REPORTS

II . 


 REPORT OF THE AD HOC JOINT COMMITTEE ON PROBING VIOLENCE AGAINST 

FOREIGN NATIONALS, DATED 19 NOVEMBER 2015 

1. Introduction



The Ad Hoc Joint Committee on Probing Violence Against Foreign Nationals (the Committee)
was established by the National Assembly (NA) on 6 May 2015 and by the National Council of
Provinces (NCOP) on 7 May 2015 in terms of Joint Rule 142. The Committee consisted of 11
members of the National Assembly and 9 members of the National Council of Provinces as
follows:



National Assembly

Name of Member

Political Party

Ms. NR Bhengu

African National Congress (ANC) Co-Chairperson

Ms. ZS Dabuzana-Dlamini

ANC

Ms. L Dlamini

ANC

Mrs. TE Kenye

ANC

Mr. L Ramatlakane

ANC

Mr. DM Gumede

ANC

Adv. LKB Mpumlwana

ANC

Mr. SC Motau

Democratic Alliance (DA)

Mr. RWT Chance

DA

Mr. MA Mncwango

Inkatha Freedom Party (IFP)

Mr. NLS Kwankwa

United Democratic Movement (UDM)

































National Council of Provinces

Name of Member

Political Party

Province

Mr. TC Motlashuping

ANC - Co-Chairperson

North West

Ms. TK Mampuru

ANC

Limpopo

Ms. GM Manopole

ANC

Northern Cape

Ms. LC Dlamini

ANC

Mpumalanga

Mrs. LL Zwane

ANC

Kwazulu-Natal

Mr. SJ Mohai

ANC

Free State

Ms. T Wana

ANC

Eastern Cape

Mr. ER Makue

ANC

Gauteng

Ms. B Masango

DA

Western Cape

























2. Terms of Reference



In accordance with the resolutions of the two Houses, the mandate of the Committee is to:



i. Probe into the incidence of violence against foreign nationals and related matters while
incorporating into its work the report and recommendations of the previous Task Team of
Members of Parliament Probing Violence and Attacks on Foreign Nationals in 2008.
ii. Make recommendations where applicable.
iii. Exercise those powers as set out in Joint Rule 32 that may assist it in carrying out its task.
iv. Report to the Houses by the end of August (later revised to 20 November 2015).




3. Programme of Action adopted by the Ad Hoc Joint Committee



The Committee met at Parliament on 25 June 2015 to discuss its mandate and adopt a
programme of action. The Committee was briefed and considered the report and
recommendations on the 2008 Task Team of Members of Parliament Probing Violence and
Attacks on Foreign Nationals. This report also dealt with violence against foreign nationals in


the Western Cape and the Committee, thus resolved to meet with stakeholders in the Western
Cape.



The Committee conducted oversight visits to affected areas in Kwazulu-Natal (6-8 July),
Gauteng (8-11 July) and the Western Cape (4 August) where it met with inter alia, the South
African Police Service (SAPS), the Offices of the Premier in the three provinces,
representatives of foreign nationals, government departments and civil society organisations
as well as the Inter Ministerial Committee on Migration established by the Presidency. The
Committee called for and considered a number of oral and written submissions from these
stakeholders and interested parties.



During its oversight visit of areas in KwaZulu-Natal, the Committee was invited to attend a
roundtable discussion at the 37th Southern African Development Community (SADC)
Parliamentary Forum outside Durban. In this forum, the issue of attacks against foreign
nationals was raised from a regional perspective. The main aim of the SADC-PF was to
provide a platform for parliaments and parliamentarians to promote and improve regional
integration in the SADC region through parliamentary involvement and it is striving towards
transformation into a fully-fledged regional Parliament.



The Committee realised that the nature of its work would require a longer period than initially
indicated and resolved to request Parliament to extend the deadline for the submission of its
report. It submitted a draft interim report at the end of August 2015 to this effect and an
extension was granted until the end of September 2015. The Committee was, however, unable
to finish its work and report by this date. It was therefore revived by both Houses on 4
November and a report deadline was set for 20 November 2015.



4. Oversight visits



The Committee conducted oversight visits to affected areas in KwaZulu-Natal and Gauteng
from 6 to 11 July 2015 and the Western Cape on 4 August 2015. During its visits to Kwazulu-
Natal, Gauteng and the Western Cape, the Committee engaged with a broad range of
stakeholders.



4.1 KwaZulu-Natal Oversight

4.1.1 EThekwini Municipality



The Committee first engaged with the EThekwini Metropolitan Municipality, which reported that
the violence against foreign nationals in the Municipality was first reported on 30 March 2015.
The violence was sparked by a labour dispute alleging that foreign nationals were given
preference of employment over local employees at Jeena’s Warehouse in Isipingo. Incidents
of violence then broke out in Malukazi, Umlazi, KwaMakhutha, Chatsworth, Clare
Estate/Sydenham, Greenwood Park, Verulam and KwaMashu. Those affected were mainly
from the Democratic Republic of Congo (DRC), Zimbabwe, Malawi, Mozambique, Ethiopia and
Somalia. South African nationals who rented out their properties to foreign nationals were also
affected.



The EThekwini Municipality, together with the KwaZulu-Natal (KZN) Provincial Government
responded by establishing three shelters: at Isipingo which took approximately 280 foreign
nationals; Chatsworth with 1000 foreign nationals; and Shannon Drive in Greenwood Park with
196 foreign nationals. At the height of the tension, around 9000 persons were being cared for
at shelters but no significant health issues were reported. The shelter at Greenwood Park was
relocated to Phoenix at Univale Sports due to a large group of people reported to be displaced
at the Phoenix Police Station. Most of the people in camps were not directly attacked but
sought shelter for fear of further violence. The displaced people were provided with
humanitarian services such as food, clothes and medical services supplied by Government


and non-governmental organisations (NGOs). In order to normalise the situation, the South
African Police Service (SAPS) presence was increased.



4.1.2 KwaZulu-Natal Provincial Government



The KZN Provincial Government reported to the Committee that a voluntary repatriation and
reintegration process was undertaken. A total of 4014 foreign nationals were repatriated to
Malawi, Zimbabwe, Tanzania and Mozambique. There were 1222 immigrants who were
reintegrated back into their communities after community engagement and dialogues
facilitated by Government.



The Provincial Government added that successful repatriation and reintegration led to the
closure of the Phoenix shelter on 29 April 2015 and closure of the Isipingo shelter on 6 May
2015. The Chatsworth shelter remained open for longer with people mainly from Burundi and
DRC. Due to the current situation in their countries, they were more in favour of reintegration.
The United Nations High Commissioner for Refugees (UNHCR) distributed vouchers to the
displaced people at the Chatsworth shelter to assist with reintegration for a period of two
months and with the payment of rent and food. Government announced the intention to close
the Chatsworth shelter on 30 June 2015. There were some immigrants who opted to be
resettled in various provinces such as the Eastern Cape, Western Cape and Gauteng while
waiting for the UNHCR to repatriate them to other countries. Those who reintegrated into
various wards in Durban did not want to register their location for fear of victimization.



The Provincial Government reported conducting a march against xenophobia. It was reported
in the media that the attacks against foreign nationals were sparked by King Zwelithini at
Pongola. The centre of the violence, however, was Isipingo, which is approximately 400
kilometres from Pongola, where no violence took place. The King thereafter made another
address in Durban urging around 20 000 people against attacking foreign nationals.



The Premier of KZN was reported to have established a Special Reference Group on Migration
and Community Integration in KZN. The focus of the Reference Team is to conduct
representative consultations, collate submissions and recommendations on the recent attacks
and to advise the Premier on the potential for joint implementation of programmatic responses
to the prevailing situation. The Reference Group’s final report was due on 31 October 2015 but
had not been made public at the time of completing this report.



4.1.3 Department of Home Affairs (DHA)



The DHA in KZN reported that their role at the shelters was to register and verify the status of
each person. Undocumented persons were encouraged to make use of the voluntary
repatriation process. The DHA liaised with Embassies and Consulates on the removal of
persons who wished to be repatriated. The biometric details of all undocumented migrants
were taken and of those people who had lost their documentation, had them replaced.



The DHA also indicated that changes in legislation were aligned with international standards,
which, although challenging, had shown improvements in implementation. Extensive surveys
of border areas and on the causes of migration continued to be conducted. This resulted in
recommendations to consider ways of formalising informal crossings for persons with permits
valid and within a particular radius of the borderline. These areas would be policed by the
communities themselves (who would lose this privilege if it was abused).



4.1.4 Durban Chamber of Commerce (DCOC)



The DCOC and Industry reported that they deplored the attacks against foreign nationals. This
had impacted on the tourism industry in the province, resulting in an estimated 70 percent
cancellation in hotel bookings, especially by tourists from the European Union and China. An


international Methodist Church conference was cancelled and there had been a significant
impact on inner city businesses.



The DCOC indicated that it took the lead in making several statements condemning violence
and helped coordinate donation support to shelters such as food, clothes and support for
women. A planning Imbizo was also held to address shortfalls in the informal trading economy.
The informal economy consisted largely of low profit goods, however, there was high
competition. As a result the DCOC was expanding initiatives in the province to support small
businesses.



The use of generalised terminology such as xenophobia may have increased the negative
impact on tourism after the violence since it implied a broadly prevalent prejudice and
violence. The DCOC was asked to provide information to the Committee on labour and dispute
resolution as well as information on the relationship between small businesses and large
businesses.



DCOC indicated that businesses in South Africa need to be competitive on a global as well as
a local scale. Labour costs in the country are known to be comparatively high and with
relatively low productivity. The Chamber was consulting with businesses, including small
business on how to improve productivity. The informal business sector is, however, the new
norm; which made formal interventions as well as identification of what triggered violence in
the sector more difficult.



4.1.5 House of Traditional Leaders (HTL)



Provincial representatives of the House of Traditional Leaders (HTL) engaged with the
Committee indicating that they did not agree with the attacks and confirmed that the province
needed peace and unity. There were, however, no attacks on foreign nationals in rural areas.
It was reported that the NHTL worked closely with the municipalities and that in rural areas
there were no problems with foreign nationals. If a foreign national wanted to open a business,
an agreement was reached between the owner of the property and the foreign national.
Foreign nationals were introduced to how the locals live through structures such as the
traditional councils.



According to the HTL, the entry point into the rural areas were via the Induna and a community
meeting would be called when a person was allocated a site. The foreign nationals were then
part of the community and they abided by the norms and culture. The terms of the contract
between the local and the foreign nationals were known to the community. It was, however,
reported that the borders were not managed properly. It was reiterated that after the attacks,
the King held an Imbizo and called for peace and for the Zulus to protect the foreign nationals.
In the past there had been factional wars and political violence and the King had always
preached in favour of peace.



4.1.6 KZN Special Reference Group on Migration and Community Integration (SRG)



Subsequent to the outbreak of violence in KZN, the Committee was informed that the Premier
of the Province established the SRG to conduct representative consultations, collate
submissions and recommendations on recent attacks and to advise the Premier on the
potential for joint implementation of programmatic responses to the prevailing situation. The
SRG was comprised of seven experienced independent professionals and Chaired by Judge
N. Pillay. The SRG indicated that their functions included to:

. undertake a comprehensive assessment of the reported causes of socio-economic impact
associated with the attacks
. undertake an assessment and consideration of the successes and shortcomings of past and
ongoing initiatives and recommendations if any



. facilitate inter- and extra-governmental consultations by soliciting proposals and
submissions from affected and interested parties and communities and to outline immediate
and long-term solutions in response to violent incidents.




The SRG had engagement with a broad range of stakeholders through focus groups,
consultations, interviews, fact finding missions, site visits, written submissions and internal
meetings. Areas covered at the time of briefing the Committee were: eThekwini, KwaDukuza,
KwaDambuza, uMgungundlovu, Amajuba and uMzinyathi.



Some of the issues encountered by the SRG were: the need for better implementation and
formulation of a migration policy; a rise in competition for scarce resources; the presence of
negative perceptions, prejudices and stereotypes; criminality; opportunistic violence and
crime; unreconciled trauma and legacies of violence; a gap in the comprehensive response
strategy in advance of the outbreak of violence and a lack of integration between foreign
nationals and local communities.



The final report of the SRG was due for submission to the Premier by the end of October 2015
and the Committee requested that it be submitted to Parliament once it was available.



4.1.7 Council of Churches, Red Cross International and Alindad Foundation Disaster
Response



The Committee received briefings by three organisations assisting migrants in the aftermath of
the violence. The Council of Churches (CoC) in KZN indicated that on 6 April after initial
reports of violence, they mobilised ministers to conduct pastoral visits to the shelters to offer
spiritual support. They discovered that four immigrant leaders had been abducted in Umlazi
and they assisted in their release. Food, clothing and blankets and other aid from churches
and NGOs were provided to those seeking refuge in shelters. The CoC participated in protests
and in a provincial march against xenophobia. They also provided opportunities for psycho-
social counselling and would be assisting in creating community dialogue.



Red Cross International (RCI) indicated that they had ensured hygiene in shelters and
provided psycho-social support, food and support for young children. RCI were on site around
the clock at all shelters since the attacks had started in Isipingo. Funding for food had run out,
however, assistance was provided by religious groups and local communities. Local Voluntary
Medical Response had also assisted for 45 days with various minor health issues in the
Chatsworth shelter.



Alindad Foundation Disaster Response (international) which has, for many years, been a
member of the provincial disaster response was activated to assist on 29 March. Foreign
nationals found outside police stations were provided immediate food support and in
consultation with the KZN Members of the Executive Council (MEC) were then moved to
tented camps erected in Isipingo and Phoenix. Blankets and mattresses were provided and the
camps grew over time to around 3000 migrants. Local communities had also organised their
own programme to feed migrants for around 25 days. It was indicated that better trained camp
and disaster management personal were needed to coordinate food donation and disaster
response communication with NGOs on assistance needed.



4.1.8 Umlazi Police Station



The Umlazi Police Station confirmed to the Committee that the workers at Jeena’s Warehouse
in Isipingo were engaged in a labour dispute which started in November 2014. The workers
were represented by the Professional Transport and Allied Workers Union (PTAWU) and the
matter ended at the Commission for Conciliation, Mediation and Arbitration (CCMA). It was
reported that 27 permanent workers and 30 casual workers had stayed away from work. The


management of Jeena’s Warehouse then employed casual workers in place of the striking
workers.



Umlazi SAPS reported that on 30 March 2015, the striking workers and community members
barricaded the Prince Mcwayizeni Road near Jeena’s Warehouse. The South African National
Civic Organisation (SANCO) leadership including the KZN Provincial Secretary, and Umlazi
Chairperson were among the demonstrators at the store. SANCO distributed SANCO T-shirts
to demonstrators. While the police were focused on the demonstrators, there were reports that
foreign nationals were being assaulted in their rented residential homes at Emalandeni
Informal Settlement.



SAPS further reported that there was a group of suspected South African males who were
targeting foreign nationals in Isipingo Central Business District (CBD). The suspects looted
shops and salons owned by foreign nationals. Some of the foreign nationals who were
targeted ran to a rented house near Folweni Taxi Rank where they retaliated by throwing
stones back at the assailants. The stones thrown by foreign nationals damaged five taxis. The
Folweni taxi drivers and conductors joined in throwing stones at the foreign nationals and
vehicles that were parked in the yard of the house occupied by the foreign nationals were
damaged. It was reported that three foreign nationals sustained injuries. An unidentified
vehicle drove past the house and shots were fired towards the house but nobody was injured.



SAPS reported that a group of 120 foreign nationals ran to the police station while police were
busy at Isipingo CBD. The police escorted some foreign nationals from the CBD to Isipingo
Police Station and some of them fled there on their own. The Isipingo Police Station sheltered
300 foreign nationals overnight due to claims that they feared for their safety in residential
areas.



SAPS reported that on 31 March 2015 workers continued to strike outside Jeena’s
Warehouse. The police received information that the protesting workers were responsible for
attacking foreign nationals on 30 March 2015. SAPS reported that on the same day the KZN
MEC for Transport, Community Safety and Liaison and the EThekwini Municipality Mayor
visited Isipingo Police Station to address the issue of displaced foreign nationals. A decision
was taken to place the foreign nationals at a temporary shelter at Isipingo Soccer Fields and
later at the Chatsworth Shelter.



The Umlazi SAPS Cluster Commander and the SANCO Provincial Secretary were consulted
and the following was established:



i. The protest action at Jeena’s Warehouse was organised by SANCO in support of the
striking workers and not the PTAWU. However, SANCO stated that it was a coincidence
that their protest action at the store in support of the striking workers coincided with the
attacks against foreign nationals. SANCO declared that it was against the attack.
ii. The workers at Jeena’s Warehouse were fighting for registration as full time employees.
There were workers who had worked at the store for 18 years but were still employed as
casuals.
iii. The workers approached SANCO for their assistance and SANCO wrote a letter to Jeena
Warehouse management requesting a meeting, but the management refused to honour
SANCO’s request. SANCO then mobilised community members to support the striking
workers.
iv. It was alleged that South Africans who were unable to speak and understand English were
reported to have been replaced with foreign nationals.
v. The police were not able to establish if any foreign nationals were working at Jeena’s
Warehouse. The Department of Labour visited the store prior to the incident of 30 March
2015 but could not find proof that foreign nationals were working there.
vi. SANCO alleged that on 30 March 2015, protesters spotted a foreign national standing next
to Jeena’s Warehouse with South African Identity Documents.





vii. According to SANCO, a fraudulent ID that was dropped by a foreign national was the
trigger of the violence at Jeena’s Warehouse, which occurred at the same time that a
labour dispute was taking place at the Store. A group of about 30 protestors chased this
foreign national towards the Isipingo CBD. The person who had the alleged fraudulent ID
was not arrested. SANCO further reported that there is a Caltex garage in Isipingo which
had replaced all South Africans with foreign nationals. The foreign nationals were paid
R300 per week instead of R2000 per week that should be paid to locals. The police could
not verify the allegations of the ID books.
viii. The Umlazi police believed that the following could have led to the violence:


. Animosity between some South Africans and foreign nationals relating to business
competition.
. The shooting of Ms. A. Dlamini by a foreign national.
. Criminality on the part of South Africans.
. Allegations that foreign nationals are dealing drugs, and buying and selling stolen
goods.
. Allegations that foreign nationals were taking jobs from South Africans.
. The coverage of incidents of violence against foreign nationals by print and visual
media spreading violence to other areas.




SAPS reported that on 9 April 2015, a group of unknown African males entered a Somalian
shop at J Section in Umlazi and tried to loot it. They ran out of the shop without taking
anything, when they saw the shop owner wielding a firearm. The shop owner fired a shot
towards a group of males that were on the pavement in front of his shop. A 24 year old South
African female, Ms. A. Dlamini was mistakenly shot and later died in hospital. This incident led
to the escalation of incidents of attacks on foreign nationals’ shops and houses at Umlazi
Township and other areas. The case of the accused Somalian went to court on 23 June 2015.
The police could, however, not find the firearm.



SAPS further reported that on 10 April 2015 a group of about 50 African males armed with
spears came to a tuck-shop in a container at Umlazi and demanded that the Ethiopian owners
open it. The suspects then poured a flammable substance through the serving window and set
it alight. There were two Ethiopian nationals in the shop who were badly burnt and rushed to
hospital, one of whom later died.



