2 nd SALGA and Dullah Omar Institute Colloquium :

1. 2ndSALGA and Dullah Omar Institute Colloquium: Theme “Addressing inequality through inclusive, sustainable and viable local governments”, 11-12 March 2019, Durban, South Africa. Sub-theme: Spatially Just, Inclusive and Transformative Cities Sub-theme: Social Justice. Prof. Oliver Fuo oliver.fuo@nwu.ac.za 11-12 March 2019

2. Title: Enhancing inclusiveness in South African cities through local indigent policies: A case for permanent residents Main argument: The mandatory requirement for citizenship in accessing free basic services in the indigent policies of specific municipalities exacerbates socio-economic exclusion and is unconstitutional to the extent that these policies exclude foreigners permanently resident in their jurisdictions. It is argued that such exclusion can neither be justified in terms of the internal or external limitation clauses found in the Constitution.

3. IDEALS IN SDGs 2015 • Significant portion of SDGs directly relate to ideal of scoio-economic inclusion • Mandate of cities in SDG 11

4. Trumpism and flourishing of right-wing parties

5. Msimanga embraces scathing report blaming foreigners for lack of Gauteng resources – by Eric Naki, The Citizen - 25.9.2018 01:59 pm

6. “Compounding its problem of limited resources, Gauteng province continued to feel the strain on its public social services due to an influx of international migrants who entered the country’s economic hub through the country’s porous borders. A new report found that Gauteng was not only saddled with having to accommodate internal migrants from the rest of the country, but it was getting overwhelmed by an influx of international migrants who have to depend on its health and education resources. The scathing report is a joint investigation by the National Council of Provinces (NCOP) and Gauteng Provincial Legislature (GPL) into the impact of migration on service delivery in Gauteng. The probe found that 47% of international migrants settled in the city of Johannesburg without valid documentation and placed a strain on its limited resources. Gauteng’s population is known to increase at the highest rate in the country due to an influx of migrants from other provinces and foreign immigrants into the urban areas including squatter camps.” - https://citizen.co.za/news/south-africa/2013700/msimanga-embraces-scathing-report-blaming-foreigners-for-lack-of-gauteng-resources/ (26-09-2018)

7. Herman Mashaba

8. Policy position on housing??

9. Foreigners must go home – King Zwelithini (2015)

10. SOUTH AFRICAN CONTEXT - IMMIGRATION • South Africa: a home to foreigners! • Persistence of in-migration to especially Gauteng after 1994 • About 35% of the population of Johannesburg is foreigners! • In-migration increases pressure on service delivery – health services, housing etc.

11. INTERNATIONAL LAW ? • Article 2(2) of the ICESCR - State parties to guarantee that socio-economic rights will be exercised without any kind of discrimination such as national origin or any other status • Article 2(3) ICESCR empowers developing countries to determine the extent to which they would guarantee socio-economic rights for non-nationals • General Comment 20 on Non-discrimination on Economic Social and Cultural Rights (2009) sets out proportionality standard that must be met – see pars 13-14 • ACHPR Guidelines (2011) – Proportionality requirement stressed

12. SA IMMIGRATION ACT 13 OF 2002 • The admission of foreigners to, their residence in and departure from South Africa, is regulated by Immigration Act 13 of 2002 • a system of immigration control that “is performed within the highest applicable standards of human rights protection” and one that prevents and counters xenophobia • The rights and obligations of foreigners (temporary residents) are determined by their status and specific conditions attached to their permits upon issuance, extension or renewal (s 43 of the Immigration Act). • Permanent residents have “all the rights, privileges, duties and obligations of a citizen, save for those rights, privileges, duties and obligations which a law or the Constitution explicitly ascribes to citizenship” (s 25(1) of the Immigration Act).

