ALERT PRO BONO & HUMAN RIGHTS - Cliffe Dekker Hofmeyr
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
15 FEBRUARY 2021
PRO BONO & HUMAN RIGHTS
ALERT
IN THIS Undocumented foreign nationals/persons
in South Africa to also benefit from the
ISSUE COVID-19 vaccine rollout: Nuances to be
alive to
On Monday 11 January 2021, while addressing the nation on
the country’s progress in combatting the COVID-19 pandemic,
President Cyril Ramaphosa (the President) announced that
government would deploy a comprehensive vaccination strategy
that aimed to reach all parts of the country.
The fight against GBV – three new bills
The scourge of gender-based violence (GBV) continues to worsen
each year, and the effect of the COVID-19 pandemic and the
national lockdown only exasperated the horrors of the widespread
nature of the GBV crisis in our country. In the first three weeks
of the national lockdown, the government’s GBV and femicide
command centre recorded over 120,000 victims.
CLICK HERE
For more insight into
our expertise and
services
PRO BONO & HUMAN RIGHTS
Undocumented foreign
nationals/persons in South
Africa to also benefit from the
COVID-19 vaccine rollout:
Nuances to be alive to
On Monday 11 January 2021, while This is in line with a statement made by
addressing the nation on the country’s the National Treasury Director-General
In an announcement progress in combatting the COVID-19 Mr Dondo Mogajane on 24 January 2021,
that drew some criticism, pandemic, President Cyril Ramaphosa during a virtual meeting between his
(the President) announced that Department and the SA National Editors
the Minister of Health, government would deploy a Forum in which Mr Mogajane said that
Dr Zweli Mkhize, initially comprehensive vaccination strategy that foreign nationals including undocumented
indicated that only aimed to reach all parts of the country. foreign nationals/persons would also
South African citizens with The President described the task as the benefit from the rollout of the COVID-19
“largest and most complex logistical vaccine: “We are in SA and we have many
identity documents would undertaking in our country’s history” and millions of undocumented people and
be entitled to receive explained, “It will be far more extensive [we can’t say they shouldn’t receive the
the vaccine. than our HIV treatment programme or vaccine as they are undocumented]. The
even our national, provincial and local demand for the vaccine is going to be
elections in terms of the number of exceeded, and we are not going to turn
people who have to be reached within a away undocumented people…”
short space of time”.
These indications that the government
Subsequent to this announcement will include undocumented persons in
there have been mixed messages from its vaccine roll out has been welcomed
the government about who will qualify by Refugee and Migrant advocacy
for a vaccine under this roll out. In an groups, some of whom were it seems
announcement that drew some criticism, already considering challenging the
the Minister of Health, Dr Zweli Mkhize, constitutionality of limiting the roll out to
initially indicated that only South African South African citizens.
citizens with identity documents would be
Perhaps in making this announcement,
entitled to receive the vaccine.
the President was mindful of the Pretoria
However, government appears to High Court’s decision just last year
have reconsidered this decision. In his declaring the exclusion of asylum seekers
address to the nation on 1 February, in and Zimbabwean and Lesotho special
what appears to be an about turn, the permit holders from the government’s
President said the government aimed to COVID-19 social relief of distress grant
make the vaccine available to all adults to be unconstitutional; or that countless
living in South Africa, regardless of their numbers of South African citizens
citizenship or residence status. He went on are themselves for systemic reasons
to state that, “We will be putting in place undocumented – and have neither a birth
measures to deal with the challenge of certificate nor an identity document.
undocumented migrants so that, as with all
other people, we can properly record and
track their vaccination history”.
2 | PRO BONO & HUMAN RIGHTS ALERT 15 February 2021
PRO BONO & HUMAN RIGHTS
Undocumented foreign
nationals/persons in South
Africa to also benefit from the
COVID-19 vaccine rollout:
Nuances to be alive to...continued
Whatever the reason for the change in Population immunity will be achieved
policy the decision is to be welcomed. when enough of the population is immune
On a more pragmatic level, Importantly, it signals a welcome departure to the virus to provide indirect protection
from an increasingly exclusionary to those who are not immune, bringing
given the purpose and
approach by our government to the the spread of the virus under control
intent behind the mass treatment of undocumented persons and importantly reducing pressure on
vaccine rollout, it seems (and foreign nationals) and accords with our healthcare system. While the actual
that it would simply not be the spirit of our Constitution. On a more level needed for such immunity is, at this
pragmatic level, given the purpose and stage, unknown, scientists have estimated
sensible to exclude a large intent behind the mass vaccine rollout, that South Africa will likely reach herd
portion of the population it seems that it would simply not be immunity once around 67% (approximately
from the Programme. sensible to exclude a large portion of the 40 million) of the population is immune.
population from the Programme.