4.1.9 KZN SANCO



The provincial SANCO presented to the Committee and put forward the following
recommendations based on the matters reported by the police above and its engagement with
affected communities:



i. Government should address the matter of migration policy and there should be proper
registration of foreign nationals in the country.
ii. Refugees and their businesses were fine, however, they should be encouraged to share
business knowledge and to have licences.
iii. The issue of certain businesses fronting for other people and the matter of fraudulent
marriages and fake IDs should be investigated.
iv. A lasting solution should be found so that violence does not reoccur again.
v. There should be proper registration of all who enter the country and refugee camps
established for all political refugees.
vi. Tuck-shops run by foreign nationals should be investigated since they may in fact be
owned by big businesses.




4.1.10 Jeena Warehouse Management, Isipingo



The Committee visited Jeena’s Warehouse. The Committee engaged with store management
who indicated that the store had been in existence for 120 years. They confirmed that there


was a labour dispute but that all its employees were officially registered. There were, however,
some community members who were given casual work. According to the management, the
store did not replace South Africans with foreign nationals. During the strike, which started on
15 December 2014, the store had a skeleton staff. The dispute with PTAWU was reported to
have underwent mediation on 17 June 2015 and the Union Representative, Mr. M. Jama, was
supposed to participate in the hearing on 23 June 2015 but did not attend. Jeena’s Warehouse
management emphasised that the attack against foreign nationals did not emanate from their
store.



4.1.11 Foreign nationals and business owners in Isipingo Central Business District



The Committee proceeded to Isipingo Central Business District and interacted with foreign
nationals and business owners who alleged that the violence was started by young boys, but it
was difficult to identify them. It was established that most of the foreign nationals residing in
the area were from the Democratic Republic of Congo (DRC), Burundi, Rwanda, Zimbabwe,
Malawi, Somalia and Nigeria. Mr. Daniel from the DRC indicated most of the foreign nationals
had started as car guards and worked their way up to owning shops.



The following concerns were raised:

i. The DHA was not processing documents on time. There were people who had been in the
country for more than 10 years and still did not have refugee documents, let alone
permanent residence.
ii. The relationship between the police and foreign nationals was not good. It was reported
that the police did nothing when the looting took place.
iii. There was no dialogue between South Africans and foreign nationals.
iv. The municipality did not seem to give trading permits to South Africans.




4.1.12 Phoenix Police Station



At Phoenix Police Station it was reported that the attacks against foreign nationals occurred in
Durban. The foreign nationals residing in areas around Phoenix came to Phoenix Police
Station on 14 April 2015, indicating that they feared for their lives and that the Greenwood
Park shelter was already full. The Phoenix Police Station housed them temporarily in the
holding cells, although there were no attacks against foreign nationals in the area. A new
shelter was established at Univale grounds in consultation with the EThekwini Municipality on
17 April 2015. It was also known as the Phoenix Shelter. The shelter had been used for the
Northern part of Durban and it sheltered approximately 3222 persons. Others came at night to
sleep. It was also reported that approximately 700 foreign nationals residing in the Verulam
area left their homes and went to Verulam Police Station. During their absence, their homes
were broken into and one was set alight.



SAPS reported that repatriation and integration took place from 20 April 2015 to 28 April 2015.
The shelter was closed on 29 April 2015. It came to the attention of the police and the
EThekwini Municipality that some foreign nationals, coming from various parts of Durban,
sought refuge at Akoonjee Brothers’ Warehouse. These were mainly Somalian and Ethiopian
nationals. They were displaced from Inanda Cluster, KwaDukuza, Umlazi and Clermont. All
these foreign nationals owned business and they moved with their goods.



4.1.13 Interaction with Migrants and Locals in Durban CBD



The Committee proceeded to several streets in the Durban CBD that were known to house
migrant businesses and accommodation. One street was dominated by Pakistani nationals,
another was dominated by Somalis and those from DRC and Nigeria. They indicated that they
were not attacked in these areas since they comprised most of the inhabitants or businesses
there and South Africans would not risk being outnumbered. Some business persons indicated
they have access to direct container shipments of goods from abroad and thus were able to


offer better prices. There was one shop which was found to be a hair salon in front and
appeared to be a brothel and accommodation above it. Most migrants, however, indicated that
they wanted to work with South Africans.



Migrants that have travelled for long distances, particularly by road, may be particularly
vulnerable to health issues that need attention in areas with high migrant populations.



A crèche in the inner city indicated that they found it difficult to be registered and get materials
to cater for the needs of children.



4.1.14 KwaZulu-Natal Somali Community Council (KSCC)



At the KwaMashu Police Station the Committee met with the KwaZulu-Natal Somali
Community Council (KSCC). They reported that there was a KwaMashu Business Association
who was distributing pamphlets warning foreign nationals to leave the area. During the attacks
on foreign nationals in KwaMashu, there was no loss of life but a lot of store merchandise was
lost. They confirmed that they had partnerships with South African businesses who helped
them store their goods during the violence. They indicated that this was not xenophobia as
was reported but rather acts of criminality. It was reported that the community of KwaMashu
did not have a problem with foreign nationals. It seemed that there was a group that was well
organised to intimidate and attack foreign nationals. There had been petrol bombing and no
arrests. The KSCC thanked the South African government for hosting them in South Africa.
They emphasised that they did not sell drugs and were willing to share their experiences. They
indicated that there were no secrets to building a business. They indicated that the relationship
between Akoojee Brothers’ Warehouse and the migrants that they sheltered was for business
and not based on religion.



4.1.15 North Region Spaza Association



The North Region Spaza Association reported to the Committee that the area was too small to
conduct business along with foreign nationals. They reported that they could not compete with
foreign nationals who had better business support networks. The foreign nationals who were
conducting businesses in South Africa appeared to be deployed in a coordinated manner and
they slept in their shops. The Spaza Association raised the following challenges:



i. Foreign nationals did not consult with local shop owners when they decide to open a shop
and they were reported to also create competition by marrying South African women.
ii. The competition was aggravated by the fact that malls were mushrooming in the
townships, also without consultation.
iii. Small businesses do not receive enough support from the South African government to
survive and by-laws relating to businesses were not enforced.




4.2 Gauteng Oversight



4.2.1 Gauteng Provincial Government



The Committee engaged with the Acting Premier of Gauteng who was accompanied by a
delegation including the Director General of the Department of Cooperative Government and
Traditional Affairs (COGTA). The Premier reported that Gauteng’s cosmopolitan nature reflects
a myriad of communities, languages, cultures and nationalities. Gauteng remains the largest
economy in South Africa and thus experiences high levels of in-migration from other provinces
and cross border migration. The Gauteng City Region Observatory research survey indicated
that there were approximately one million international migrants in Gauteng and 67% of them
were from the Southern Development Community (SADC) states. Gauteng was both a
transition point for those intending to move to other parts of the country and a reception area
for those seeking to settle. The Provincial Government’s posture on migration was therefore


rooted in balancing its statutory, legal and regulatory position as an organ of the state and the
socio-economic realities which attract and entrench both internal and cross-border migrants.



The migration situation is amplified by the complex challenges of:



i. Inequality, poverty and unemployment;
ii. Rapid urbanisation in relation to land use planning and management;
iii. Pressure on basic services and amenities;
iv. Uneven enforcement of regulatory compliance; and
v. No ongoing social cohesion programme, following the 2008 xenophobic attacks.




The Committee was informed that on 19 January 2015, violence was sparked by the fatal
shooting of a 14 year old boy in the Snake Park Region who allegedly stole some items and
was assaulted by shop owners and subsequently died due to the sustained injuries. This
resulted in looting and targeting of other foreign national shops by the community. By 22
January 2015, violence had spread to other areas like Braamfischer.



On 20 January 2015, a Ward Councilor convened a public meeting in the Doornkop
community. On 23 January 2015, the Premier, Mayor and other leaders visited Soweto,
Diepkloof, Naledi, Protea South, Meadowlands and Snake Park to assess the situation and
address members of the community about the criminal activities that were taking place against
foreign nationals’ shops. On 25 January 2015, two South Africans were shot dead at
Zamimpilo informal settlement allegedly in a looting attempt at a Somalian shop. The outbreak
of attacks in the inner city spread to Alexandra by 17 April 2015, including the fatality of a
Mozambican national on 18 April 2015. Incidents in January 2015 were different from the 2008
violence in that violence was focused mostly on businesses rather than on people.



The outbreaks of violence were preceded by false alarms about xenophobic attacks which
spread fear. These messages were went viral through social media. Incidents of violence
included the targeting of foreign national owned shops. Soldiers were deployed to the City of
Johannesburg on 21 April 2015 and tensions subsided. The City was engaged in mobilisation
and activation of structures working with migrants for a proactive response. These include the
Johannesburg Migration Advisory Panel and the Johannesburg Migration Council, which also
includes city leadership actively involved in the community activities. Private sector
engagement and mobilisation was undertaken with Vodacom to set up a distress service.



The Provincial Disaster Management Centre (PDMC) assessed affected municipalities and
found certain areas worst affected by violence and in various degrees at risk of violence. In the
City of Johannesburg, municipal Joint Operation Centres were set up in Cleveland and
Sandton and 24 hour Disaster Management Centres were activated. Overnight shelters in
Alexandra and Jeppestown were monitored and safety patrollers and SAPS support were
activated.



In the city of Ekurhuleni temporary camp shelters were activated in tents and halls in Primrose
and Elsburg with support material provided including mattresses, blankets, clothes, food, basic
sanitation and toiletries. Transportation, water provision, waste management and other camp
management activities were also coordinated.



The PDMC coordinated all municipal responses to violence incidences through Joint Operation
Centres (JOCs) and Provincial Joints. Land and recreational facilities were identified for
possible provision of large shelters/displacement camps. The PDMC liaised with UNHCR and
UN Human Rights Council, which provided 100 tents. Seven shelters were established
housing 2250 persons.



The office of the Premier activated advocacy and civic information campaigns across the
province and coordinated efforts with municipalities, civil society organisations, including


organised migrant communities and migrant organisations as well as with the support of faith-
based organisations. Programmes from all municipalities, provincial departments, civil society
organisations and faith-based organisations were integrated, culminating in a People’s March
Against Xenophobia on 23 April 2015 where more than 20 000 people participated in united
condemnation of xenophobia.



An Interfaith Prayer Day was reported to have taken place on 24 May 2015 praying for
cohesion and solidarity with the victims of violence. The ongoing social cohesion programme
includes language support and orientation for new arrivals as well as workshops and training
on building communities of peace and diversity; intercultural and counter xenophobia
dialogues; human rights and the risks of human trafficking.



4.2.2 Gauteng Provincial Government Current and planned institutional arrangements



Current and planned institutional arrangements in Gauteng in support of migration and social
cohesion include the following:



i. The City of Johannesburg Migration Desk is a hub that provides multi-media information
on the province and facilitates connection to various resources critical to migrant
adaptation in the province. The Migrant Desk is for all people that are new to the province
but not many South Africans have visited the Desk. Advocacy groups, on the other hand,
organise migrants to go to the Desk. They only provide information, however, and advise
illegal imigrants how to regularise. Migrants from other countries have more success in
integrating since they are well-travelled, whereas those migrating from within the country
tend to be more overwhelmed by the challenges facing them when they arrive.
ii. Arrangements are underway for the setting up of the Provincial Migration Desk responsible
for integrated policy coordination. Suggestions on the establishment of Migration Help
Desks in the Cities of Tshwane and Ekurhuleni are being reviewed.
iii. A War Room was established as a cohesive and integrated network of service response
structures from ward to local, to district and provincial level. It develops and implements a
province-wide, integrated, comprehensive and sustainable service delivery model to
improve the quality of life of Gauteng residents, particularly the poor.
iv. The PDMC is responsible for coordinating government's response to disaster-hit areas
across the province, working with other relevant structures in government as well as non-
governmental organisations. All municipalities are represented and participate.
v. The African Peer Review Mechanism (APRM) is a broad consultative forum with influence
on provincial policy. Departments of COGTA; Human Settlements; Sport, Arts, Culture and
Recreation are requested to form part of the team that will support the APRM and the
Social Cluster in the development of the social cohesion strategy and interventions.
vi. Community Police Relations within the Directorate of Community Safety (DCS) advocates
and mobilises communities against crime. The DCS also coordinates advocacy
programmes with law enforcement structures in the province.
vii. The United Nations Protection Working Group was set up to deal with the influx of
Zimbabwean nationals and it deals with matters of xenophobia in South Africa. Provincial
and local governments are not represented. It is proposed that these two spheres of
government should be represented.
viii. A Reception and Integration strategy will enable new comers and established migrants to
have an avenue to receive information and connect to opportunities that will allow
participation in the active lives of communities. This includes the help desk, language
classes and orientation to assist migrants to understand the culture of the host country,
duties, rights and obligations and knowledge of the law emphasising zero tolerance to
crime.
ix. Promoting participation of migrants in the decision-making process and community
activities, for example in school governing bodies, police forums, business forums, etc.
Further research is to be conducted on racism, migration, xenophobia, social cohesion
and integration.





The Gauteng Province indicated to the Committee that Home Affairs were part of a team
operating in camps taking details, including document status and information on
undocumented migrants. The shelters were closed relatively quickly but in total the seven
camps had a direct cost of R5.3 million for humanitarian assistance. In total 279 people were
repatriated and 306 returned to communities. It was reported that a South African drug addict
had been implicated in stealing and when attacked had spurred further violence. Opportunistic
crime and looting occurred but significantly less than in 2008 due to rapid and coordinated
intervention. The experience with the media was positive such as with the “not in my name”
campaign.



4.2.3 Public meeting in City of Johannesburg Municipality



The Committee attended a gathering arranged for stakeholders and those affected by the
violence. The following organisations interacted with the Committee and their submissions are
summarised below.



4.2.3.1 African Diaspora Forum

The African Diaspora Forum quoted several statements from prominent figures that fed into
discrimination against migrants. They indicated that they were struggling to renew asylum
permits on a monthly basis since they often struggle to even enter DHA offices let alone get
legal permits. There was, however, also an indication that it was the failure of governments in
refugee countries of origin to take effective action to prevent conflict and have effective
freedom of speech and franchise, which contributed to war in African states and increased
migration into South Africa. In South Africa there is the freedom of political expression that
they lacked at home and the presence of the Committee testified to this and was appreciated.
Broader diplomatic interventions on the continent were needed to address the root causes of
violence against foreign nationals.



4.2.3.2 Consortium for Refugees and Migrants in South Africa (CORMSA)

The CORMSA indicated in addition to its written submission to the Committee that civil society
was getting support from provincial government and the Migrant Desk. They were disappointed
that after the IMC on Migration was established, Operation Fiela resorted to the disturbing
inclusion of the military. CORMSA complained to the Premier about the wrong message being
sent that the attacks on foreign nationals had only led to the arrest of foreign nationals. It took
Lawyers for Human Rights three court orders to get legal access to migrants that were
detained for deportation, which contradicted the Minister of Home Affairs saying the country
was taking a developmental approach to migration.



4.2.3.3 South African Masters and Legends Association (SAMLA)

SAMLA was a new initiative of former professional soccer players and celebrities aimed at
using sport for awareness and education initiatives. SAMLA indicated that decision-making
processes needed to be informed by migrants (such as a presidential advisor on xenophobia
and racism). Ongoing engagement with high profile figures was also needed, requesting
support for ventures such as the soccer matches and discussion road shows they arranged
between migrants and citizens. The South African Football Association (SAFA) is refusing
support perhaps due to the African Diaspora Forum being part of SAMLA.



4.2.3.4 Lawyers for Human Rights (LHR)

LHR indicated that numerous research had shown that violence was specifically targeted at
migrants from outside South Africa over the last 15 years. What had not improved since 2008
was how badly victims were treated. They also raised a concern with Operation Fiela which
used soldiers to do inspections without warrants on private property when they were not
properly trained to do policing and deter violence. Operation Fiela was strengthening the
association of migrants with crime and there was a targeting of even those that had legitimate
permits.




Being able to work was a matter of human dignity and survival for migrants in South Africa.
There were also significant delays in the procedures related to the arrests of those
apprehended for violence against migrants with only a 16% prosecution rate. Minister Radebe
was reported to have said that of the 5000 arrested, only 79 were prosecuted. The publicly
announced specialised migration courts have not been put into effect. Those who were
undocumented were not undocumented by choice but by lack of access.



A lot of research had been done on the existence of xenophobia which could not be countered
by anecdotal experiences. The LHR indicated that the dictionary definition of xenophobia was
not sufficient to address the real prejudice existing all over the world against migrants - and in
many instances South African government departments are not following the law and the
Constitution regarding migrants. LHR regard Operation Fiela as a repeat of the abusive
process in a 2008 case where 400 people were threatened with deportation and families were
separated.



4.2.3.5 South African Congress of Non Profit Organisations (SACONO)

SACONO were thankful to the Premier for the interventions, especially the coordination of
support. They indicated that more was needed to align the United Nations, African Union and
local laws on refugees. Undocumented migrants and refugees were all seeking opportunities
but could not find more durable livelihoods since their temporary permits were not being
finalised. NGOs as a sector were quite fragmented and could better assist with integration if
they were better coordinated. Some issues could be dealt with at street level where migrant
skills could also be of use, such as improved sharing of culture such as food.



4.2.3.6 South African Spaza and Tuck-shop Association (SASTA)

SASTA indicated that they sought government support since they were still struggling to
survive. They had received some support from Massmart. Only 10 out of 6000 small
businesses were given grants to establish a business under the Gauteng Accelerator
Programme (GAP).



Small businesses indicated that they had no evidence of government initiatives to support
business and create jobs and claimed that 80% of goods in malls were from China. It was
alleged that video footage was available of people paying to get business operating permits. It
was further alleged that Municipalities were incompetent and permitting needed to be more
centralised. Many businesses such as those situated in residential homes were not compliant
with municipal by-laws and too many licenses were issued in one area. There were also claims
that foreign nationals only employ and support their own people.



It was further indicated that there was a need to develop support to train businesses in order
to access the National Youth Development Fund. There was much more needed for training on
such matters as cooperating to bulk buy goods. It was, however, unfair for one person to
receive funding from several bodies at the expense of others.



4.2.3.7 Rights and Equality for Rwandans

The Rights and Equality for Rwandans indicated that they did not think that the recent attacks
were outright xenophobia related. The deeper underlying frustrations of those from Rwanda,
Burundi and DRC was that they had no space to express themselves in their home countries,
which they regard as totalitarian regimes. This was disputed by a migrant from DRC. The
Rwandans asked for more diplomatic interventions by South Africa to confront lack of
democracy elsewhere on the continent.



4.2.3.8 Johannesburg Migrant Advisory Panel

The Christians for Peace in Africa as members of the Johannesburg Migrant Advisory Panel
indicated that it was one of the structures to engage with migrant communities since 2009 and
had consulted directly with President Jacob Zuma. They indicated that the City had been more


proactive than reactive and had spent days and nights in Soweto with victims. They led
interfaith prayer for peace and compassion for those with even worse suffering. They believed
that the identity as Africans together would solve the problems of migration.



4.2.3.9 Coordinating Body of the Refugee and Migrant Communities

The Coordinating Body of the Refugee and Migrant Communities requested that as the
Committee probed violence against foreign nationals, it should also enquire into
institutionalised prejudice and consider a continued structure probing violence since an Ad
Hoc Committee was not sufficient to implement recommendations. There was also a need for
a better orientation programme by local municipalities, including an updated booklet of
information for migrants. The DHA needed better processes to document migrants, not only for
them to access services and documents but also to track criminals.