13. SOUTH AFRICA’S COMMITMENT TO SOCIAL JUSTICE: • Constitution of the Republic of South Africa, 1996 & • Local Indigent Policies

14. Commitments in the Constitution • Constitutional values • The right of “everyone” to access housing, water, social assistance etc. • Justiciable obligations on all spheres of government • Obligations on spheres of government differ according to their legislative and executive areas of competences Government of the Republic of South Africa v Grootboom and Others (2000) • the right to “access” belongs to everyone • Does not require government to provide social goods to all: remove (legal and administrative) obstacles and only provide for those in desperate need

15. Commitments in municipal indigent policies NIP 2006 • Further give effect to constitutional socio-economic rights and cater for the poorest of the poor • Free basic water (25 litres per person per day), free energy service (50kWh of electricity per household per month with prepayment meter), free refuse removal service/sanitation, basic housing assistance • Municipalities to develop context-specific policies • Prohibits discrimination on any ground listed in the Constitution • Various targeting mechanisms – including universal provision! • Funded from different sources – national equitable allocation, cross-subsidization and own revenue

16. Desktop review of indigent policies of 10 municipalities • Citizenship as a requirement: Tswelopele Local Municipality; Johannesburg Metro; Tshwane Metro; and eThekwini Metro • South African ID Card as a requirement: Mangaung Metro and City of Cape • In the City of Mbombela and Buffalo Metro, applicants must be citizens or show that they have “recognised refugee status” – not clear on PRs

17. Desktop review cont. • Ekurhuleni Metro, all indigent households quality for the level of free basic services prescribed in the NIP while a broader range of services can only be provided to citizens and permanent residents. • In Nelson Mandela Bay Municipality, all residential property with a value of R100 000.00 and less are automatically granted indigent assistance subject to certain verification processes. NB: Until 2017, the City of JHB provided free basic water services to all households in the City subject to a block-tariff system

18. Jurisprudence from Khosa and Others v Minister of Social Development 2004 The Court held that: “The Constitution vest the right to social security in “everyone”. By excluding permanent residents from the scheme for social security, the legislation limits their rights in a manner that affects their dignity and equality in material respects. Dignity and equality are founding values of the Constitution and lie at the heart of the Bill of Rights. Sufficient reasons for such invasive treatment of the rights of permanent residents has not been established. The exclusion of permanent residents is therefore inconsistent with section 27 of the Constitution.” @ par 85 • The CC Declared relevant provisions of the Social Assistance Act unconstitutional and ordered the reading-in of the word permanent resident

19. Khosa Jurisprudence: Ratio decidendi • Exclusion of PRs reduces them to beggars affecting their right to human dignity and equality • Amounts to unfair discrimination on an unlisted constitutional ground – nationality • The rights in ss 26 and 27 guarantee entitlements to “everyone” as opposed to s 25(5) which specifies citizens • The Constitution envisages a caring society – as such efforts must be made to ensure the basic needs of all are met • The Immigration Act of 2002 grants permanent residents the same rights, privileges and duties like citizens except those expressly ascribed by legislation or the Constitution to citizens • PRs have made SA home of choice and contribute to the economy

20. Khosa Jurisprudence: Ratio decidendi cont. • Lack of sufficient evidence to support the argument that inclusion of PRs will impose an impermissibly high financial burden on the state • PRs are a vulnerable minority group without political power and deserve constitutional protection • Alternative mechanisms could be established to screen and exclude immigrants who might become a burden to the state

21. CONCLUDING REMARKS Exclusion of PRs in municipal indigent policies furthers social exclusion Exclusion is illegal and unconstitutional viz: • Municipal indigent policies further give effect to the socio-economic rights in especially ss 26-27 of the Constitution • Exclusion of permanent residents in the 4 municipalities above is contrary to the jurisprudence of the Constitutional Court in Khosa • 2017 policy shift of City of JHB on FWS violates the principle of non-retrogression and cannot not pass the proportionality test required

22. The relevant provisions of the indigent policies of Johannesburg Metropolitan Municipality, eThekwini Metropolitan Municipality, Tshwane Metropolitan Municipality and Tswelopele Local Municipality that prescribe citizenship as a mandatory condition for accessing free basic services are unconstitutional and invalid. They should therefore be amended to ensure constitutional compliance and allow indigent permanent residents to receive free basic services. It is further submitted that it is necessary for the indigent policies of the City of Mbombela and Buffalo Metropolitan Municipality to be amended to expressly provide that permanent residents are eligible to receive free basic services. At the moment, they cater only for citizens and refugees.

23. Thank you!