Statistics on the number of foreign
It is clear from the President’s address nationals (documented and
that the purpose of the mass vaccination undocumented) living in South Africa
programme is to enable us to achieve vary. According to Stats SA, the number of
population immunity (herd immunity). In foreign-born people living in South Africa
his address, the President explained the in 2020 is around 3,9 million. This includes
government’s ambitious targets: “we will both the documented and undocumented.
[by phase 3 of the programme] ... have The United Nations population division
reached around 40 million South Africans, put the number at 4,2 million in 2019 –
which is considered to approximate this it said represents about 7,2% of the
herd immunity.” The President further population. According to Stats SA’s 2011
intimated: “We have always said that an census, 6,2 million foreign nationals lived
effective vaccine will be a game-changer. in South Africa, and the organisation’s
Vaccines offer to the peoples of the 2015 estimate placed the number of
world a means to control the Coronavirus undocumented migrants between 1,2 and
pandemic. A person who is vaccinated has 1,5 million.
a much-reduced chance of becoming ill
and dying from COVID-19.”
3 | PRO BONO & HUMAN RIGHTS ALERT 15 February 2021
PRO BONO & HUMAN RIGHTS
Undocumented foreign
nationals/persons in South
Africa to also benefit from the
COVID-19 vaccine rollout:
Nuances to be alive to...continued
Although there is no certainty as to Given widely reported negative
the number of undocumented foreign experiences that undocumented foreigners
To exclude all nationals/persons living in South Africa have in attempting to access health care in
today, it is a substantial number of South Africa (many face routine unlawful
undocumented persons
people. Certainly, any decision to exclude discrimination in attempting to access
would mean the exclusion undocumented persons would exclude a healthcare), coupled with provisions in our
of many innocent significant number of people. Furthermore, immigration laws which allow immigration
South African citizens, and important to emphasise, to exclude all officials wide powers to arrest and deport
undocumented persons would mean the “illegal” foreigners, much will need to be
victim to the systemic exclusion of many innocent South African done not only to build the trust of foreign
obstacles preventing them citizens, victim to the systemic obstacles nationals if they are to participate in the
from being documented. preventing them from being documented. roll out, but also train healthcare workers.
But as laudable as this announcement is, If the programme is to work as intended,
the devil always lies in the detail and at the the government needs to expeditiously
moment there is scant detail as to how the provide more information about the roll
programme will be rolled out. out of the programme and consult with
civil society in order to gain people’s trust.
Jacquie Cassette and Gift Xaba
CDH’S COVID-19
RESOURCE HUB
Click here for more information
4 | PRO BONO & HUMAN RIGHTS ALERT 15 February 2021PRO BONO & HUMAN RIGHTS
The fight against GBV – three
new bills
The scourge of gender-based violence expand the National Register for Sex
(GBV) continues to worsen each Offenders to include sex offenders beyond
In an effort to strengthen year, and the effect of the COVID-19 those convicted of sexual offences against
the existing legislative pandemic and the national lockdown children and persons who are mentally
only exasperated the horrors of the disabled; requiring that the full name,
response to GBV, widespread nature of the GBV crisis surname, identity number and sexual
President Cyril Ramaphosa in our country. In the first three offence also be included in the Register,
announced three bills weeks of the national lockdown, and providing for further regulation
that aim to better regulate the government’s GBV and femicide surrounding the reporting duty of persons
command centre recorded over who are aware of sexual offences being
the way government 120,000 victims. committed against children. This includes
departments, law a person who has knowledge, reasonable
In an effort to strengthen the
enforcement and the existing legislative response to GBV,
belief or a suspicion, and the failure to
report this to a police official will result
courts respond to cases of President Cyril Ramaphosa announced
in the person being guilty of an offence
violence against women. three bills that aim to better regulate
and liable on conviction to a fine or
the way government departments, law
imprisonment for a period not exceeding
enforcement and the courts respond to
five years.
cases of violence against women.
Criminal and Related Matters
These three bills were introduced by
Amendment Bill
the Minister of Justice and Correctional
Services in the National Assembly in This bill was introduced into Parliament
August 2020. All three bills are currently on 28 August 2020. It aims to amend
before the National Assembly. Below are the Magistrates’ Courts Act and the
summaries of the most notable changes Superior Courts Act to provide for the
brought about by each bill. appointment of intermediaries and the
giving of evidence through intermediaries
Criminal Law (Sexual Offences and
and audio-visual links in proceedings on
Related Matters) Amendment Act
application by any party to proceedings
Amendment Bill
other than criminal proceedings.