4.2.3.10 Faith Based Organisations

Faith Based Organisations commended the City of Johannesburg for their work in relation to
migrants but more was needed for the unemployed underactive youth who were at a real risk
of being exposed to violence. Improving initiatives such as street committees would also
prevent violence. The church was a place of safety that offers social services that can further
be shared with government.



4.2.3.11 Township Business Development Board

The Township Business Development Board indicated that they offer a business development
and entrepreneurship programme for six weeks and then possible funding based on a
business plan. South Africa needs food security and businesses orientated towards this.
Institutional prejudice has prevented access to rights of migrants guaranteed in the
Constitution. It was reported that around 70 000 Somalis are in South Africa, some having
arrived as early as 1890. They are employed in many fields, but most of them are
entrepreneurs in townships. There are daily reports of attacks and around 100 Somalis alone
die a year due to violence in South Africa. Prosecution was also reported as very low with
conviction rates of less than 10%. Some communities, such as Soweto were safer for foreign
nationals than others such as Atteridgeville or Duduzo where there have been no migrant
owned shops for several years.



4.2.3.12 Community Development Forum

The Community Development Forum indicated that in 2008 they were involved in education to
prevent xenophobia and afrophobia. They indicated that more was needed to teach people of
the danger of violence and that no country allows free access across borders.



4.2.4 Jeppe Street Police Station



The Committee received briefings from the Police in Jeppe Street, Dobsonville and Alexandra
Police Stations as well as from Kagiso SAPS and Izinduna.



The Committee was informed that the Jeppe Street policing precinct is comprised of 194
informal businesses, including spaza shops and panel beaters. Eighty percent of these spaza
shops and panel beater shops were operated by foreign nationals. On 13 April 2015, the
Station Commander received information from the members of the community that there was
going to be attacks on foreign shops on 14 April 2015. A contingency plan was put in place to
patrol the area.



The Committee was informed that on 15 April 2015, violence broke out in Jeppestown. The
first incident started in front of the Jeppe Men’s hostel. A group of African males, of different
ages allegedly stormed into the street and started throwing stones at the passing cars. They
were joined by a large number of people coming from the Jeppe hostel as well as the sub-
hostels around the area. Later in the afternoon of the same day, a large group of people
moved up the road into Jeppestown and started damaging business premises in the area.


Reinforcements from the Public Order Police was called and the situation was brought under
control. The group demanded that foreign nationals must go back to their country of origin or
they would burn their shops. Members of the community barricaded the roads with rocks and
burning tyres.



The attacks spread all over the area of Jeppestown. Although members of the Public Order
Police maintained their presence in the area, more reinforcements had to be deployed,
informed by the pace at which the attacks were spreading and the matter was escalated to the
Provincial office. The unrest lasted for 11 days, until 26 April 2015. It was reported that
although the violence was directed towards the property of foreign nationals, the properties of
South African citizens were also targeted. These were clearly opportunistic criminal activities.

Derelict buildings that were owned and occupied by foreign nationals were not properly
managed, thus contributing to criminal activities. There were no foreign nationals that were
displaced, nor needing reintegration during that period.



A total number of 28 criminal cases were registered in relation to that unrest. Thirteen cases
were successfully placed on the court roll. The other 10 cases were closed as undetected.
Forty-nine people were arrested for criminal related cases. Four cases were still on the court
roll and only one was finalised with a conviction.



4.2.5 Moroka Police Station



The Moroka Police station covering the Dobsonville policing precinct area is comprised of 327
informal businesses, commonly known as spaza shops. The majority of these spaza shops
were operated by foreign nationals. It was reported that on 19 January 2015, at about 20:00,
violence broke out in Thulani prompted by an incident that occurred at the Raso Supermarket.



A total number of 86 criminal cases were registered in relation to that unrest and 38 persons
were arrested. The attacks focused on property not on individuals. There also appeared to be
conflict between nationals from different countries where only certain nationalities were
targeted at certain times. Twelve cases were successfully placed on the court roll. The other
74 cases were closed as undetected. Seven people were arrested for public violence-related
cases. Eight firearms were confiscated and nine foreign nationals were arrested. There was
also an indication that there had been a rise in counterfeit goods in the precinct. Four cases
were still on the court roll and the other four were finalised with convictions. During the
policing of this unrest situation it was noticed that in all businesses that were attacked, the
people were not targeted, but the property was. In other instances business operators who
were afraid that their businesses might be attacked decided to report to the police before such
attacks could take place and requested police to escort them out of the area to different
destinations.



4.2.6 Izinduna



The Committee also had an engagement with Izinduna at Jeppestown Police Station and
Alexandra Police Station where the traditional leaders indicated that the local industry did not
employ South Africans living in the hostels in town. It was also reported that the unemployed
locals was envious of foreign nationals with panel beating skills. It was relayed that attacks in
Jeppestown had been managed well since foreign nationals employ South African workers.
The Izinduna questioned the presence of the Committee only once migrants experienced
problems. Izinduna indicated that when they were in exile they were not allowed to be
employed or engage in business and yet refugees in South Africa are.



There was a strong need for more jobs and improved peace and stability. The Committee was
informed that the SAPS raid the hostels as if they were criminals and animals and leaders
were not engaged. Yet they assist the station to apprehend those that were sought. It was
reported that King Zwelithini did not call for violence, it was the law that undocumented


persons be sent back home. They have done everything in their power to protect migrants, but
the situation was abused by criminal elements. Izinduna indicated that the attacks were not
primarily xenophobic since South African’s were also attacked. They however complained how
Operation Fiela had raided the hostel and disregarded the dignity of people by forcing them lie
naked on the floor whilst the hostel was being searched.



The Izinduna indicated that in exile, South Africans did not take over areas and informal
trading like migrants do in South Africa. There appeared to be collusion between some
property owners and migrants to rent out or occupy derelict buildings for work or residence.
There was also a concern that migrants were abusing other migrants for sex trafficking in
buildings which were not raided by police. Locals find it difficult to engage with groups with no
leaders who do as they please. They have money to buy and stock to sell whereas even
educated South Africans cannot get jobs. They requested that their concerns be taken to
higher structures. The work they do was voluntary but they were accused of being traitors
since they prevent locals from chasing foreign nationals away.



The Committee expressed appreciation for the way the Induna volunteered and worked with
police. It was indicated that there was supposed to be communication with the head of Induna
and COGTA on arrangements for paying them.



4.2.7 Snake Park and Kagiso Community Meeting



Amongst several other issues indicated to the Committee, members of the community
indicated that drug addicts were using a sports field since the solid wall around the park
prevented them from being observed. The drug users contributed to crime in the area. Sport
activities were needed to keep the youth occupied and this would help prevent crime and
attacks.



4.2.8 Alexandra Police Station



In addition to many similar challenges and finding raised by other Police Stations, Alexandra
indicated to the Committee that an incident attributed as xenophobia was in fact an internal
dispute amongst migrants. There was also tension between foreign nationals and internal
migrants over access to housing. It was indicated that improved communication between
police and communities is needed to prevent future violence and allow a more rapid response
when it does occur.



4.3 Western Cape Oversight



The Committee conducted a public meeting in Hangberg, Hout Bay in the Western Cape. The
local SAPS and the Agency for Refugee Education, Skills Training & Advocacy (ARESTA)
made the presentations followed by community submissions. It was indicated that there were
no recent attacks against foreign nationals in the Western Cape and that the last such attack
in the area was in 2011.



4.3.1 Provincial South African Police Service



The SAPS indicated that the high unemployment rate was the root cause of violence in South
Africa. There were limited work opportunities for South African citizens. The employers
preferred to hire foreign nationals at low salaries. South Africa was rapidly becoming
urbanised. People migrate from rural to urban areas in search of better opportunities. As a
result, there was a shortage of housing. The foreign nationals compete with South African
citizens with regards to housing and this create animosity between the two groups. Due to the
high rate of unemployment, South African citizens with Reconstruction and Development
Programme (RDP) houses sub rent their houses to foreign nationals.




It was reported that South African citizens who own spaza shops, have to compete with foreign
nationals. There were many spaza shops that were owned by foreign nationals. The foreign
owned spaza shops undercut the prices of the locals and therefore the spaza shops owned by
South African citizens have closed down. There is price competition between the locals and
foreign nationals. The spaza shops and the working hours of the spaza shops were not
regulated. The foreign owned spaza shops could be opened until late at night because many
of them sleep in their shops.



The SAPS recommended that in order to curb the issue of violence against foreign nationals
the socio-economic and security challenges should be addressed. There should be community
education and mobilisation. There should be effective and efficient measures to address
attacks against foreign nationals. The South African borders were porous and this needs to be
addressed. The high rate of unemployment needed to be addressed, coupled with the
shortage of houses, especially in the urban areas. The by-laws on trading should be enforced
and the DHA should ensure that the undocumented foreign nationals are documented.



4.3.2 The Agency for Refugee Education, Skills Training and Advocacy (ARESTA)



ARESTA briefed the Committee on its work with regard to migrants in Cape Town. It is a Cape
Town based Non-Profit Organisation that fulfils a practical empowerment role in educating and
providing skills to refugees, asylum seekers and Cape Town community members. It conducts
its work through social cohesion activities, training and workshops as well as through strategic
partnership with local NGOs, CBOs and government departments.



4.3.3 Hangklip, Hout bay and Imizamo Yethu Community Engagement



The Committee engaged with members of the community who indicated that there were no
attacks against foreign nationals in their areas. The community reported that the root cause of
violence was unregulated business in their townships. The Imizamo Yethu residents live with a
huge community of foreign nationals and everyone was protected. A foreign national who was
killed in the area, just happened to be at wrong place at the wrong time. It could have been a
South African who had been killed. It was emphasized that small businesses were not
regulated and do not pay tax, and thus they are able to undercut South African businesses
who pay tax. The employers prefer to employ undocumented foreign nationals because they
pay them lower salaries.



5. Meetings held at Parliament



The Committee met at Parliament on 4, 12 and 25 June; 4 and 25 August; 3 and 22
September and 10, 11, 13, 17 and 18 November 2015, engaging with all four stakeholder
groups covered in this section.



5.1 The Congress of the South African Trade Unions (COSATU)



The Congress of the South African Trade Unions (COSATU) and the Hout Bay community
organisation, Imizamo Yethu, briefed the Committee on issues relating to the recent violence
against foreign nationals.



COSATU stressed that the issue of migration had a historical context, particularly colonialism
and apartheid, and the artificial borders that had been created in this process. The violence
one saw in the country - whether in sports, on the roads, or in shebeens over the weekends -
was one of the legacies of apartheid, as the apartheid regime had exerted its power through
violence and police brutality. The attacks on foreign nationals in informal areas in KZN and
Johannesburg were also linked to the competition for scarce resources.




COSATU indicated that the underlying problem in the recent attacks on foreign nationals was
that most employers were hiring illegal migrants at the expense of South Africans. The
exploitation of these illegal migrants was made complex by the fact that illegal migrants were
not protected by unions and therefore fell prey to exploitative employers. COSATU wanted to
place it on record that there were elements of criminality in the recent xenophobic attacks
against foreign nationals, including the looting of spaza shops. The South African
Development Community (SADC) and the African Union (AU) could play an essential role in
the promotion of peace, democracy and tolerance on the African continent, as political and
economic instability had an impact on South Africa.



5.2 Imizamo Yethu SANCO



SANCO leadership from Imizamo Yethu emphasised that the community of Hout Bay was
living in harmony with a huge number of foreign nationals from different countries. However,
the government needed to prioritise the provision of documentation of all people that were
coming from other parts of Africa or the world so that everyone in the country could be
monitored and tracked for security purposes. Local employers were taking advantage of the
situation by employing illegal migrants who were willing to accept any amount that the
employer was willing to offer. These employers should be held accountable for such a breach
of the law. The Department of Small Business Development should impose regulations on
small businesses that were foreign-owned in order to ensure that there was fair competition. It
was clear that what had been termed as xenophobia in public was simply people who were
fighting against unregulated resources, and it was important for government to take a stand in
ensuring that all the foreign-owned businesses were taxed.



Members asked Imizamo Yethu whether the recent attack on foreign nationals in Hout Bay
was because of a scarcity of resources, or due to criminal elements. One Member asked about
the progress and impact that had been made by the Joint Business Forum (JBF) which had
been established in Hout Bay after the xenophobic attacks in 2008 to ensure there was
collaboration between foreign nationals and local South Africans who were involved in
businesses in the townships. It was important to know if Imizamo Yethu had a database of the
tuck shops that were foreign-owned in relation to those that were owned by South Africans in
Hout Bay, in order to improve harmony in the area.



5.3 The City of Cape Town



The City of Cape Town briefed the Committee on its strategy to anticipate and deal with
violence against foreign nationals. The Social Disorder Hazards Disaster Risk Management
Plan expresses the Cities approach on the experiences of violence against foreign nationals in
Cape Town in 2008 and a scientific risk assessment was conducted in order to determine
broad threats. The plan had three main elements: early warning, preparedness and response,
and recovery. The plan not only catered for violence against foreign nationals or xenophobia,
but was also intended to deal with all forms of social disruption. Key to the plan was
cooperation amongst the various spheres of government in line with their constitutionally
assigned responsibilities.



The City of Cape Town indicated that dealing with this form of social unrest was more about
social cohesion than policing. It was the State’s duty to ensure that it promotes inclusivity and
a state of national unity. A culture of tolerance needed to be instilled in the community, where
there is understanding between different races, cultures, genders and socio-economic
backgrounds. The feeling of some citizens in the Western Cape mirrored that in other parts of
the country in that foreign nationals were taking away businesses, marrying people, and living
in government housing schemes. The City of Cape Town therefore introduced a strategy to
mobilise all the partners involved to have a social cohesion plan in place. The interventions
included interacting with the National Disaster Management Centre and other national level


institutions, and also interactions with the United Nations High Commission for Refugees and
reviewing the Social Disorder Hazards Disaster Risk Management Plan.



The City of Cape Town representatives outlined how the Social Disorder Hazards Disaster
Risk Management Plan would operate in practice from the point of early warning to
preparedness and action, and recovery. The presentation also noted the plan’s response to
the recent threat of violence in January 2015.



The City of Cape Town indicated that the root cause of violence against foreign nationals was
due to a lack of social cohesion and tolerance, which was largely due to apartheid.
Furthermore, the absence of economic opportunities and the competition for scarce job
opportunities led to violence against foreign nationals. Representatives did not have statistics
on the number of foreign people in the city, in various industries or who own businesses.
However, the City of Cape Town had amended its by-laws to better regulate participation in
informal trading. Further, it has a specialised unit to deal with complaints about discriminatory
employment practices and to try and ensure equal participation in employment and business.



The Committee emphasised that Parliament had not yet come to the conclusion that the
incidents of violence against foreign nationals were due to xenophobia as per the dictionary
definition of extreme, irrational hatred of foreign nationals.



5.4 Inter-Ministerial Committee on Migration (IMC)



The Committee met with the IMC on Migration which was established on 22 April 2015 by President
Zuma to promote orderly and efficient migration and peaceful co-existence between citizens and
non-South Africans, as well as to consider social, economic and security aspects of migration. The
Minister in the Presidency, J. Radebe, leads the IMC on Migration and presented its findings to the
Ad Hoc Committee in terms of the root causes of the incidents of violence against foreign nationals.

The Presidency on behalf of the IMC on Migration indicated that the primary cause of the violence
against foreign nationals is the increased competition arising from the socio-economic
circumstances in South Africa. This was illustrated by statistics showing a growth in the number of
unskilled immigrants entering the country since 2008. This is in the context of slowing economic
growth and a decline in unskilled job creation. This has been heightened by a decade of poor
implementation of immigration and border controls. Recent incidents in Makurung Limpopo and
Grahamstown Eastern Cape show that if the underlying causes are not addressed there remained a
considerable latent potential for resurgence of violent anti-foreign national sentiments.

Initial government research indicate that the total number of migrants in the country was between a
lower limit estimate of five million and an upper limit of six million. It was thus highly likely that
immigrants represented more than 10% of the country's population. Migrants were shown to often
cross several countries before reaching South Africa, in some cases facilitated by those countries'
officials. The presence of foreign nationals in South African communities was indicated to range
from 3 to 24%, being higher in peri-urban areas. The IMC on Migration provided maps showing
distribution of the migrant population and high concentration areas in Gauteng, Limpopo, KwaZulu
Natal and Mpumalanga.

The IMC on Migration indicated the reasons for increasing migrants were the: pull factor of South
Africa's relatively successful economy; abuse of the asylum seeker and permit waivers systems;
corruption in the border environment and failed border coordination. Push factors include conflict
and instability on the continent as well as lack of economic opportunities. It was also indicated that
foreign nationals were placing a strain on government services such as health, housing, education
and social grants. In the health sector bed occupancy of foreign nationals was between 10 and 20%
and up to 50% in some areas in Limpopo.

The IMC on Migration indicated that foreign nationals were dominating trade in certain sectors such


as consumable goods in informal settlements which has had a negative impact on unemployed and
low skilled South Africans. This is compounded by business models used by migrants to discourage
competition such as forming monopolies, evading taxes, avoiding customs and selling illegal and
expired goods. A publically available study by the Sustainable Livelihoods Foundation shows the
dominance of immigrant ownership of spaza shops in a number of communities as compared to
South African ownership.

Nationalities which dominate the additional low skilled labour force in the country are Zimbabweans,
Mozambicans, Basotho and Malawians. These groups, it was indicated, were preferred by some
businesses since they were un-unionised, work for lower wages and do not know their rights
compared to South Africans.

The IMC on Migration indicated that challenges with migration policy of the country include: that no
reservations were made to international agreements unlike other countries; that asylum seekers
were allowed to work; and there being no provision to share the burdens of migration with other
African countries. The visa waiver for SADC countries was indicated to be abused by people staying
in the country illegally beyond the allowed 90 days which has led to a drastic increase in persons
overstaying their permits since 2010.

In terms of measures being put in place by Government, the IMC on Migration indicated that a
migration policy process was being led by the DHA and will soon produce a Green and White Paper
for discussion. This would include dialogue with immigrant communities and the SADC region.
Progress was reported in that the Refugee Amendment Bill was ready for tabling at Parliament and
the legal and practical arrangements for the Border Management Agency were also progressing.

Other measures were said to include revisiting South Africa's unreserved accession to relevant UN
conventions and the related changes to the Refugees Act (No. 130 of 1998) as well as measures to
track and trace those persons who had overstayed the allowed time on their permits. A particularly
urgent need to increase the capacity of the Standing Committee on Refugee Affairs, Refugee
Appeal Board and Immigration Management Services. Measures were being put in place to
decentralise the Refuge Reception Centres at ports of entry to ensure more restricted movement for
rapid and controlled processing of applications. It was indicated that borderline management
needed to be improved particularly in terms of expedited construction and repair of border fences
and increased patrols.

Government Interventions to address the socio-economic challenges underlying violence were
reported by the IMC on Migration to include:



. Prioritising economic growth and job creation through the implementation of the National
Development Plan.
. Expediting the national programme to revitalise the township and rural economy.
. Developing and implementing the programme to audit and license informal businesses.
. Prioritise the granting of work permits to foreign national that have the skills needed by the
economy.
. Involving traditional leaders in the development of mechanisms for the management and
integration of foreign nationals in rural communities.
. Addressing the redesign of the migration management policy and practice for South Africa and
the Southern African Region.




