Who is a Refugee?: Twenty-Five years of Domestic Implementation and Judicial Interpretation of the 1969 OAU and 1951 UN Refugee Conventions in Post-Apartheid South Africa

Abstract:As a party to the UN Refugee Convention and the OAU Refugee Convention, South Africa is obligated to apply international refugee law when addressing the protection needs of asylum seekers in the country. The Refugees Act, 1998 encapsulates the cardinal principles of the two conventions. This essay discusses how government officials and judges have interpreted and applied these principles in asylum application cases. These cases demonstrate that officials are either not always fully conversant with the legal obligations, incumbent upon the government, arising from both international law and domestic law or purposefully ignore them. For the most part, officials tend to treat asylum seekers presumptively as economic migrants rather than bona fide refugees entitled to proper scrutiny under the criteria set out in the refugee conventions. This approach has resulted in gaps between legal protection and practical protection of refugees in South Africa and has on several occasions been criticized and rejected by courts, including the Constitutional Court of South Africa.