The bill aims to amend the Criminal Law Provisions will also be added to ensure
(Sexual Offences and Related Matters) that perpetrators of GBV are not released
Amendment Act (SORMA). It was on bail before their first appearance in the
introduced to Parliament on 19 August lower courts.
2020, and aims to make several changes -
The bill also aims to introduce changes
the most notable of which are to recognise
to the CPA to further regulate the giving
sexual intimidation as an offence; to
of evidence via closed-circuit television
or similar electronic media and the right
5 | PRO BONO & HUMAN RIGHTS ALERT 15 February 2021PRO BONO & HUMAN RIGHTS
The fight against GBV – three
new bills...continued
of a complainant in a domestic related The bill also provides for the online
offence to participate in bail and parole submission of protection orders and
Our government’s proceedings. This provides survivors or the addition of the protection order to a
response to GBV has the relatives of a deceased victim the central depository that stores other orders
opportunity to be heard before the court and cases against the same person to
resulted in significant or the parole board before any decision prevent perpetrators from hiding their past
developments in our is made. In addition to allowing for an histories of domestic violence.
criminal law, in addition opportunity to be heard, being able to
Our government’s response to GBV has
give evidence via closed-circuit television
to the notable 2018 resulted in significant developments
also provides the victim with the added
amendment of the Criminal protection of not having to be in the same
in our criminal law, in addition to
the notable 2018 amendment of the
Procedure Act to do away room as the perpetrator.
Criminal Procedure Act to do away with
with prescription in the Domestic Violence Amendment Act prescription in the context of criminal
context of criminal charges This bill was introduced to Parliament on
charges for sexual offences. While these
for sexual offences. While 7 September 2020, and seeks to make
are all welcomed developments, our civil
law lags behind. In line with our core
these are all welcomed five overarching changes which includes
focus on women’s rights, our practice
developments, our civil law the broadening of the domestic violence
is currently pursuing what we believe
definition to include elder abuse, coercive
lags behind. behaviour, controlling behaviour and
to be the meaningful and significant
development of our civil law in relation to
exposing or subjecting children to listed
sexual offences, and we will continue to
behaviour. This is turn recognises these
meaningfully engage in further areas in
forms of domestic violence and therefore
need of development in our civil law. Our
widens the scope of the application of the
practice will also keep a close eye on the
Domestic Violence Act.
progression of these three bills as well as
further significant developments in both
the criminal law and the civil law space as
they pertain to GBV and sexual offences.
Brigitta Mangale, Kirsten Felix and
Akhona Mgwaba
6 | PRO BONO & HUMAN RIGHTS ALERT 15 February 2021OUR TEAM
For more information about our Pro Bono & Human Rights practice and services, please contact:
Jacquie Cassette Tricia Erasmus Gift Xaba
National Practice Head Senior Associate Associate
Director Pro Bono & Human Rights Pro Bono & Human Rights
Pro Bono & Human Rights T +27 (0)11 562 1358 T +27 (0)11 562 1089
T +27 (0)11 562 1036 E tricia.erasmus@cdhlegal.com E gift.xaba@cdhlegal.com
E jacquie.cassette@cdhlegal.com
Brigitta Mangale
Senior Associate
Pro Bono & Human Rights
T +27 (0)21 481 6495
E brigitta.mangale@cdhlegal.com
BBBEE STATUS: LEVEL TWO CONTRIBUTOR
Our BBBEE verification is one of several components of our transformation strategy and we continue to seek ways of improving it in a meaningful manner.
PLEASE NOTE
This information is published for general information purposes and is not intended to constitute legal advice. Specialist legal advice should always be sought
in relation to any particular situation. Cliffe Dekker Hofmeyr will accept no responsibility for any actions taken or not taken on the basis of this publication.
JOHANNESBURG
1 Protea Place, Sandton, Johannesburg, 2196. Private Bag X40, Benmore, 2010, South Africa. Dx 154 Randburg and Dx 42 Johannesburg.
T +27 (0)11 562 1000 F +27 (0)11 562 1111 E jhb@cdhlegal.com
CAPE TOWN
11 Buitengracht Street, Cape Town, 8001. PO Box 695, Cape Town, 8000, South Africa. Dx 5 Cape Town.
T +27 (0)21 481 6300 F +27 (0)21 481 6388 E ctn@cdhlegal.com
STELLENBOSCH
14 Louw Street, Stellenbosch Central, Stellenbosch, 7600.
T +27 (0)21 481 6400 E cdhstellenbosch@cdhlegal.com
©2021 9746/FEB
PRO BONO & HUMAN RIGHTS | cliffedekkerhofmeyr.comYou can also read