The National Joint Operational and Intelligence Structure (NATJOINTS) then presented the
multidisciplinary integrated national action plan to reassert the authority of the state. This included a
five pillar Action Plan to address the attacks on foreign nationals and to create peace and stability in
the country. The five pillar action plan comprises aspects of Safety and Security; Humanitarian
Services; Legal and Regulatory Frameworks; Communication and Community Outreach and
International Cooperation.




6. Written Submissions



The Committee received 13 written submissions which were discussed and considered as part
of the recommendations of this report. References to source documents and research cited in
the submissions are not included but can be found in the original submissions available from
Parliament on request. The submissions do not necessarily represent the views of the
Committee but submitted recommendations are numbered in roman numerals at the end of
each submission.



. AA Solomon. Journalist & Asylum Seeker from Cameroon
. Department of Labour (DoL)
. Consortium for Refugees and Migrants in South Africa (CoRMSA)
. Congress of South African Trade Unions (COSATU)
. Hate Crimes Working Group
. The Legal Resources Centre (LRC)
. People’s Coalition Against Xenophobia
. Sonke Gender Justice
. Southern Africa Litigation Centre (SALC)
. Yonela Diko – Journalist
. Scalabrini Centre of Cape Town
. Jeena's Warehouse Workers / Professional Transport and Allied Workers Union
. Commission for Gender Equality (CGE)




6.1 AA Solomon. Journalist & Asylum Seeker from Cameroon



Mr Solomon reports being a victim of violence on April 17 2015 in Jeppestown, Johannesburg
in which a group of assailants abusively shouting for all foreign nationals to leave South Africa,
broke down the doors to his apartment. He had to break a window to escape along with other
migrants but the police arrived quickly and housed a group of migrants at the Jeppe Police
station overnight. When he returned to his property, a television, laptop and cash had been
looted. Mr Solomon reports that his children have had to leave school and that he has had to
seek other accommodation. He provided pictures of the damage done to his residence and
bruises sustained in trying to escape the attacks. He has reported the incident to the
Committee to Protect Journalists, UNHCR, Home Affairs and SAPS.



i. Mr Solomon requests that his asylum case be determined soon and that provision is
made to compensate the victims or provide them with the basics with which to restart
their lives after the attacks.




6.2 Department of Labour (DoL)






According to the DoL, illegal cross–border flows and labour migration have been on the rise in
recent decades. The rise can be attributed to globalisation; political instability; civil wars and
the widening income gap between the rich and the poor in some of the neighbouring countries.
These conditions force people to seek refuge and economic opportunities in the Republic of
South Africa. Therefore some employers in South Africa see an opportunity to exploit migrants
who seek refuge and economic opportunities in South Africa which itself is faced with a high
rate of unemployment. This results in conflict between the South African citizens and other
nationals.



The DoL view is that illegal cross–border flows can be prevented; however labour migration
cannot be prevented, it can only be controlled by incorporating stringent measures in
immigration and employment legislation. Although general cross-border migration falls within
the legislative mandate of the Department of Home Affairs (DHA - Immigration), the DoL is
involved in instances which are related to labour migration (employment) through the following
two branches:


. Public Employment Services: provides public employment services; regulates private
employment services and assists Home Affairs with certification for corporate visas.
. Inspection and Enforcement Services: conducts advocacy sessions on employment
conditions; monitors compliance and enforces compliance with employment conditions.




The purpose of the Employment Services Act (4 of 2014 “ESA”) which came into effect
recently is to: facilitate the employment of foreign nationals in the South African economy
where their contribution is needed in a manner that gives effect to the right to fair labour
practices contemplated in the provisions of section 23 of the Constitution of the Republic of
South Africa; not impact adversely on existing labour standards or the rights and expectations
of South African workers; and promote the training of South African citizens and permanent
residents.



The Basic Conditions of Employment Act (75 of 1997 “BCEA”) has also been recently
amended. The purpose of BCEA is to advance economic development and social justice by
fulfilling the primary objectives which are to: give effect to and regulate the right to fair labour
practices conferred by the Constitution by establishing and enforcing basic conditions of
employment; and regulating the variation of basic conditions of employment as well as to give
effect to obligations incurred by the South Africa as a member state of the International Labour
Organisation (ILO).



The provisions of section 8 (Employment of Foreign Nationals) and section 9 (Prohibited acts
in respect of foreign nationals) of ESA spell out what is required and prohibited in respect of
employment of foreign nationals. The provisions of the BCEA are comprehensive and do not
discriminate across employees, they cover foreign nationals working within the borders
whether legal or illegal.



The DoL is contributing strategically and operationally in various platforms to ensure that
foreign nationals working within the borders of South Africa continue to be protected. The DoL
is constantly involved in strategic international and national discussions organised by ILO and
national stakeholders on labour migration to affirm its commitment to protect foreign nationals
working within the borders of South Africa. Furthermore the DoL has a strategic relationship
with the DHA to ensure that there is proper implementation of controls and measures put in
place to give effect to the purpose and provisions of ESA, BCEA and the Immigration Act.



The DoL is required by regulation 18(3)(a) of the Immigration Act to issue a certificate; which
confirms that:

i. Despite a diligent search, the prospective employer has been unable to find a suitable
citizen or permanent resident with qualifications or skills and experience equivalent to
those of the applicant.
ii. The applicant has qualifications or proven skills and experience in line with the job offer;
iii. The salary and benefits of the applicant are not inferior to the average salary and
benefits of citizens or permanent residents occupying similar positions in the republic.
iv. The contract of employment stipulating the conditions of employment and signed by both
the employer and applicant is in line with the labour standards in the Republic and is
made conditional upon the general work visa being approved.






The DoL and DHA consulted and agreed on International Cross-Border Labour Migration
(ICBLM) management legislative framework, policy principles and operational procedures for
the work visa system.



The DoL through its inspectorate arm conducts inspections and audits on all companies
seeking to employ foreign nationals through corporate visa applications. The inspection is
based on compliance with the employment legislation of the Republic and thereafter a
recommendation is made to the Public Employment Services. After the process is completed a
consolidated report with recommendations/certificate is forwarded to the DHA. The


inspectorate branch plays an oversight responsibility during routine inspections. In workplaces
where there are foreign nationals they require the employer and/or the relevant employees to
produce work permits.



In instances where the inspector established that the foreign national employee (whether legal
or illegal) is receiving less favourable treatment, the inspector will use the necessary
provisions of the applicable employment legislation to enforce favourable treatment, which is
equivalent to the treatment that ought to be received by a South African citizen.



Subsequent to the recent attacks in the KwaZulu-Natal Province, the DoL Provincial office
attended a meeting convened by the SAPS Provincial Headquarters. One of the cases
discussed was the Jeena Warehouse case which was alleged to have been sparked by
employment of foreign nationals. The allegations were investigated and the finding did not
substantiate the allegations because there was no proof that the employer employed foreign
nationals at any given stage. A dispute that could be substantiated was around failed wage
negotiations and the employees embarked on a strike from December 2014. The employer
sought employment replacements; who were all South Africans. The CCMA was involved in
resolving the dispute and the strike was eventually called off in July 2015.



The inspectors of the DoL also investigated another case in Pietermaritzburg where it was
alleged that a certain truck company (Yocoob’s Transport) was employing foreign nationals as
truck drivers. The investigation revealed the following: The company had a staff complement
of 47 employees and 34 of them were truck drivers. Out of the 34 truck drivers, 17 of them
were foreign nationals from Zimbabwe. All the foreign nationals had work permits however
some work permits had expired and the matter was referred to the DHA for further action. DoL
inspectors in the provinces were also involved in various joint operations with immigration
officers, SAPS, and Bargaining Councils in different areas in Pietermaritzburg, Newcastle and
Durban.



Furthermore the DoL nominated one of its officials to a Team Leader from the Inspectorate
branch to represent the DoL in the Interdepartmental Reintegration Task Team; which is
facilitating the community dialogues to re-accept the foreign nationals back to the
communities.



The DoL through its legislative mandate is actively involved both directly and indirectly in
preventing violent attacks against foreign nationals. Although the provisions of employment
legislation limit the DoL’ scope of involvement, the DoL has made significant strides in
ensuring that the foreign nationals are afforded equal treatment and protection in the
workplace. Despite the limited scope and enabling conditions the DoL will continue to pledge
its support against violent attacks against foreign nationals by participating in government
initiatives and forums.



6.3 Consortium for Refugees and Migrants in South Africa (CoRMSA)






CoRMSA serves on the Steering Committee for the National Action Plan (NAP) to Combat
Racism, Racial Discrimination, Xenophobia and Related Intolerances which is an outcome for
all countries that signed the Durban Declaration at the UN World Conference Against Racism
hosted by South Africa in Durban in 2001. According to CoRMSA South Africa, as host of this
event, has not yet finalised its own action plan, which is not only internationally disappointing
but has also contributed to denial and lack of action to combat xenophobia, particularly since
the outbreak of violence in 2008. The Department of Justice and Constitutional Development
has expedited the process following the violence against migrants that occurred in January
and March this year and it is hoped that a draft NAP will be finalised for public comment in the
near future.




CoRMSA is a founder member of the Hate Crimes Working Group, a network of civil society
organisations from various sectors that work with vulnerable groups facing crimes motivated
by hate, prejudice or bias. This includes migrant, faith based, gender and anti-racist
organisations. The absence of specific hate crimes legislation makes it very difficult to find
statistics on hate crimes, such as xenophobic violence, since such incidents are recorded as
murder, looting, assault etc. without reference to the underlying motivation - why certain
individuals are targeted.



CoRMSA is of the view that the current low rate of convictions and prosecutions for acts of
violence against foreign nationals and other hate crimes sends the message that there is
impunity for such criminal behaviour and is a contributing factor for on-going violence.
CoRMSA proposed the following:



i. The Committee should consider the adoption of hate crimes legislation in its
recommendations.
ii. The stated direction of the policy planned by the Department of Home Affairs in terms of
managing the developmental benefits of migration, should assist government, civil society
and communities in better understanding the positive effects of migration and countering
the common misconceptions which can fuel xenophobic violence.




6.4 Congress of South African Trade Unions (COSATU)






COSATU recognises that the discourse about xenophobia cannot be discussed outside the
general context of migration, underdevelopment and the prevailing conditions on the African
continent. COSATU is of the view that one cannot understand or confront xenophobia outside
its structural and fundamental roots, which are the generalised conditions of gross abuses,
extreme poverty, competition for scarce resources and varying forms of discrimination and
intolerance of diversity. In South Africa, these were reinforced by apartheid, which
systematised racial and tribal relations and fostered separation, competition and individualism
in society as part of the accumulation process. In addition to its oral presentation COSATU
made the following recommendations:



i. Placing primacy on organising migrant workers as a means to combating the super-
exploitation of these vulnerable sections of the working class.
ii. Condemning and exposing the widespread abuse and exploitation of the migrant workers by
employers, agents and other intermediaries.
iii. Promoting African heritage and affirming the positive values of Ubuntu, while challenging
negative imagery and false linkages between migration and crime in the media.
iv. Linking xenophobia to the call for a comprehensive development plan for the African
continent, as well as campaigning against undemocratic regimes and human rights abuses
which force people from their homes.






6.5 Hate Crimes Working Group






The Hate Crimes Working Group is a coalition of civil society organisations from various
sectors across South Africa, advocating for legislation to deal with hate crimes and
undertaking some of the most comprehensive research on these crimes in South Africa.



The Hate Crimes Working Group proposes hate crimes legislation as a critical component of a
solution to the problem of what is generally perceived as xenophobia in South Africa. Hate
crimes are committed against individuals because of a prejudice the perpetrator holds against
an entire group of people, but directed at an available victim. Because of this, hate crimes
impact not only on the victim of the crime, but also have devastating effects on the entire
community that the victim belongs to (or is perceived to belong to). This makes hate crimes
distinct in nature, in that they serve as a message of intolerance and intimidate and harass not
just the victim, but whole communities. As a result, they not only impact the constitutional


rights of individuals and vulnerable groups and social cohesion, but have no place in a South
African society that strives towards equality for all, non-racialism and non-sexism.



The objective of hate crimes legislation is not only to prevent hate crimes, but to allow for
government and civil society to be provided with vital information about the nature and
prevalence of this type of crime, to help develop appropriate plans and tools for tackling hate
and prejudice-motivated crimes. This is vital to the societal transformation project. The Hate
Crimes Working Group says that Minister Radebe in his former role as Minister of Justice and
Constitutional Development, noted that hate crimes legislation would send a clear message
that crime motivated by hate and intolerance will not be accepted. They submit that it is crucial
for government to send this message, in order to help prevent any repetition of the tragedies in
April this year.



The Hate Crimes Working Group say that currently the police in South Africa rarely investigate
evidence of specific prejudice as a motivating factor in an offence. There is no obligation for
them to do so under the current legal framework. This indicates a gap in the law, which
effectively renders hate crime invisible in the justice system, specifically in course of criminal
trial – while at the same time it is a horrible lived reality for many. The only time at which
evidence relating to prejudice or hate on the part of a perpetrator may be aired in a courtroom,
is potentially at sentencing stage, in aggravation – but this kind of evidence is rarely available
due to the fact that police officers are not obliged to investigate for it.



i. The criminal justice system cannot achieve justice for victims of hate crimes, if it takes no
notice of the hate element of such crimes. The South African Human Rights Commission
in 2009, in its report “Report on the Task Team of Members of Parliament Probing
Violence and Attacks on Foreign Nationals”, specifically recommended hate crimes
legislation be implemented. The Department of Justice has already made progress with a
draft Hate Crimes Bill, and policy framework, on which it consulted with interested parties
in 2013, and the Hate Crimes Working Group discussed this with the honourable Deputy
Minister of Justice in a meeting on 27 July 2015. The Hate Crimes Working Group
proposes fast-tracking hate crimes legislation. It urges the Committee to consider its role
in making hate crimes legislation a reality in South Africa.




6.6 The Legal Resources Centre (LRC)






The LRC is a public interest, non-profit law clinic in South Africa - with a focus on using the
law as an instrument of justice to facilitate the vulnerable and marginalised to assert and
develop their rights; as well as to contribute to the development of human rights jurisprudence
and to the social and economic transformation of society.



The LRC draws a correlation between xenophobic sentiment, sexual violence and the impact it
has on the lives of foreign women in South Africa, leaving foreign women vulnerable with little
or no intervention from significant role players. Rape can be used as a tool to punish and
humiliate women of different nationalities and ethnic groups. Research into this has not been
conducted and perpetrators have not been interviewed to determine their motivation.



The LRC asks what is being done to protect and offer services to foreign women from sex
crimes both related and unrelated to xenophobic sentiments. What is being done to make
foreign women feel safe enough to report sex crimes without fear of the police and citizens
themselves.



Given the backdrop of South Africa’s violent society in which sexual assault against women is
endemic, it is not a mere assumption to argue that women of other nationalities are victims of
such crimes as often, if not more, than South Afrcian woman are. The SAPS does not
segregate the data it provides to the public according to the nationality of victims.




What is evident from research presented in the report of the LRC is that when analysing
xenophobia, there is a considerable disconnect between perception and reality. As with any
fear, most attitudes emanate from a wrong or biased perception of the feared/disliked thing or
person rather than from a real or rational experience. The LRC thus recommend that:



i. More be done to provide clear, well-researched and documented facts about violence
against foreign nationals in South Africa, so that the facts can be clearly reported on. This
will assist in rectifying and addressing the incorrect beliefs and fears of citizens.
ii. Reporting needs to include the nationality of the victims and what motive the crime may
have had, such as prejudice. Tracking these statistics can assist in how to protect victims
in the future.
iii. The South African government taking appropriate steps to alleviate the threats foreign
women face as victims of sexual violence during attacks motivated by prejudice. The
assertion of the LRC is that the South African government’s response to xenophobic
violence has been unsatisfactory listing numerous examples of this in their report.
iv. The State has an obligation to protect. The constitutional rights that apply to everyone in
South Africa (with a few limited exceptions) also apply to all persons physically present in
South Africa. The government is therefore obligated to take reasonable measures to
prevent violence from occurring, and to discourage anything that would serve to
strengthen racial division.




6.7 People’s Coalition Against Xenophobia






The Coalition is made up of 11 South African civil society organisations including Awethu,
SECTION 27, CoRMSA, Lawyers for Human Rights (LHR), Doctors without Borders,
Corruption Watch, the African Diaspora Forum (ADF), the Nine Plus Unions and the Treatment
Action Campaign (TAC). A similar organisation was created in response to the violence which
occurred in 2008. For both initiatives, the Coalition indicated there was a recognition that
xenophobia is a permanent presence in our society and there is a need to maintain vigilance
against xenophobia and, in particular, against any resurgence in violence against foreign
nationals.



Post 1994, government’s initial approach to questions relating to international migration also
reflected its acceptance of international human rights as the core of its policy and legislation.
This included wide public consultations on the Refugees Act 130 of 1998 as well as the
adoption and ratification of the 1951 UN Convention on the Status of Refugees.



The application of that legislation has been challenging particularly in respect to the asylum
process. This is partly due to the large numbers of applicants (despite having drastically
reduced since 2009), but more so due to poor management, a lack of coordinated policy and
rampant corruption. The immigration system has also been geared toward attracting highly-
skilled immigrants while ignoring the realities of South Africa’s migration patterns. Economic
migration and an assumption that economic migrants have migrated voluntarily with the
intention of coming here and abusing the system, it must be recognised that economic strife
(and deprivation) is often a result of conflict and political persecution. Conflicts, particularly on
the African continent, can be of a short duration, but often recur several times, creating a
sense of instability and ongoing danger to the local population. Rejection of those who fled
conflict but do not qualify as refugees after years in the system does not automatically mean
that they have come here to abuse the system.



The Coalition reports that when people approach the DHA, they are often denied access, are
required to pay bribes, are treated with disdain and sometimes physically abused. It is their
view that Parliament’s Portfolio Committee on Home Affairs must take a strong stance against
such abuses. Failure to gain access to documentation complicates access to other services,
such as health. Even with documentation, however, health service providers often deny


services or require payment where no payment is authorised. This problem particularly
touches women who require pre-natal or post-natal care.



The view of the Coalition is that the much of the resurgence of violence against foreign
nationals in South Africa is due in part to the failure, from within and outside of government to
learn lessons from the attacks which took place in May 2008. Since those attacks, there have
been consistent and continued attacks against foreign nationals, particularly shop-owners in
our communities. Reports and research conducted after the 2008 attacks, including by the
Parliamentary Task Force set up in 2008 and the South African Human Rights Commission,
were not taken forward in a meaningful way in order to combat the scourge of violence against
foreign nationals. Whilst the South African Police Services (SAPS) improved communication
with non-governmental organisations and bodies such as the United Nations High
Commissioner for Refugees (UNHCR), this has not been enough to create a safe and secure
environment for foreign nationals.



Public hearings should be held regarding past and future violence against foreign nationals in
order to create a national plan of action to end such violence and to address the existence
(and exploitation) of xenophobia in South African society resulting in attacks which are used
as part of attempts to remove foreign nationals from communities. The Coalition suggest that
an independent hearing process must take place with sufficient resources to ensure
participation of all relevant stakeholders. They submit that such an independent process
should take place through a process similar to that of the Truth and Reconciliation or through
an independent Chapter 9 institution such as the South African Human Rights Commission,
Public Protector or other such institution.



