made a dent on so­cial co­he­sion and na­tion-build­ing as the cur­rent ra­cial po­lar­i­sa­tion shows.

What has be­come clear is that South Africa needs an al­ter­na­tive po­lit­i­cal party that will owe al­le­giance to the peo­ple of South Africa, re­gard­less of their race, cul­ture or re­li­gion.

As things stand, the ANC can­not be trusted to take the coun­try for­ward as it grap­ples with its own in­ter­nal dy­nam­ics. The DA is still seen, rightly or wrongly, as a party that rep­re­sents mi­nor­ity in­ter­ests. The Pa­tri­cia de Lille saga added to the woes of the DA. The EFF, for its part, con­tin­ues to write it­self into ir­rel­e­vance due to its brand of pol­i­tics that com­bines brash­ness, ar­ro­gance, in­tol­er­ance and nar­row na­tion­al­ism.

It is time that prom­i­nent mem­bers of the dif­fer­ent ra­cial group­ings in South Africa gather to lead a di­a­logue that will cul­mi­nate in the for­ma­tion of a po­lit­i­cal party that can, hope­fully, save the coun­try from the chaotic scenes seen in Par­lia­ment. That is what South Africa needs ur­gently.



THE De­part­ment of Labour has been ac­cused of in­fring­ing on the con­sti­tu­tional rights of asy­lum seek­ers and refugees be­cause of al­leged dis­crim­i­na­tion in pro­vid­ing ac­cess to the Un­em­ploy­ment In­surance Fund (UIF). Each month, most for­mal em­ploy­ers will deduct a por­tion of a worker’s salary to con­trib­ute to the UIF, as is legally re­quired. The fund is a life­line for thou­sands of formerly em­ployed peo­ple across the coun­try, but it ap­pears that the labour de­part­ment is pur­pose­fully ex­clud­ing asy­lum seek­ers – even those who have con­trib­uted and are en­ti­tled to un­em­ploy­ment ben­e­fits.

Now, af­ter rep­re­sent­ing an asy­lum seeker who has al­legedly been de­nied UIF ben­e­fits for two years, the the Pro Bono and Hu­man Rights Prac­tice at the law firm Cliffe Dekker Hoffmeyr is con­sid­er­ing bring­ing court pro­ceed­ings against the De­part­ment to ob­tain re­lief for a Con­golese Na­tional, Ndaye Mungedi.

This could set an im­por­tant prece­dent for oth­ers. The firm’s head of pro bono, Jac­quie Cas­sette, and her se­nior as­so­ciate Tri­cia Eras­mus told the Sat­ur­day Star they had been bat­tling with the labour de­part­ment for the bet­ter part of the year since they were ap­proached by Mungedi this year. The 35-year-old ini­tially fled from the Demo­cratic Repub­lic of the Congo af­ter the 2006 elec­tions. He claims he was per­se­cuted be­cause of his in­volve­ment in youth move­ments that ques­tioned the rul­ing gov­ern­ment. He was ar­rested, se­verely beaten and then im­pris­oned for weeks be­fore he was able to es­cape the coun­try.

Ar­riv­ing in South Africa, Mungedi was able to slowly build a life for him­self, se­cur­ing a tem­po­rary asy­lum-seeker per­mit while his ap­pli­ca­tion for refugee sta­tus was pend­ing. Such a per­mit, as leg­is­lated in Sec­tion 22 of the Refugees Act, al­lows him to work, study and re­side in South Africa, and it has been re­newed through­out his decade liv­ing in the coun­try.

For seven years, Mungedi worked for a tyre man­u­fac­tur­ing com­pany in Kemp­ton Park but was re­trenched in April 2016 for oper­a­tional rea­sons.

He has proved that he made UIF con­tri­bu­tion pay­ments through­out his time at the com­pany and as­sumed he would be able to ap­ply for UIF af­ter his re­trench­ment. But, for al­most three years, the Kemp­ton Park Labour Cen­tre has made it all but im­pos­si­ble for Mungedi to ap­ply, even though he has all of the re­quested doc­u­men­ta­tion.