The Coalition indicated that numerous studies into violence against foreign nationals, from as
far back as the 1990s, have pointed to an increase in xenophobic tendencies within South
African society. These tendencies are not confined to one grouping and so cross racial,
income and geographic differences. However, despite the evidence, there remains a tendency
within South African society as a whole, and within some sectors of government in particular,
to deny the existence of xenophobia and to reduce attacks on foreign nationals to mere acts of
criminality no different to any other such criminal attacks against South Africans. Those who
believe that xenophobia exists have been publically accused of being mischievous and
unpatriotic. The Coalition argued that denying xenophobia is very dangerous as it robs the
country of the opportunity of finding solutions to a very real problem.



The Coalition indicated that xenophobia denialism has been a problem since the attacks in
2008. President Thabo Mbeki, repeatedly stated that there was no xenophobia in South
African society and what we saw was simply criminals taking advantage of the situation. This
begs the question: what situation are the criminals taking advantage of, if not attacks that
began because of xenophobia. Many factors have contributed to the large-scale attacks of
2008 and 2015, as well as the ongoing incidents of violence against foreign nationals, albeit
on a more muted level, between those two events. One of those factors is no doubt criminality
and the Coalition would concur that there are criminals who have used the situation to their
own advantage. But this does not mean that the original impetus for the attacks was not
xenophobic in intent and it must also be stressed that criminality and xenophobia are not
mutually exclusive. The Parliamentary Task Force in 2008 recognisee this reality in their
report.



Based on the many years of work and research of its member organisations the People’s
Coalition make the following recommendations:

i. Work directly with communities, has shown that where there has been engagement and
dialogue with all members of the community, incidents of xenophobia occur far less or not
at all.

ii. Such work that is best performed by community-based organisations. However they have
very few resources to do so. In line with the recommendations of the 2008 Task Team


report, the Coalition would recommend that additional resources, such as funding through a
“We are All Africans” programme be made available to community-based organisations.

ii. In addition, a national dialogue should be created, perhaps through the same programme,
to promote a type of social cohesion which includes all members of the community,
including foreign nationals, breaks down misperceptions of foreign nationals, and
discourages xenophobic sentiments and statements as counter-productive to nation-
building.
iii. To remove inequalities and unfair exploitation, Parliament must perform its oversight role to
ensure that the DHA fulfils its mandate and complies with its own legislation. It should also
engage with the Ministry of Home Affairs in its policy reformulation to ensure that any new
policy complies with our constitutional obligations of human dignity for all as well as
complying with our international human rights obligations.
iv. The Coalition urge Parliament to understand the complexities of migration and come out
firmly against any justification for the violation of the rights of foreign nationals. The flare-up
of violence intended toward foreign nationals have also affected some South African
citizens who are seen as outsiders within their communities.




6.8 Sonke Gender Justice






Sonke works in South Africa and other African countries to ensure the development of just and
democratic societies. Sonke works with women and men from all walks of life, but has always
had a strong commitment to addressing the needs of socially excluded communities and
worked within the broad areas of migration and xenophobia.



This submission contains the transcript of the full public address of King Goodwill Zwelithini at
a ‘moral regeneration’ event held in Pongola on Human Rights Day 2015. This submission
analyses extracts from the King’s speech and provides evidence that the King expressed
strong anti-foreign national sentiment, and attributed a range of negative and harmful qualities
to cross-border migrants that appeared to have elicited strong popular appeal among the
King’s supporters.



Sonke report that after a complaint was laid against King Zwelithini with, the South African
Human Rights Commission (SAHRC), the King had agreed to cooperate throughout the
process , but the SAHRC had not made any findings yet. The King’s address is 50 minutes
long and covers a wide range of topics that include the work of the police, the loss of respect,
the destruction of property, laziness, climate change, and tourism, among others. Several
sections in the address focus on cross-border migrants and these are set out in more detail
below. The King introduced the topic of cross-border migrants. He claimed their alleged
propensity to take other people’s money and expressed his fear that foreign nationals might
overpower the police. Very soon thereafter, the King seems to suggest that he believes other
nationalities view South Africans as fools and that the South Africans deserve to be robbed of
their resources.



Sonke contend that the crux of the concerns over foreign nationals raised by the King in his
speech suggest that foreign nationals have taken over and degraded entrepreneurship and the
selling of goods, while making communities ugly and unhygienic. He suggested that cross-
migrants are vermin (‘lice’, ‘bedbugs’, ‘wolves in sheepskins’) and urged the government, and
the police in particular, to remove these elements, and also for foreign nationals to go back to
their own countries. The King pointed out at various times that nationals from one country
should not stay in another country to make a living, but should rather return to their country of
origin.



Following the King’s address, it was reported that he had apparently called on traditional
leaders to make sure that foreign nationals who seek to settle on their land are legally within
the country. Foreign nationals who seek to settle on Ingonyama Trust-controlled land should
be introduced to him in the company of their countries’ ambassadors. He noted that they


should follow additional administrative processes, such as double-checking the authenticity of
documents and getting additional certifications from DHA or SAPS. It should be noted that as
a monarch in a constitutional democracy, the King does not have the legal authority or
mandate to issue any such orders.



Sonke indicate that after public pressure, the King addressed an Imbizo at the Moses Mabhida
stadium that was attended by thousands of his followers, traditional leaders, national and
provincial government leaders in KwaZulu-Natal on Monday 20 April 2015. The King called for
peace. Yet, he claimed that his words in Pongola were taken out of context and said that he
did not incite violence. This event provided an important opportunity for the King to apologise
for his remarks in Pongola but he failed to do so. Sonke indicated that while the King should
not carry the blame alone for the violence, his comments in Pongola inflamed existing
sentiments in a context of already high levels of generalised violence, and extremely high
levels of violence against migrants and refugees. The extracts from the King’s actual speech
are presented as evidence that his address vilifies cross-border migrants, shows little
understanding of the material conditions and violent contexts that many cross-border migrants
try to escape from in their countries of origin, and disregards South Africa’s international legal
obligations, as well as the ethical imperatives, to provide refuge for such vulnerable
populations. Sonke believe the King’s words in Pongola amount to ‘hate speech’ as set out in
the Promotion of Equality and Prevention of Unfair Discrimination Act (the Equality Act).



In addition, Sonke recommend the Committee:

i. To consider the new evidence not previously available in the public domain, and to hold
King Zwelithini accountable for his words.
ii. To encourage King Zwelithini to issue a full apology for his words in Pongola in March
2015 and to issue a public statement with unequivocal support for the respect of cross-
border migrant rights, to condemn all forms of violence against migrants and to encourage
his followers to do the same.
iii. Requests the King to initiate and actively participate in community dialogues between
South Africans and cross-border migrants with the aim of building stronger and more
cohesive communities; and
iv. Financially support the work of organisations that implement programmes to foster social
cohesion and respect for diversity within communities, with a particular emphasis on
KwaZulu-Natal.




6.9 Southern Africa Litigation Centre (SALC)






SALC is a non-governmental organization based in Johannesburg, South Africa. It aims to
provide support, both technical and financial, to human rights and public interest initiatives
undertaken by domestic lawyers and local civil society organisations in Southern Africa. The
main concerns the SALC wish to be addressed by the Committee are:



Violations of non- rights of migrants in South Africa: loss of lives, injuries to persons, damage
to private property and the infringement of dignity. The SALC raises the question of how
specific incidents are being resolved and what is being done to ensure that such events are
not repeated. How will affected people be protected directly after attacks and how will the
country be made a safe place for them rather than simply helping them to leave after
outbreaks of violence.



The SALC are concerned about incitement to violence by persons in positions of authority.
They wish to know how have the authority figures who have made comments which led to
violence and played a role in perpetuating xenophobia and intolerance in the country been
dealt with and how the country is making it clear to figures in positions of authority what our
national stance on the rights of foreign nationals are.




After the incidents of police raids and mass deportations, the SALC indicate that officials were
not following the correct procedural safeguards and violating the rights of foreign nationals,
and wish to know how the staff involved will be disciplined and how the State will go about
educating the police force about correct protocol and procedure in these situations.



SALC calls on the Committee to remind the South African government of the report compiled
by the SAHRC after the 2008 xenophobic attacks and call upon the government and the
SAHRC to immediately take steps to implement the recommendations found therein to:



i. Protect migrants, refugees and other vulnerable foreign nationals from further attacks, by
increasing impartial and effective police presence in high-risk areas and immediately
implementing conflict resolution initiatives in these areas.
ii. Provide humanitarian and other social assistance to those affected by the xenophobic
attacks in the country, including counselling for trauma and access to information on
services on durable solutions for refugees and asylum-seekers.
iii. Bring perpetrators of violence against foreign nationals to justice. To facilitate such
prosecutions the DOJ should set up special courts, as was done during the 2010 World
Cup in South Africa. Information on accessing these courts should be widely
disseminated.
iv. Investigate and bring to justice the instigators behind the perpetration of the violence.
v. Condemn unequivocally comments by persons in positions of authority and influence
which may amount to incitement to violence.
vi. Effectively engage the broadest possible South African public, in order to curb and
eradicate xenophobia and xenophobic violence.
vii. Advise and assist all those who have been victims of violence to seek redress.
viii. Assist refugees and asylum seekers who have lost their permits to have these re-issued
and put in place concrete plans for their reintegration into communities.




6.10 Yonela Diko – Journalist






Mr. Diko proposes that each community has an unspoken informal set of codes which holds
the community together irrespective of whether you are a foreign national or just new to the
area. Integration (or rejection) lies in how quickly one identifies and complies with these
unwritten social norms. Should the new arrival go as far to oppose or ridicule the shared
community norms, hostility from the community is to be expected. The community protects
those members who actively participate, care for and contribute towards the cohesion of that
community but the reverse then also becomes true.



Mr. Diko outlines examples from his personal experience of the Somalian shop keepers in his
area, who isolate themselves, appearing to show disdain for the community they live and work
in and were dismissive of that communities poorer members as well as using the advantage
their money brings with the local women.



Mr. Diko proposes that Africans’ identity has been so scared by colonialism that it cannot see
before or beyond it. Its legacy has degraded society to a ‘dog eat dog’ mentality where
African's no longer have a proud unified racial identity but rather guard themselves against
their differences. Mr. Diko recommends that:

i. Foreign nationals should observe the township codes that all people who come from
outside must observe.
ii. A coordinated continent wide Afro-optimism campaign would go a long way to uplift the
African identity.




6.11 Scalabrini Centre of Cape Town






Scalabrini Centre of Cape Town (SCCT) is a registered NPO that perceives migration as an
opportunity and is committed to alleviating poverty and promoting development in the Western


Cape while fostering integration between migrants, refugees, and South Africans. In providing
assistance, they advocate respect for human rights and use a holistic approach that considers
all basic needs.



The research presented in the report of the SCCT suggest that triggers to the 2008 violence
were political and leadership vacuums, lack of conflict resolution mechanisms, and a culture of
impunity in which local leaders (both official and self-appointed) mobilised community
members to exert control over the local area.



A lack of conflict resolution mechanisms resulted in conditions where the police were unable or
unwilling to engage with communities to address issues that arose prior to the attacks. This
failure resulted in communities perceiving an unwillingness on the part of the police and other
leaders to address their concerns and led to the use of violent methods by the community to
address the issue.



SCCT question how the police force and community leaders have been trained and
empowered to be able to better handle xenophobic conflict in the appropriate manner? What
conflict resolution mechanisms have been put in place to assist communities to resolve issues
in a constructive way with the foreign nationals living in these communities? How are the
police force and community leaders being educated about the rights of foreign nationals and
the consequences of these rights being violated?



In areas that were not affected by anti-foreign national violence, research found that
community leaders abided by the rule of law and also represented and protected the rights of
all residents in the community, including foreign nationals. In doing so, community meetings
were held in which issues were discussed and the greater concerns of protecting the
community prevailed over violence.



Progress on these two areas has proceeded haphazardly since 2008. In regards to the DHA
processing of foreign nationals, particularly those in the asylum system, the situation has
deteriorated markedly since 2008. The most visible restriction has been the closures of the
Johannesburg, Port Elizabeth, and Cape Town Refugee Reception Offices (RRO) to new
asylum applicants leaving only three RROs open to new applicants across the country.



The practical result of this policy has been the creation of a large population of undocumented
asylum seekers, both those unable to access the remaining RROs open for applications as
well as those with expired permits who are unable to travel and who are vulnerable to
exploitation by a range of actors. These individuals are also less likely to report crimes or
access health services due to their undocumented status. It was observed during the recent
spate of attacks, that the documentation status of foreign nationals is used as a justification for
violence. Measures need to be put in place to speed up the processing of refugees. This plan
needs to be issued to Parliament.



Litigation has been undertaken by civil society organisations against many of these restrictive
policies and although the courts have found many of them unlawful, the DHA has not abided
by the court orders in many instances. The failure of the Department to abide by these court
orders and fulfil its obligations to assist and document asylum seekers and refugees reinforces
the notion that asylum seekers and refugees fall outside of the law and are not worthy of legal
protections. This has wider implications for society and the rule of law but is particularly
harmful in regards to xenophobic violence.



With regards to the matter of speedy and efficient trials for individuals suspected and charged
with committing violent acts towards foreign nationals, progress has also been haphazard.
With regards to the 2015 attacks, the National Prosecuting Authority attempted to open special
courts to address the attacks. However, recent reports have shown that little has been done to
bring those responsible to justice.




Over the past years, discrimination against foreign nationals in the public service sector has
been observed. Structural discrimination by state officials in various sectors such as health
care, or public education, informs, shapes and perpetuates public sentiment. Examples of this
are given in the report for health care workers and hospital administrative staff, SAPS and at
public schools. This discrimination is reinforced by state officials who make public comments
referring to asylum seekers as illegitimate, equating foreign nationals with criminals, and
referring to foreign nationals as unworthy recipients of state resources.



The SCCT recommend that the Ad Hoc Joint Committee consider:



i. How to increase respect for the rule of law with regards to migrants and to investigate the
difficulties the justice system has encountered in attempting to prosecute those
responsible for crimes against foreign nationals.
ii. That the role of political leadership, at the national, regional, and local levels, is the key to
inciting anti-foreign national violence in the recent attacks in Kwazulu-Natal and Gauteng.
How is the government going to hold these entities accountable? How will the government
go about re-educating these key groups on official policy and laws for upholding the rights
of foreign nationals?
iii. The 2008 Report of the Joint Task Team highlighted the need for the Portfolio Committee
on Home Affairs to continue to exercise oversight over the DHA to ensure that it is able to
fulfill its institutional mandate; in particular, it noted that 'regard should be given to
ensuring the Department issues foreign nationals with correct documentation, maintains
adequate records and ensures that corruption is rooted out of the Department.'
iv. The Portfolio Committee on Justice and Constitutional Development 'should monitor
progress in processing accused persons by the Special Courts established to speedily
address the cases of violence against foreign nationals'.
v. Closures of several Refugee Reception Offices has led to a restriction in the freedom of
movement of asylum seekers who are required to report to the RRO of application for any
administrative action on their permit. The DHA needs to inform parliament of how it is
proposing to address the vacuum created by these closures.
vi. The DHA needs to abide by the courts ruling. Failure to do so should have consequences
and the director general should be held accountable.
vii. How non-discrimination on the basis of nationality can be minimized through legal and
policy frameworks which allow for equal access to civic services, in line with the Bill of
Rights.




6.12 Jeena’s Warehouse Workers / Professional Transport & Allied Workers Union



According to their union representative, Mr. M Jama: on 15 December 2014 employees who
worked for Jeena’s Warehouse embarked on a protected strike in order to improve their
working conditions. The employees had 10 years of service but were still employed as casuals
not assured of being given work or payment for the given day when they arrived.



PTAWU also reports that during that strike, the employer arranged security officers and
employed foreign nationals and had some employees who were working during the strike
escorted by security. The security officers were reported to be Nigerians and Zimbabweans
and carried firearms. The community felt threatened by the carrying of firearms and pointing
them at community members which erupted in fighting. It was also reported an employee was
dismissed because she was talking with those employees who were on strike.



On 17 June 2014 PTAWU reports meeting with the Department of Labour and the CCMA
where all parties agreed that the strike must be terminated. The strike was suspended with an
agreement that employees would commence their duties on 23 June 2015. However the
employer on 23 June 2015 laid charges of assault and intimidation on the effected employees
and on 25 June 2015 all employees were dismissed without a hearing.




At the time of reporting Jeena employees were still dismissed pending a case at the CCMA on
27 and 28 October 2015. The effected community was still aggrieved because Jeena's
Warehouse refused to negotiate in good faith refusing to correct even one proposal that was
made by the union during the CCMA certified strike. Parliament was requested to consider the
dangerous possibility of the CCMA dismissing the case of unfair dismissal and the possibility
of repeated violence against foreign national nationals. The remedy that the employees are
hoping for is being reinstated at work and for the Department of Labour to inspect the working
conditions of these employees.



6.13 Commission for Gender Equality (CGE)



The CGE report submitted to the Committee was compiled after a fact finding trip undertaken
by the CGE to the Chatsworth Shelter set up for the foreign nationals fleeing the threat of
violence in Durban, KwaZulu-Natal. The purpose of the trip was to assess the conditions under
which foreign nationals who were displaced from their homes and communities due to the
incidents of attacks in Durban were living in the temporary shelter established. In line with the
CGE's constitutional mandate to promote, protect and advance gender equality, the trip sought
to focus special attention on issue of gender equality and the plight of women and children, to
ensure that their rights were observed.



The Report contains the findings and recommendations based on insights and information
gathered by the CGE delegation by utilising onsite observations, focus group discussions,
informal conversations and dialogues conducted with the refugees, site management officials
and non-governmental organisations working with those fleeing potential further violence
against foreign nationals in the area. The CGE team was led by Commissioner Pinkie
Sobhahle, accompanied by two other Commissioners and members of the CGE Secretariat
from Gauteng and CGE staff from KwaZulu-Natal Office.



The findings contained in the CGE report, come to the overall conclusion that the Chatsworth
Shelter operated within the minimum required standards. While some of the minimum
standards were met by the KZN Provincial Government, some were not met. On the issue of
security, the study concludes that adequate security was provided to the foreign nationals who
reported feeling safe and protected. However, while the site was easily accessible through two
access gates, on both these gates the CGE team felt that the security guards did not exercise
adequate and due care in terms of controlling access to the site through the screening of
vehicles as well as their passengers. To illustrate this point, the CGE vehicle was not
subjected to standard security control protocols, including being adequately searched for
potential security threats such as possession of banned objects including weapons. In
addition, no member of the team was asked to declare if they had any weapons on them, and
no metal detectors were used at the gate.



While doing site inspection, the CGE team noticed that the premises were not clean enough.
The Expanded Public Works Programme (EPWP) was in place to keep the premises clean;
however the CGE team was not impressed by the state of ablution facilities and the yard as a
whole. There were toilet paper strips, used sanitary pads and an unacceptable amount of
refuse that was lying all over the yard. What was of concern was that the children were playing
with the dirty water from the toilets. CGE acknowledged that an effort was being made to keep
the yard clean. There should, however, had been more frequent clean ups to ensure that the
premises are habitable. The team noted one jungle gym for the children to play with, however,
this was not enough to cater for the number of children at the shelter.



With regards to the provision of health services to the victims, the KZN Provincial Government
made efforts to adhere to health standards as set out by the UNHCR. However, the conclusion
reached by the CGE team was that health standards could have been improved. A supply of
condoms could have helped to prevent unwanted pregnancies and prevent the spread of


sexually transmitted diseases. A full time mobile clinic could have helped provide ease of
access for medical care for the foreign nationals. What the CGE team noted was that there
was no supply of chronic medication for foreign nationals. This increases the risk of relapse of
patients. The only arrangement that existed was for emergency cases where patients had to
be taken to hospital by an ambulance. Moreover, pregnant women have special needs over
and above ordinary women. These could be have been prioritized. Prenatal and post natal
clinics could have ensured that the pregnant women's health needs and their babies are taken
care of.



The CGE team also concluded that the foreign nationals had enough clothing as well as
blankets to protect them from the harsh weather conditions. This is in spite of some complaints
noted from the refugees regarding clothing which was not appropriate for religious and cultural
reasons. On the issue of food, the team concluded that adequate nutritious meals were
provided to the refugees. While the issue of cultural and religious preferences with respect to
food was raised, the CGE team concluded that sufficient healthy meals were provided. Based
on the findings relating to children dropping out of school due to being held at the shelter, the
CGE report concludes that the right of access to education of the children was violated by the
site management and the KZN Provincial Department of Education by failing to ensure that the
children continued to attend school even while housed at the shelter.



Emerging from the findings and insights contained in their report, the CGE make a number of
recommendations for action by the various stakeholders and role players in the province. The
CGE recommend that:

i. Broader public debate be initiated by the KwaZulu-Natal Provincial Government, with
relevant stakeholders and role players, to understand the underlying causes of xenophobia
in the province and ways of combating this phenomenon. Such as debate should be part of
the broader debate within the country regarding the underlying causes of xenophobia and
the treatment of foreign nationals by South Africans. Furthermore, a dialogue with women
who are victims of the attacks should be held where they share their experiences and raise
recommendations on how they could be assisted.
ii. Proper security protocols be observed and enforced at all times to ensure the security of
residents at shelters. In particular, all vehicles and pedestrians should be thoroughly
checked for possession of banned substances and objects, particularly weapons. A register
should be retained to ensure that all individuals seeking to enter the premises of the shelter
are required to identify themselves and produce some form of identification and to state
their reasons for entering the premises of the shelter.
iii. The site management make all the necessary arrangements to ensure that families and
couples, especially married couples, are afforded the opportunity and space to live together
instead of being split up. In addition, it is recommend that site management endeavour to
ensure the privacy of families, especially mothers and pregnant women. The issue of
privacy for women at shelters is important. The CGE team noted that while women were
provided with dignity packs to use during their monthly menstrual cycles, some of these
packs were inadequate. Also the women did not have the necessary privacy which they
needed during such periods. In addition pregnant women should be provided with pre-natal
and post-natal care at the shelter. The CGE team took note of many pregnant women who
were not provided with such care. Post-natal care is particularly important to ensure
recovery after child birth. CGE also recommend that breastfeeding mothers be given priority
in terms of food rations.
iv. Victims of Muslim Religion are provided with a place of prayer, it is also recommended that
they be provided with appropriate meals and be given the opportunity to prepare their own
food should they wish to do so.
v. A safe play/recreational space be created for the children housed in the shelter with the
necessary facilities for the children to play with. Finally, for the children who had to drop out
of school due to the attacks, CGE recommend that the Department of Education put the
necessary measures in place to ensure that the children are not denied their right to
education. If necessary and where feasible, they recommend that the Department of







Education makes arrangements to provide transportation and security for the children at the
shelter to continue attending school. Alternatively, they recommend that the Department
explore the idea of securing the services of tutors to come to the shelter to render
educational services to the children. In addition, the Department should make specialist
services such as psychological/counselling services available for the displaced children.








7. Committee Findings



The Committee, in the process of probing violent attacks against foreign nationals made a
distinction between the root causes of the problem, the symptoms or indicators of the problem
and results of the problem. The root causes of the problem were identified as social, economic
and political issues affecting both South African nationals and foreign nationals. The
Committee identified symptoms or indicators of the problem as how those affected by the
social, economic and political causes responded to their situation. The Committee made the
following findings:



7.1 There was a rapid coordinated response in assisting those affected once the violence
broke out in 2015. Security, shelters, transport and marches, community meetings on
reintegration and repatriation, amongst others, were organised by Government involving many
role players in a coordinated way.



7.2 The Committee found, as reported by the IMC on Migration, that there was an immediate
intervention and long term coordination of different departments and tiers of government as
well as business and NGO’s in preventing recurrence of the larger scale violence noted in
2008.



7.3 In terms of foreign nationals who were affected by the violence that took place in 2015, the
Committee found that when they are affected by high levels of poverty, unemployment and
political instability; they leave their countries of origin and come to South Africa to seek
employment, establish small businesses and seek refuge particularly in townships and rural
areas. Those affected by unstable political conditions in their countries of origin come to South
Africa as political refugees often establishing themselves in such small businesses for survival
purposes. They regard South Africa as a politically stable and peaceful country where one can
start a new life. There are also those who come to South Africa for education purposes and as
professionals who are able to obtain work permits.



7.4 The Committee found that South Africans affected by high levels of unemployment and
poverty establish themselves in small business such as spaza shops, tuck-shops, hair salons,
car mechanics, panel beaters and street vendors. These small businesses function at a
survivalist level and receive minimal or no support from government and thus are particularly
sensitive to increased competition.



7.5 Out of seven people who were killed during the violence in 2015, the Committee found that
three were South Africans and four were foreign nationals. Two South Africans were killed by
stray bullets from foreign nationals with unregistered firearms shooting at those stealing from
their shops. One foreign national was killed when pursuing a thief from his store. Another
foreign national was killed when a Somali store was set alight. Two foreign nationals were
killed as a result of a dispute later found to be a domestic issue between those foreign
nationals.



7.6 The main causes of the violent attacks were criminal actions that started with stealing of
goods from foreign owned spaza shops by South African criminals who are often drug addicts.
The spaza shop owners would react by shooting at those who steal from their spaza shops
using unregistered firearms rather than reporting to the police. When this happens and
someone is killed, local communities retaliate by looting spaza shops owned by foreign
nationals also rather than reporting to the police.




7.7 There is some exploitation of foreign nationals by organised business requiring longer
hours for less pay than South Africans, particularly in sectors such as tourism, taxi services,
gardening and domestic services, car guarding and security services etc. This creates
resentment amongst South Africans. Foreign nationals are also exploited due to not being
unionised or being undocumented.



7.8 There is a disadvantage experienced by South Africans in partnering with foreign owned
business and the labour market through the foreign nationals’ perception that South Africans
are lazy.



7.9 The lack of implementing a social cohesion programme, following the 2008 violence
against foreign nationals, all influence the tendency for foreign nationals to not integrate into
the communities in which they reside. In rural areas there is more integration due to better
established means of social inclusion. There is, however, still a lack of integration even in rural
areas. This is indicative of a need for more initiatives aimed at integration focussed both on
South Africans and foreign nationals. Lack of integration leads to challenges in accessing
services. The predominance of illegal entries in the country accentuates the difficulty in
government planning to provide services for them.



7.10 There are some streets in Durban and Johannesburg that are operated exclusively by
foreign nationals (as ‘no-go’ areas for South Africans). These include certain areas such as
Mahatma Ghandi road and Russell street in Durban. The isolation of foreign nationals in South
Africa contributed to a culture of non-cooperation with South Africans in business and the
tendency for dominating certain trade sectors and locations. This results in inadequate
services provided to these communities in comparison to the broader community.



7.11 Some shops run by foreign nationals appear to be owned by big businesses which fund
them exclusively and offer the advantage of procuring goods cheaply, as well as sourcing
counterfeit goods. South Africans were unable to access the advantage of big business
support. There was an indication that these owners were not necessarily even residing in
South Africa. This also contributed to a shift of ownership of small businesses from primarily
locals to foreign nationals in several areas for which the IMC on Migration provided statistical
evidence.



7.12 It was found that despite the offer of reintegration by the Mkhambathini Local
Municipality; there were still around 150 foreign nationals being offered shelter at a private
farm in Cato Ridge (Hope Farm, owner A. Wartnaby). The foreign nationals at the farm have
refused offers of reintegration or repatriation offered by the Municipality after they left other
shelters in part due to wishing to be resettled in a third safe country.



7.13 There were a number of security related risks found by the Committee such as in
Gauteng where indications were that some ex-military personal from other African countries
were residing in communities. In this regard, the Committee identified that this was a security
risk within some migrant groups in the country. In addition there was a mushrooming of
unregistered places of worship which was of concern. There were also small businesses such
as salons and NGOs that were found to be a front for illicit activities such as brothels or trade
in narcotics.



7.14 Many foreign nationals seeking asylum in the country were found to in fact be economic
migrants.



7.15 Most of the immigrants who ran away from their businesses and residential areas, did
that out of fear of being attacked and were mainly influenced by the media especially social
media which used manipulated images. Those who feared that they would be attacked, ran to
police stations for protection which showed a trust that this protection would be provided by


the South African authorities as well as demonstrating foreign nationals’ understanding of the
principle of the South African Constitution which guarantees protection of all people in South
Africa.



7.16 The Committee agreed, in relation to the violence against foreign nationals, that
interventions should not only focus on the responsibilities of the South African government and
society, but that governments in migrant countries of origin should also take responsibility for
the political and socio-economic conditions that caused their citizens to flee their home
countries and come to South Africa in search of a better life. Several foreign nationals
indicated the desire to return to their countries once the circumstances improved. This
reinforced the need for South Africa to play a pro-active role in peace-keeping and other
assistance on the African continent.



7.17 The violence related to migrants was found to be amplified by these complex challenges:
. Rapid urbanisation in relation to land use planning and management.
. Pressure on basic services and amenities.
. Absence of permits means many foreign nationals cannot enter the formal economy
(cannot open a bank account, apply for a formal job, apply for credit or loans, pay taxes
or buy a car) so are forced into the informal economy out of necessity to earn an
income.
. Regulatory compliance particularly for small businesses needs to be improved in terms
of local by-laws on health and safety, land use zoning and the issuing of business
permits.
. South Africans qualifying for RDP housing, rent them out to foreign nationals. It is
common for these foreign nationals to then open spaza shops in these houses.




7.18 The Committee noted foreign nationals who had an unfair business advantage in
township and rural spaza shops. This is due to the fact that wholesalers are operating spaza
shops. The person running the shops do not own them and this makes it difficult for SAPS to
trace persons implicated in crimes.






7.19 The Committee also noted the proliferation of shopping malls with no consultation or
partnership with existing small businesses. This lack of consideration of development of
communities results in the closure of many small businesses.






7.20 The Committee acknowledged the efforts and report of the IMC on Migration in
overseeing the prevention and response to violence against foreign nationals.






7.21 The Committee noted, that many foreign nationals are integrated into urban and
traditional communities where they live peacefully with their South African neighbours, many of
whom they married and have families with. It is arguable that the interventions of the South
African government at local and national level had in some ways improved the facilitation of
entry of other nationalities into South Africa.





8. Conclusion



The Committee concluded that there are some people within South African communities who
use derogatory language such as the word “kwere kwere” when referring to foreign nationals.
Such a tendency is not different from using the “k” word which was used by white people in
South Africa when referring to black people during the apartheid era, and the other “c” word
when referring to Indians. In the United States of America, black Americans were called the “n”
word and in Canada the natives were called “Red Indians”. The use of these words amounts
to discrimination against another person on the basis of race, colour of the skin, geographical
location and country of origin and can be construed of as xenophobic. In South Africa such
discrimination is denounced both in the Freedom Charter which was adopted in 1955 by the


Congress of the People and in the South African Constitution of a democratic South Africa
which was adopted in 1996.



The Committee concluded that the general high levels of crime, inequality and competition for
scarce resources have a negative impact on both citizens and non-citizens in South Africa.
The increasing competition for scarce resources amidst low economic growth and a growing
population of unemployed low skilled South Africans is accentuated by the rise in unskilled
foreign nationals immigrating into the country from the rest of the African continent. It was also
discovered that there was a tendency of violence targeting foreign nationals particularly in the
context of rapid urbanisation and high competition between small businesses and work
seekers in already densely populated townships. The improved coordination of different
departments and tiers of government and the rapid response in assisting those affected was,
however, noted in preventing recurrence of the larger scale violence noted in 2008.



Inasmuch as the vast majority of the country shows no indications of violence specifically
targeting foreign nationals, the Committee noted that a comprehensive social cohesion and
integration framework was still lacking. This is particularly for large urban areas and in the
prejudice that could still be found in how government services were offered. A key area of
intervention identified was the need for better coordination and monitoring of the provision and
enforcement of small business licences, which appears to be adding to tension between
aspects of communities.



The recommendations which follow emerged after the Committees engagements, oversight,
meetings and consideration of written submissions.



9. Recommendations




Emanating from its engagements, oversight, meetings and public submissions, the Committee
recommends the following:



1. The Committee in recognising that the actual problems which affect both South Africans
and foreign nationals are socio-economic; recommends the affected countries and
Parliaments work together to address socio-economic and political conditions as well as in
promoting peace and stability.
2. Government through the work of institutions such as the IMC on Migration, and such
bodies at a provincial level, should continue to monitor, pre-empt and protect vulnerable
communities. Operations such as Fiela should be supported until such time as the root
socio-economic causes of violent attacks are addressed.
3. There is a continued role for the South African Government to play in peace-keeping and
other assistance on the African continent.
4. There is a need for better policing of containers and counterfeit goods by South African
Revenue Services at ports of entry such as through the use of cargo scanners.
5. There needs to be an emphasis, not only on the rights, but also the responsibilities of
migrants. The South African Human Rights Commission could contribute to such education
campaigns in the country.
6. The continued progress reports of the IMC on Migration should be tabled with the
respective Parliamentary Committees for monitoring of implementation of the
recommendations.
7. The Department of Small Business Development should better assist South African small
businesses both in financial and non-financial needs.
8. Government through the Minister of Arts and Culture should further promote social
cohesion by all government departments across all races and nationalities, including
through the use of intercultural sport.
9. Municipal Government in Gauteng and KwaZulu-Natal needs to better ensure the provision
and monitoring of business permits. Many businesses, such as those in residential houses,



are not compliant with municipal by-laws and there is a tendency of issuing too many
licenses in one area.
10. The Provincial Government of Gauteng, KwaZulu-Natal and the Western Cape should
exchange ideas on addressing prejudicial violence since each province has different
strengths.
11. The Premier of KwaZulu-Natal should submit to Parliament and publish widely the report of
the Special Reference Group once it is completed.
12. The Premier of Gauteng should ensure that mechanisms are put in place to better ensure
implementation of Government policy of 30% procurement from Small, Medium and Micro
Enterprises and 70% local procurement.




Report to be considered.

I .

 SOUTH AFRICAN HUMAN RIGHTS COMMISSION

AFRICAN DIASPORA FORUM AND 30 OTHERS COMPLAINANTS

And

KING GOODWILL ZWELITHINI RESPONDENT

PRELIMINARY REPORT

1 Introduction

1.1 This report sets out the findings and recommendations of the South African Human Rights Commission (hereinafter referred to as “Commission”) in respect of complaints lodged with the Commission by African Diaspora Forum and 30 other complainants. 2

1.2 The complaint relates to alleged utterances by King Goodwill Zwelithini (hereinafter referred to as “Respondent”) delivered during a moral regeneration meeting in Pongola in the KwaZulu Natal Province on 15 March 2015.

1.3 The Complainants in this matter assert that the utterances of the Respondent amounted to hate speech and were calculated to incite people to violence against foreign nationals1 in South Africa in general, and the KwaZulu Natal Province in particular.

1 The Commission is aware of the different connations that are ascribed by different commentators to the terms “migrants”, “non-nationals”, “foreign nationals”, “non-citzens” and “foreigners”. Purely for purposes of consistency in this report the word foreign national refers to persons from other countries who reside in South Africa.

2 Parties to the dispute

2.1 The 1st Complainant in this matter is the African Diaspora Forum, a non-profit organisation whose principal offices are situated in Johannesburg, in the Gauteng Province.

2.2 The 2nd Complainant is Lawyers for Human Rights, a non-profit organisation whose principal offices are situated in Johannesburg in the Gauteng Province.

2.3 The 3rd – 31st Complainants are private individuals residing within the Republic and outside of the Republic, whose fuller and particulars are known to the Commission, but withheld to preserve anonymity.

3

2.4 The Respondent is the King the Zulu people. The Respondent is recognised as a traditional leader in South Africa in terms of Chapter 12 (Sections 211 and 212) of the Constitution of the Republic of South Africa of 1996 (hereinafter referred to as “Constitution”).

2.5 In addition to the Constitution, the Traditional Leadership and Governance Framework Act 41 of 2003 (as amended) sets out the process of recognition of traditional communities and how traditional leaders, including, kings are recognised within South Africa.

2.6 In terms of Section 2A (4) of the Traditional Leadership and Governance Act, the Respondent is obliged to “transform and adapt customary law and customs relevant to the application of this Act so as to comply with the relevant principles contained in the Bill of Rights in the Constitution, in particular by -

a) Preventing unfair discrimination;

b) Promoting equality…..”

3 Nature of complaint

3.1 During the month of March, 2015 a total of 31 complainants (hereinafter referred to as “complainants”) lodged separate written complaints with the Commission in terms of the Commission’s Complaints Handling Procedures.

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3.2 In a nutshell, the complainants, who consisted of public-spirited individuals and non-governmental organisations, state that the alleged utterances of the Respondent amounted to hate speech within the meaning of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA) and caused or were capable of causing violence against foreigners in South Africa.

3.3 Consequently, the Complainants sought the intervention of the Commission to facilitate the nature of relief set out in paragraph 4 below, or such additional or alternative relief as the Commission may find appropriate within their mandate.

3.4 The complaints were lodged at a time when the Commission was already seized with a number of complaints relating to low-scale xenophobic attacks that had taken place in parts of the country.

4 Nature of Relief Sought

4.1 Taken together, the nature of relief sought by the Complainants was the following:

4.1.1 That the Respondent be directed to retract his statements publicly;

4.1.2 That the Respondent be directed to issue an apology;

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4.1.3 That the Respondent be subjected to an investigation, and that the Commission issue a declaration that the Respondent’s statement amounted to hate speech or to any other human rights violation;

4.1.4 That the Commission institute litigation against the Respondent in the Equality Court for determination of whether the Respondent’s statements amounted to hate speech, and seek appropriate sanction in terms of the Promotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA).

5 Background and context of the complaint

5.1 On 15 March 2015, it is alleged that the Respondent delivered a speech during a moral regeneration event to an audience of residents and subjects in Pongola, KwaZulu-Natal Province.

5.2 The speech was delivered in the isiZulu language.

5.3 The Complainants alleged that in the course of the delivery of his speech, the Respondent uttered statements that amount to hate speech and that were capable of inciting violence against foreign nationals in South Africa, and the KwaZulu Natal Province in particular; and that it in fact

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did incite the acts of violence against foreign nationals that took place on the 30 March, 2015 in Isipingo, in Durban in the KwaZulu Natal Province.

5.4 It is important to note that at the time of lodging of complaints with the Commission, and at all times material to this investigation, none of the Complainants were able to furnish the Commission with a copy of the speech to which their complaints referred.