Last week, Cas­sette and Eras­mus sent le­gal let­ters to the Labour De­part­ment threat­en­ing le­gal ac­tion, as Mungedi meets all the re­quire­ments stip­u­lated in the Un­em­ploy­ment In­surance

Pro bono Act (UIA). Mungedi is lucky to still have his of­fi­cial Con­golese passport, which the de­part­ment now ap­pears to ac­cept is a valid form of iden­tity doc­u­ment for the pur­poses of his UIF ap­pli­ca­tion, af­ter hav­ing ini­tially in­sisted that he pro­duce a South African iden­tity doc­u­ment. This ap­par­ently be­cause their com­put­erised sys­tem can only ac­cept 13 - digit bar coded South African iden­tity doc­u­ments. Thus, it seems that those asy­lum seek­ers with­out pass­ports are cur­rently pro­hib­ited from ap­ply­ing for UIF ben­e­fits, be­cause as asy­lum seek­ers they are not en­ti­tled to South African iden­tity doc­u­ments.

Cas­sette, Eras­mus and the Con­sor­tium for Refugees and Mi­grants in South Africa, are of the view that con­tribut­ing refugees or asy­lum seek­ers should be able to use the ref­er­ence num­bers on their Sec­tion 22 per­mits to ap­ply for UIF, asas th­ese essen­tially func­tion as “tem­po­rary iden­tity doc­u­ments”.

“In many cases, peo­ple who have been forced to flee their coun­tries will of­ten not be able to bring their ID doc­u­ments or get ac­cess to such doc­u­men­ta­tion, and the passport re­quire­ment ex­cludes asy­lum seek­ers from the sys­tem, even if they’ve been con­tribut­ing to the fund for years,” said Eras­mus.

In a writ­ten anal­y­sis from Eras­mus and Cas­sette, the pair said: “There­fore, notwith­stand­ing the recog­ni­tion of for­eign pass­ports as a valid form of iden­ti­fi­ca­tion in terms of the UIA, an in­sis­tence by the de­part­ment for refugees and asy­lum seek­ers to pro­duce iden­tity doc­u­ments in or­der to ac­cess UIF ben­e­fits is a de­nial of their rights in terms of the UIA and ul­ti­mately the Con­sti­tu­tion.

“The de­ci­sion by the de­part­ment to ex­clude refugees and asy­lum seek­ers from UIF ben­e­fits, notwith­stand­ing their con­tri­bu­tions to the Fund, is dis­crim­i­na­tory and vi­o­lates the rights of refugees and asy­lum seek­ers to ac­cess to so­cial se­cu­rity ben­e­fits and their right to just ad­min­is­tra­tive ac­tion.

“The ex­clu­sion of refugees and asy­lum seek­ers from UIF ben­e­fits has the ef­fect of im­pair­ing the dig­nity of refugees and asy­lum seek­ers, who are a vul­ner­a­ble group,” the pair con­tin­ued.

“South Africa has both in­ter­na­tional and na­tional obli­ga­tions to pro­tect the rights of refugees and asy­lum seek­ers.”

In a re­sponse from Makhosonke Buthelezi, the UIF di­rec­tor of com­mu­ni­ca­tions and mar­ket­ing, the de­part­ment con­firmed it would only pro­vide UIF ac­cess to an asy­lum seeker once they had of­fi­cially been given refugee sta­tus. Buthelezi con­firmed that the UIF did not ex­clude asy­lum seek­ers or refugees but in­sisted that “valid iden­ti­fi­ca­tion” would be nec­es­sary.

Ques­tions re­gard­ing Mungedi’s lengthy ap­pli­ca­tion process re­mained unan­swered at the time of pub­li­ca­tion.

“Mr Ndaye’s mat­ter is still un­der in­ves­ti­ga­tion. It is thus pre­ma­ture to com­ment,” Buthelezi said.

Passport re­quire­ments ex­clude asy­lum seek­ers

Tri­cia Eras­mus


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