5.5 It is also important to note that none of the Complainants claimed that they had personally attended and been present at the moral regeneration event at which the Respondent had spoken and uttered the words in question. All of the Complainants referred to and appeared to rely on what one or the other specific print and electronic media actors had reported that the Respondent had said, or the media in general.

5.6 Indeed, at the time of the lodgement of complaints with the Commission, the Respondent’s remarks had been widely covered by the South African print media and also appeared as a news item on the Internet.2

2 See for eg, ‘So many questions’ Sunday Times 26 April 2015, page 21, see also ‘King slams Gigaba over xenophobia ‘allegations’ The Star 13 April 2015, page 4. ‘Unapologetic Zwelithini urges peace’ Sowetan 21 April 2015, page 9. ‘King’s peace initiative hailed’ The New Age21 April 2015, page 1, ‘Zulu king wants to send complaints to rights commission’ The Star 30 March 2015, page 4. ‘Deep-seated issues crux of CBD violence’ The Star 16 April 2015, page 4. ‘Foreigners shutter shops, fearing for their lives’ The Star 16 April 2015, page 4. ‘Victims sheltered at packed police station’ Sowetan 2 April 2015, page 4. ‘Monarch wants a peace accord signed’ The Star (undated) page 3. ‘Jeering crowds wait for king’s speech’ The Star 21 April 2015, page 3. ‘No Zulu king said kill foreign people, pleads Malema’ Sowetan 21 April 2015, page 4. ‘King is right, illegal immigrants must go’ Sowetan 13 April 2015, page 4. ‘SAHRC: attacks are xenophobic’ The Citizen 15 April 2015, page 2. ‘Rights mission reaches an end’ Daily Sun 21 May 2015, page 2. ‘Probe into Zulu king’s comments grinds on’ http://www.dailydispatch.co.za/gen/probe-into-zulu-kings-comments-... (accessed 21 May 2015). ‘Zwelithini, Zuma speak out on violence’ http://www.timesive.co.za/thetimes/2015/04/21/zwelithini-zuma-s... (accessed 11 May 2015). ‘Human Rights Commission wants Zulu king to explain himself’ http://www.sowetanlive.co.za/news/2015/04/17/human-rights-comm... (accessed 11 May 2015). ‘South African human rights body to meet Zulu king over his utterances abour foreigners’ http://africanewswire.za.com/south-african-human-rights-body-to-m... (accessed 21 May 2015). ‘Preliminary response to Zulu king’s foreigner remarks expected soon’ http://www.bdlive.co.za/national/2015/05/19/preliminary-response... (accessed 21 May 2015). 7

‘SAHRC to make ‘preliminary determination’ on Zulu king comments by mid-June’ http://www.zobo.co.za/news/sahrc-to-make-preliminary-determinati... (accessed 21 May 2015).

5.7 A number of public and private media actors reported on acts of violence against foreigners in various parts of the country and some expressly labelled the incidents of violence against foreign nationals in Isipingo in Durban as “xenophobia” or “xenophobic”’, and linked this violence to the Respondent’s utterances in Pongola.

5.8 It is important to note that the private and public media actors listed in para 5.6 above that reported on the Respondent’s speech did so in the English language.

5.9 In each case, the publication offered a translation of the words of the Respondent in isiZulu into English, and offered an interpretation of meaning of what the Respondent had meant with respect to foreigners.

6 The mandate of the Commission and its Complaints Handling Procedures

6.1 The Commission was established under Section 181 of the Constitution as one of what are commonly referred to as Chapter 9 institutions, which as stated in the Constitution is one of the “state institutions supporting constitutional democracy”.

6.1 The constitutional mandate of the Commission is to:

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6.2.1 Promote respect for human rights;

6.2.2 Promote the protection, development and attainment of human rights; and

6.2.3 Monitor and assess the observance of human rights in the Republic.

6.2 The Commission in terms of Section 184(2) of the Constitution is empowered to investigate and report on the observance of human rights in South Africa.

6.3 Besides the Constitution, the mandate of the Commission is further clarified under the South African Human Rights Commission Act 40 of 2013 (hereinafter referred to as “the Act”) and additionally in the Promotion of Equality and Prevention of Unfair Discrimination Act 1 of 2000 (hereinafter referred to as “PEPUDA”) and the Promotion of Access to Information Act 2 of 2000.3

3 See ‘Draft strategy on xenophobia for the South African Human Rights Commission’ 1 May 2015, page 4.

4 See ‘Draft strategy on xenophobia for the South African Human Rights Commission’ 1 May 2015, page 5.

6.4 The Commission has a responsibility to promote, protect and monitor human rights within South Africa regardless of who the victim of the human rights violation is.4

6.5 The Act provides an enabling framework for the powers of the Commission. The Commission’s Complaints Handling Procedures

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(hereinafter referred to as “CHP”), established in terms of Section 9(6) of the Human Rights Commission Act 54 of 1994 articulate the procedures to be followed in conducting an investigation regarding an alleged violation of/or threat to a fundamental right.

6.6 In terms of Section 14 of the Act, the Commission can resolve “a violation of or threat to any human right” through conciliation, mediation or negotiation. In addition under Section 15, the Act empowers the Commission to investigate violations or threats to violations of human rights.

6.7 The CHP sets out how complaints are to be lodged and the process that the Commission should follow when handling the complaints.

6.8 The CHP stipulates that a complaint must be lodged with the provincial office within the province where the violation occurred. However, in this particular instance because the xenophobic violence took place in more than one province the matter gained national importance, complainants from diverse provinces lodged complaints through the different provincial offices of the Commission either on their own behalf, on behalf of an individual or group of individuals, or in the public interest.

6.9 In terms of Article 6 subsections (b), (c) and (d) of the CHP, complainants can include persons acting on behalf of others who cannot act on their

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own, persons acting on behalf of a group or persons acting in the public interest.5

5 Art 6 Complaints handling procedures – determination of the procedure contemplated in Section 9(6) of the Human Rights Commission Act 54 of 1994.

7 Steps taken by the Commission in investigation ofcomplaints lodged

7.1 As a consequence of the complaints lodged with the Commission, and in furtherance of its constitutional and legislative mandate, the Commission instituted an investigation into the allegations levelled against the Respondent.

7.2 The investigative approaches employed by the Commission in investigating complaints of human rights violations involved a combination of methods. These included desk-top research, document analysis, formal interviews, semi-formal interviews, fact-finding missions and use of expert evidence.

7.3 Fact-finding mission

7.3.1 Pursuant to the complaints lodged by complainants as set out above, the first investigative method utilised by the Commission was a fact-finding mission. The Commission undertook a fact-

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finding mission in the KwaZulu Natal Province. The mission met with officials of the King’s office.6

6 Acting CEO of the Respondent’s Trust, Bonginkosi M Qunta (Rev) and Legal advisor to the Respondent (Judge Ngwenya).

7.3.2 The purpose of the mission was to obtain and record facts relating to the Respondent’s alleged utterances. A key part of this fact-finding mission was to obtain a full written speech from the Respondent. The Respondent was unable to provide the Commission with the speech stating that whilst a written speech had been prepared for the Respondent, same would be unhelpful to the Commission, as he had departed materially from the speech in order to supplement, elaborate or to emphasise content of his speech off-the-cuff at multiple junctures.

7.3.3 The Respondent claimed that it had not recorded the speech electronically.

7.4 Field research

7.4.1 The second approach undertaken by the Commission was field research. The Commission’s investigative team visited communities in KwaZulu Natal Province that had experienced violent attacks against foreign nationals.

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7.4.2 At this point, some print and electronic media actors had described and reported these attacks as xenophobic and had linked the attacks to the utterance of statements by the Respondent.

7.4.3 In this regard, the Commission undertook interviews with members of affected communities on the 18, 19, 21 and 22 September, 2015. Many of the community interviewees were willing to provide useful information and views on the nature of the violence, its triggers and causes, but were unwilling to do so in writing apparently due to fear of reprisals.

7.4.4 The Commission interviewed 25 (twenty-five) members of the community in total. The breakdown of the interview sample was as follows:

a) Locals 9

b) Foreign nationals 9

c) Formal traders 3

d) Local informal traders 1

e) Foreign informal traders 3

7.4.5 In addition, the Commission also interviewed relevant stakeholders in the community. These included the Station

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Commissioner in the South African Police Services (SAPS) in Isipingo, Officials of the Professional Transport and Allied Workers Union (PTAWU), representative of Africa Solidarity Network, representative of Democracy Development Programme.

7.5 Document analysis

7.5.1 The third method employed by the Commission was document collation and analysis. In this regard, the Commission undertook a search and collation of all relevant print and electronic media publications on the subject of violence against foreign nationals in the country, the Respondent’s utterances and private and public media commentaries on the same.

7.5.2 The Commission subjected each of these documents to review and analysis to identify reported or direct hate speech content, possible triggers of these violent attacks against foreigners, underlying and systemic causes of these attacks, and in particular an analysis of whether the utterances of the Respondent amounted to hate speech within the meaning set out in the PEPUDA or had incited the outbreak of violent attacks against foreigners that South Africa experienced subsequent to the publication of the speech.

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7.5.3 During the process of undertaking a search for an electronic recording of a verbatim record of the Respondent’s speech, the Commission approached various media actors to provide this evidence. Neither the national broadcaster (South African Broadcasting Corporation), nor any of the independent broadcaster admitted to be in possession of the recordings.

7.5.4 A local radio station Gagasi FM was able to provide a short electronic clip, which appeared to be only an extract of the Respondent’s speech. This extract contained only the part in which the Respondent appears to be calling upon foreigners to leave South Africa.

7.5.5 During the Commission’s investigative efforts to find a full recording of the Respondent’s speech, a non-governmental organisation (NGO) whose identity is known to the Commission made an unsolicited contact with the Commission and provided what it asserted to be:

a) A full audio-recording of the full speech of the Respondent;

b) A transcribed version of the same speech in isiZulu; and,

c) A sworn translated version into English of the same speech.

7.5.6 According to the NGO, this recording had been made by an informant physically present during the moral regeneration

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meeting hosted by the Respondent in Pongola. The informant deposed to an affidavit confirming this to be the case.

7.5.7 A copy of the sworn deposition of the informant is in the possession of the Commission, but withheld to safeguard the informant’s identity.

7.5.8 In order to verify the contents of the recording, the Commission furnished the Respondent with both the audio-recording and the transcribed and translated versions and invited the Respondent to confirm or deny whether these were a true version of his utterances on the day in question.

7.5.9 The Respondent furnished the Commission with a response and defence to the contents of these documents. The defence of the Respondent is set out more fully in paragraph 9 below.

7.6 Desk-top research

The fifth investigation method employed by the Commission was extensive desk-top research. In this regard, the Commission undertook review of available literature relating to the role of traditional leadership in a democratic dispensation, culture and traditions of the Zulu people in order to enrich the contextual analysis of this investigation. 16

7.7 Expert evidence

7.7.1 The sixth and final method employed by the Commission in carrying out this investigation was the use of expert evidence. In this regard, the witness assisted the Commission to decipher the meaning of the words uttered by the Respondent in isiZulu and to assist in providing an opinion on whether the same words, when translated into English, carry the same meaning.

8 Evidence collected

The outcome of the various research efforts of the Commission as set out in paragraph 7 above, revealed the following facts:

8.1 Utterances of the Respondent

8.1.1 The Respondent delivered his speech on the 15 March 2015 in Pongola in the KwaZulu Natal Province;

8.1.2 The social challenges that faced the area of Pongola around the time of the Respondent’s speech include a series of rapes against young girls and pensioners, most of whom were killed after the sexual violations.

8.1.3 Prior to the Respondent’s speech, there had been a much-publicised report of a 4-year-old boy of Ncotshane village who was

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gruesomely killed and his mutilated body parts were found in a house belonging to the local St Jones Church.

8.1.4 The Respondent was accompanied by government officials that included Police Minister Nathi Nhleko and provincial MEC for Community Safety Mr Willies Mchunu.

8.1.5 The Respondent used this visit to launch what he termed a “Back-to-Basics” campaign in the community.

8.1.6 The full speech of the Respondent in isiZulu (as set out in the transcription of the audio-recording of the Respondent’s speech) is as follows:

(00:00) ngi-ndlulisa ukubonga Mageba ukuba ungethule Kanye nomphathi wohlelo ohleli naye kulom’cimbikazi omkhulu kangaka ngapha kulomasipala wase Phongolo. Ngithokoza kakhulu ukuthi umhlonishwa uNtleko esikhathini sokusebenza kwabo, engukwaziyo ukuthi bamatasa kakhulu kepha bazinikezile isikhthi sokuba bazoba Kanye nathi lapha kusifundazwe sethu sakwa Zulu Natal. Siyathokoza Mkhilitshi.

Ngibonge kakhulu mhlonishwa futhi, angizanga ngedwa lapha ngihamba nabantwana benkosi Kanye nondlunkulu ukuzosikela lomcimbi engicabanga ukuthi ubalulekile kakhulu esintwini sethu njengama Zulu, masikhuluma ngokufundisa ngezimilo zabantu 18

bakithi. Ngithokoze kakhulu Macingwane njengo ngqongqoshe ophethe kulesifundazwe ukuthi nawe ezintlelweni onazo njengokuba umnyango wezamaphoyisa lapha kusifundazwe uncike laphayana emnyangeni kwezamaphoyisa kuzwe lonke, ngithi mangendlulise futhi ukubonga kwami. Ngiyafisa ukuthi namakhosi akhona phakathi kwalomcimbi nalawo kakhulukazi ayigxenye ekuxhumaniseni isifundazwe ngezinto ezilapha emphakathini,Nomyanngo wamaphoyisa ubukhona bawo buyangithokozisa. Ngiyafisa ukuba ngibonge kakhulu imikhakha yamaphoyisa lapha kusifundazwe kakhulukazi Unkosikazi uNgubeni Kanye nabo bonke ababambisene nabo kusifundazwe ekubekeni izimo zentlalakahle Kanye nezokuphepha kuthina sonke. Ngibonge kakhulu nasembuthweni ubukhona bawo, nakulabo ekungabaphathi be-Station abakhona lapha kwi-zulu land district.

(02:54) Ngithokoza kakhulu ngokuba kukhona nabe zintlanga ezithize,angeke ngizibale zonke ukuthi zenzani kepha ubukhona bazo buyangithokozisa kakhulu. Ngibonge kakhulu nasemibuthweni Kanye nasezinduneni ezikhona.Ngibonge kakhulu nakulezo zinduna ezihola omama ibutho lami lesiphithiphithi oNomathemba bami engaziyo kahle ukuthi yibona abayizinzala bantu ikakhulukazi nazo lezi esizokhuluma ngazo, ngoba nabo baya thinteka ekuhlukunyezweni nasekuhlukumezekeni engicabanga ukuthi inkosi yethu 19

elandelayo izohamba kahle umangabe kubakhona izintlelo zokwakha ubuhlobo. uMacingwane nguye ke kulesifundazwe obekene nomnyango wezamaphoyisa kusifundazwe wezwelonke.

04:21 Ngibonga lezi zingane zami ezingamantombazane ubukhona bazo buyangithokozisa, ngibonge nabafana bami laba abakhona.Ngiyafisa nje ngingakaqali ukukhuluma kwami, ngiqale ngokuxolisa kuhulumeni wami ngokulahlekelwa ngomunye kwi-cabinet yakhe engozini yemoto eyenzeke ngesonto eledlule. Ngiyafisa futhi ukulilela amaphoyisa onke ngalengozi eyenzeke e-Polokwane.

(05:16) Xxx amaphoyisa aqaphe abahlonishwa abangaphansi kophiko lokuphathwa komnyango wakho. Ngiyazi ukuthi lokhu kuhlalakushiwo kepha egameni lesizwe sakwazulu Kanye nase ndlini yakwazulu sithi lala ngenxeba akwehli lungehlanga. Nakulabo abayilunga lomndeni womhlonishwa lo ohambile sicela umusa kankulunkulu unembathise ingubo efudumele.

(06:06) Ngiselapho ke ngiyafisa ukubabaza ngento eshaqisayo futhi, lapha esifundazweni sangakithi lapho kutholakele amathuna abantu ababalelwa ekhulwini. Nanoma singakezwa yonke iminingwane njengobukhosi, siyafisa ukulula isandla senduduzo kuleyomndeni. Okungenzeka ukuthi kulawo mathuna yizihlobo 20

ababengazazi ukuthi zaphelelaphi, lezi ezinye izinto ezishaqisayo ezishayisa uvalo.

(06:44) Ngiyanxusa futhi ukuthi amaphoyisa ethu ahlale enza njengansuku zonke. Kwamele athole imbangela Kanye nabenzi balokhu ukuze izihlobo Kanye nemindeni zithole ukuphumula nokucaciseleka ukuthi ngempela ngempela lesi sihlungu esingaka kwakonakeleni ukuze kwenzeke into enjena. Ngiyafisa ukubonga abahleli abalomcimbi esikuwo mhlonishwa.Ngiyakholwa ukuthi yonke into inesiqalo futhi ngiyakholwa ukuthi lona akuwona umcimbi nje, kepha yimvuselelo yokwenza lokho okulungileyo thina esikholelwa kukho.

(07:28) Izwe lakithi mhlonishwa liyadinga ukuvuselelwa ekwenzeni okuhle. Sihlanganiswe yizinto ezintle esikhuluma ngazo la kepha kube kune zinto ezimbi ezenzeka emphakathini. Iqiniso lithi siphila ezinkathini sezinselelo emindenini, emiphakathini Kanye nasesizweni jikelele. Akusiyona lenkinga ebhekene nesizwe sakwa zulu natal kuphela, lenkinga ibhekene nezindawo zasemakhaya Kanye nasemadolobeni. Bakwethu niyazi ukuthi kuningi esingakhuluma ngakho njengoba sihlangene? Inhlonipho iphelile nkosi yami macala onke. Sonke sikhala ngesimo sokulahlekelwa yinhlonipho, lenhlonipho ekuthiwa wubuntu. Ukusizana obebukhona ngezinkathi zokhokho 21

akusekho. Abantu sekungathi abazi ukuthi bahamba kweliphi izwe baphila kweliphi izwe. Khona lapha ezweni lakithi lapho khona abantu Kanye nabaholi badela izimpilo zabo ukuze libukeke izwe. Sekukhona abantu abathi kulungile ukucekela phansi impahla abathi ngekahulumeni. Uhulumeni akanampahla impahla ngeyabantu, ngabantu abangabakhokhi bentela, uhulumeni ebese esebenzisa imali ukwenzela abantu izinto. Bese bahambe abantu benentukuthelo engenabuhlakani bayocekela izinto aboyothi umasebezicekele phansi ngelinye ilanga zingeke zisafana nalokho ebekade ziyikho ngaphambilini. Umlambo wabo bawufise njengotiki lika metshisi.

(10:05) Ngithi mazulu isikhathi sokudlala siphelile. Angiphikisani nokuthi abantu benze lokho ababona ukuthi kungcono okungenza isimo siguquke. Kepha mayingamoshwa impahla, ngicela ukuthi kulesifundazwe amathaya (tire) angashiswa emigaqweni. Ngicela ukuthi abantu bakwazulu ekungamazulu abasahloniphayo ngicela ukuthi baqonde kahle ukuthi igama lamazulu laphuma ezulwini, naphuma esigodlweni nina. Abantu abahlala esigodlweni bayahlonipha, nabizwa ngesigodlo kwathiwa ninguzulu, lobuzulu eniyibo eniziphethe kona akubona obasesigodlweni sasezulwini. Mayiphele lento yokumosha impahla besenithi yizinto zakahulumeni, uhulumeni yini. Intukuthelo yakho ngicela ungayisi kwi-property yesizwe. Ngoba ngelinye ilanga unembeza uyokulahla sewusenzile isenzo. Njengenkosi yenu mina lezinto 22

ngizebuka ngokunelwa engicabanga ukuthi nobuholi bomdabo kulesifundazwe izinto ezenzekayo kulesifundazwe zibukwa ngobunelwa. Nalopho khona abantu abadala nabancane behlangana besekelana ekwenzeni okubi.

(12:07) unkulunkulu akezi ezweni elinokubi uyabaleka adede kulo, usathane athathe indawo yakhe. Sibabonile abantu befuna izidingo kuhulumeni ekuyilungelo labo, bephenduka imidlwembe nabenzi bobugebengu. Nezigebengu sezicasha ngabantu abafuna benzelwe izinto ngoba kuyilugelo labo,bese izigebengu zingenelele. Sibonile lolu hlobo labantu lushisa amahovisi, izincwadi nezikole. Umasibeka lamalungelo ekukhulunywa ngawo ekuwukubhubhisa impahla ngisho neyababokufika kulele.

(13:16) Bagcwele kuleli lizwe nje emakubo niyazi ukuthi ayikho imali, Bagcwele kuleli lizwe nje niyazi ukuthi bazothatha imali yenu.

(13:35) Umbuzo ke kini, nithi akunalutho enikufundile kulo 20 (years)? Niyothini ke ngelinye ilanga mhlawumbe sesihleli ngaphakathi komlilo omangalisayo ekuyothi ngelinye ilanga iqhula labo lihlule ngisho abezokuphepha.

(14:02) Sizwile nangezingane ezincane, nezalukazi ezidlwengulwa amalunga emindeni. Ishonephi indoda endodeni? Ushonephi umfana emfaneni ayeke ugogo, hayi naba 23

bayambanga, ngempelangempela sebayambanga babanga ugogo wakho. Ezinye izinto izingenza ngimangale ukuthi indoda ishonephi endodeni, umfana ushonephi kumfana. Ukuba ahalele usana ahalele ingane.

(15:06) ngicabanga ukuthi ezinye zezinto mhlonishwa siyafa lapha siyafa lapha kulezinto ezibizwa ngokuthi ama liquor board, kulapho siphela khona isizwe…. liquor board. Liquor board yama (tavern) lapho kugxunywa gxunywa ubusuku nemini singalali sibadala kangaka izingane ziyabiyoza kuzekuse. Kuvunyelwa abantu isimo sempilo siguqulwe. Ngempela ngempela silishonisaphi leli lizwe? Likhona yini izwe eliphila ngotshwala, niyazi ukuthi e-South Afrika ingu-namba 3 emazweni onke ngezidakwa. Kuchaza ukuthini lokho kithi ? what is the meaning of that to you as a South African a zulu living in kwa-zulu natal, under which king representing you every day?

(16:38) Nanoma isimo sinjani kumele ngininike inhlonipho nginimele njengabantu bakwa-zulu, kodwa manje izwe elinezidakwa ligcina likwazi na ukwenza izinto? Unkulunkulu uyazi phika ke ngalesosizwe.Nonkulunkulu akaziwa ngoba yizidakwa kuphela la uma sekudakiwe kuyalalwana nje, awazi noma ulele nobani umithiswe ngubani udla ama-drugs, udla newonga udlayonke into le. 24

(17:16) umbuzo wami umile ngokuthi ngilisaphi lelizwe? Ngilisaphi lelizwe, uyabona ezinye izinto njengoba zenzeka la, ekugcineni zonke uma zenzeka kuthiwa ngamaphoyisa. Amaphoyisa aweze azobula umlilo. Ngesikhathisokubula umlilo eze ezosebenza awatholi e xxxx (17:50).

(17:58) konke lokhu okwenzekayo siyazibuza ukuthi ingabe yiyo le inkululeko eyayilwelwa. Niyazi ukuthini mina ngishaywa wuvalo. Ngoba lenkululeko isiyenze abantu baphenduka izilwane ezingalawuleki.

(18:20) likhona yini izwe elingakwazi ukulawuleka? Izingane zifuna ukulawula abantu abadala, ngelinye ilanga siyohamba ngoba nathi sasiyizingane kobaba. Sasiyizingane kobaba sahlonipha salalela. Wena ongafuni ukulalela ngelinye ilanga sesihambile uyolawula kanjane ngoba awuvumi ukulawulwa. Niyawubona yini umonakalo engiwushoyo? Ingane engundlebe azizwa ayilungelwa lutho.

(19:08) Bakwethu, me xxx (19:10) lomcimbi bekufanele ube kwenye indawo kepha ngathi mawubuye uze la ngokwazi izinto ezenzakala la. Bengilibuka uphongolo ngiwumfana ngimcane, izimoto ebezingama ambulensi zisuka la, lezi moto bezinyukuza zedlula njalo uma kuyi-(weekend) beze dlula mhlawumbe (5 times) zilibekise kwanongoma. 25

(20:04) lapho ngendlela ababedlabana ngayo abantu kulendawo. Akusiyona into entsha lena yenzeka lana ophongolo. Abantu ababeginqa abantu kudala bayidla imbunga, kudala baqedwa yisiqatha. Bekunezi poki la ikakhulukazi emapulazini, lapho abantu bakithi babehlala ezimeni izinzima. Babehlala ezimeni ezinzima, amaphoyisa asahamba ngama-bicycle ephucwa izagila kuthiwa ahambe alande iziboshwa. Babesahlonipha ke abantu, baziqoqe zonke iziboshwa baziqubule ngesagila.

(21:21) Babesahlonipha abantu bebona amaphutha. Namhlanje yisizukulwane esinjani lesi? esisenza sithi sekungathi unkulunkulu usiphe isizukulwane esilahliweyo, Kungoba silahlekelwe yinhlonipho. Mina ubaba uze wahamba ngiguqa ngamadolo, imina ubaba uzewahamba ngingangeni e-khishini lakhe. Mina ubaba bengingakwazi ukuphambana naye kanje….umuntu othi mina angeke ngimuhloniphe ngoba akangizali, lowomuntu akanaso isibusiso ngifuna ukunitshela. Unesibusiso umuntu okwazi ukuhlonipha umuntu osezingeni likanina, nosezingeni lika yise aze ahloniphe ngisho nesizukulwane lesi esikhuluma ngaso.

(22:31) kubuhlungu ke kimi uma ngibuka izwe elalwelwa ngokhokhobami Kanye nezinkulungwane zabantu liphenduka xxxx (22:38) ayikho into ebuhlungu njengaleyonto kimi. Angibulali 26

ubuthongo ngicabanga ngale zinto, ukuthi nhloboni yabantu unkulunkulu angibeke phakathi kwayo. Ngiyazibuza ukuthi eyiphi lenkululeko iNkosi uCentshwayo nendodana yakhe UMamonga owahlonishwa ngesikhathi iqembu ngo 1912 likakhongolose lakhiwa lahlonishwa ngokuba no-President.

(23:29) Ngabe eyiphi leyo nkululeko? noma kukhulunywa ngento ebhalwe phansi. I am not talking Politics, ngikhuluma ngomlando, angiyi-politisizi lendaba. Kepha inkosi uZulu bobabili nenkosi uCetshwayo baboshelwa yona lento yokulwela izwe. Babelilizela abantu ngo 1994 ngokuthola inkululeko, bese ke ngo 2015 kuthiwe abantu base South Africa ngabantu abangafuni ukulalela, ngabantu abangafuni ukusebenza, abantu abangamasela, abantu abadlwengula izingane, abantu abagqekeza imizi, abantu abangamavila abangafuni ukulima, abantu uma bebukwa ezinye izizwe zithi masambeni siyodla ifa leziphukuphuku.

(24:33) Ngikhuluma nje phambi kwezitolo kulenga yonke into, amanikiniki ongawazi ancolisa imigwaqo yethu, awukwazi nokubona ukuthi lesisitolo singusitolo bani, sasingusitolo bani,kuvimbe nje abantu bokufika.

(24:54) Ngiyazi ukuthi kwenye inkathi kulukhuni kwabanye osopolitiki ukukhuza imihlolo, ngoba phela labenzi bokubi babuye babe ngaba voti eminyakeni eluhlanu. Mhlonishwa,bahlonishwa 27

bami nizongixolela ezimeni ezinjalo kungumsebenzi wami kufanele ngikhulume.

(25:22) Ngibe ngingalinde minyaka emihlanu ukuze ngikhuze uma konakala. Njengenkosi yakwa zulu, njengenkosi yesizwe sakwa zulu, isizwe esihlonishwa umhlaba wonke ngeqhaza laso emzabalazweni ukukhululeka kwe-afrika, angeke ngithule uma izwe lethu lidlala abantu abangena mbono. Kufike isikhathi sokuba kube nombono. Ngiyacela mina ukuthi uhulumeni wethu e-South Africa asilekelele. Asicube ezethu izintwala.

(26:21) Ezibukwini zethu amazeze masikhiphe sibeke laphaya elangeni ekushiseni kwe langa.

(26:32) Siyacela abantu bokuhamba bathathe umthwalo wabo babuyiselwe emuva.Masilalelane, masilalelane, masilalelane. Nani ngenkathi nisemazweni abo nanisempini, nabalekelela ukaba bakhululeke emazweni abo niyakwazi lokho. Yingakho amanye amazwe akhululeka ngoba elekelelwa yilabo ababekade bephumile amasoja omzabalazo ase-Ningizimu Afrika. Anikaze nilingise nithengise lutho.

(27:46) Bahlonishwa bami nathi masiye nje ngokuvakasha masingafiki ngokuzohlala. Kepha masibonelelwe bakithi. Vukani kenina niye emasimini niyosebenza maningahlali 28

phansi.Kubaphathi bezwe nani ngithi phumani obala manje, ngoba nani nifihle ezinkulu izigebengu endlini ka jehova kunina eningabefundisi. Kanti nakuwo amaphoyisa ngithi sebenzani ngamandla khona kuzo qhasha xxx(28:40) nezeze elicashe ngezembatho zemvu.

(28:53) ngiselapho edabeni lamaphoyisa ngiyafisa ukuthi nina niyibutho elisondele kakhulu emphefumulweni wami, ngeke ngize nginilahle. Kepha kulesisimo angeke nisebenze kahle uma kukhona abantu abangene e-South Africa sengathi bazo trader bezothatha umnotho wethu bawubuyisele emakubo. Kodwa akwaziwa ukuthi lababantu abagcwele lapha yini ebaxoshe emakubo, mhlawumbe bayizigebengu.

(29:36) Ubudlelwane namazwe ase-Africa sinabo futhi buhle kakhulu, buhle impela ubudlelwane esinabo kodwa masingabinabo ubudlelwano bokubasithambe sithi singcwele kakhulu ukudlula e-Afrika. Asingabi ngcwele nabo banemithetho yabo, nathi akube nemithetho yethu. Amaphoyisa angum’gogodlo wokuphepha kweze ayimpendulo kubantu nakumphakathi ohleli ngaphansi kokwesaba nobugebengu.Yiwo amaphoyisa ezwakuqala ngezinkinga, ngani ngoba ukusebenza kwawo kuphakathi kwabantu. Yingakho nje ngithi masibuke izintwala zethu, njengamanje ngisho no thisha bahlala ovalweni lapho izingane zethu zivuka njalo ziye ezikolweni khona. Bahlala 29

ovalweni ngoba uphethe (i-okap), i-okap idla izingane zethu ezikolweni, zinesibindi esingakaze sabonwa. Kukhona lomthetho ekuthiwa kuhlukunyezwa amalungelo ezingane, lama lungelo ezingane ahlukunyezwayo yimaphi? Lamalungelo yimaphi lapho khona enye ingane imane ithathe umese ihlabe enye ingane. Ziphethe izibamu lezizingane Kanye nezinto ezibuhlungu, othisha bona abaphephile kulezi ngane ngenxa yamalungelo.

(31:36) yingani thina singafanga kepha sikhule ngesibaxu sijeziswa. Namhlanje angisakwazi ukuyi jezisa ingane yami uma ngibona ukuthi inephutha. Sekufanele ukuthi ibe nenombolo yamaphoyisa, ithi kukhona ubaba osihlukumezayo lapha ekahya isho uyise.

(32:00) Ngiyazi bakhithi ukuthi yiwo amphoyisa ezwakuqalo, kepha ngiyafisa ukuwacwayisa amaphoyisa ngengozi akuyo kwawona. Iqiniso lithi baningi lapha ngaphandle abafuna ukungcolisa igama lenu nina maphoyisa ngentloso yokwenza umbuso waseNingizimu Afrika ubentekenteke. Bafuna ukuwenza ubentekenteke ngokugxeka umsebenzi wenu. Ukuvika iphoyisa emsebenzini kuwukwenza umbuso wezwe ubentekenteke.Akekho ongazi ukuthi amaphoyisa ngabavikeli bokugcina bentando yeningi lena esithi siphila ngaphansi kwayo engenisa abantu nanoma yibaphi, kuthiwa e-South Africa igwinya konke awazi nokuthi lababantu baxoshwe yini emakubo. 30

(33:13) Ngaphandle kwawo umbutho wamaphoyisa nokusebenza ngesibindi sawo lelilizwe angeke likwazi ukuphepha nokuqhubekela phambili. Manje ke umuntu ongafisi lutho ngezwe lethu nobukela phansi inqubo yezwe lethu, uyoqinisekisa ukuthi umuntu wokuqala osukayo yiphoyisa ngoba efuna ukwenza imigilingwane yakhe. Ukusuka kwe-phoyisa lapho libekwe khona kukhomba inhlekelelo. Yingakho nginincenga ekutheni ningasuki ekubeni ngabavikeli bomphakathi Kanye nabadali bokuthula nokuphepha emiphakathini yethu. Mphathi wohlelo ngiyafisa ukuthi umphakathi kumele ubone imicabango kanjalo nezinhlelo zokulungisa lokho okonakeleyo ezweni lethu. Angikusho lokhu ngoba kulula ukukusho, kungoba ngiyazi ukuthi kuyasebenza umasizobambisana nje. Kodwa masishintshe indlela esiphila ngayo, indlela ekuphilwa ngayo ezweni kufanele uyiguqule uma isimo sonakele sinzima,njengamanje.

(34:46) izwe lethu lihlaselwe wukusweleka kwa manzi, isimo senguquko yezulu. Kukhona okukhombayo ngoba phela izimo ziphoqwa yizimo zama-pollution aphuma ema-femini izwe lonke libe ne-pollution nasemhlabeni wonke kodwa izigulo abanye abantu bayazethola. Ake nizinuke amakhwapha bantu bakwa zulu. Njengoba lelilizwe kade linezimvula ezingaka ingabe zishonephi? Zishonephi lezi mvula? Lungani unkulunkulu ufuna nina, akekho omunye umuntu unkulunkulu amfunayo, ufuna 31

amazulu ukuthi amazulu asekuphi manje. Yikhoke manje nobuvila bubokile, uma’mhlonishwa singandiza le Natal yonke ngendizamshini angeke ubone ngisho noyedwa. Amadoda angenelwe yinkinga ngisho engingayazi futhi angikaze ngiphile namadoda anje. Yizinkinga zamadoda, angamavila, ayizidakwa bayimigulukudu yamasela.

(36:35) Ngithi ke mina mhlonishwa, eminyakeni engamashumi amathathu emhlabeni wakwa Nongoma. Ngaqala into eyincazululo emhlabeni jikelele, kakuwunyaka ka 1984 xxx( 36:55) womhlanga owawudume umhlaba wonke, uphikisa abaningi lomhlaba lomkhosi. Kepha nina ngithi ezokuvakasha ezweni lakithi mazizuzise abampofu bakithi, makubekhona abakuthola ukuze izwe lithuthuke kuyo yonke imikhakha, ukuze nabavakashi mabeqamba kungafani nalezi zinto esizizwa ko-thwishe lapho kunama-attacks amangalisayo. Abantu basezindaweni ezithize zokuvakasha, ngoba uma bevakasha noma bedlula bashiya imali. Lokhu ke ngangikwenza ngisebenzisa ulwazi lwamasiko lolu ebekade ngikhuluma ngalo mhlonishwa.Ngangikhuluma ngama siko abantu bendawo yakithi kwa-zulu ngoba thina sihlezi phakathi komnotho, intlabathi esihlezi kuyo wubumba. Yintlabathi ekhiqiza ukudla, ikhiqiza izitshalo ezenza utshwala bethu besizulu, ikhiqiza namakhambi wokwenza izimbiza, sihlezi phezulu kwa-matshe, sihlezi phezulu 32

kotshani sihlala phansi kwezihlahla ezithela izithelo. Konke lokho kuyi mpilo kithi kodwa abantu bakithi badede kukho konke.

(38:43) Niyabona nina ukuthi unkulunkulu uyanishaya? Kusicelo sami ke ngangithi, njengoba ngakwenza lokhu ngangikwenzela isifundo. kukhona ubuhlakani ekutholeni ulwazi Kanye nase kusebenzisaneni nabantu bendawo. Ngicela sisebenzisane, njengoba sonke siqhamuka kuzo zonke lezindawo ezakhele izulu land sizokwazi ukuthola isicazululo esiwukunaphakade uma sisebenza nabanikazi bodaba.Akufanele kubekhona umuntu othi yena angeke angene esigabeni sokuthi atshelwe, amasiko adlala indima emqoka ekwakheni umuntu. Ekwakheni umuntu amasiko adlala enkulu indima, yifa isiko lethu, imikhosi esinayo njengoba kade ebeka umacingwano ethi siyathinteka ngendaba ekuhlaselwa ngayo imikhosi yethu. Uhulumeni uyayisekela ke lendaba yamakhosi ngoba ayifikanga la ezweni ukuzobulala abantu.

(40:01) Ngafundisa izingane ke mina (from) 1984 sengim’dala ke manje. Mina ngazalwa ngenkathi kuzalwa e-National Party, ngabona umbuso wenu la e-South Africa kusasetshenziswa I-Pound, amashelenes nama penny’s, ngazibona zonke lezi zinto zenzeka. Ngabona ngo-1961 iguquka i-South Afrika uma e-National Party ithatha umbuso, ngayibona i-currency yethu iguquka. Amabunu abona ukuthi ukuze i-currency yabo ilunge 33

kungcone bakhe i-kruger rand ngenxa yegolide ababelithola. I-kruger rand yaphakamisa i-currency yase South Africa, kukhona i-currency eyirandi eyashaya ama-currency umhlaba wonke jikelele.

(41:08) Ngikhuluma ngento engiyaziyo, kwangena uhulumende we xxxx

(41:10) ngiyazazi zonke lezo zinto. Ukufika kuka hulumeni ngiyazazi zonke lezo zinto. Kukhona izingane ezizokutshela nge nkululeko, zazini ngenkululeko. Kungani zingabuzi kuthina bantu abadala, siyabuka nje yonke indawo akuhlonishwa. Nasendawo lapho khona kumele kuhlonishwe abantu ekungabaholi, njengoba sibona nase Phalamende, yimihlola yonke lento eyenzeka laphaya.

(41:49) Manje ke njengoba ngishilo ukuthi amasiko adlala indima kumuntu. Kusesikweni lapho umuntu wesilisa Kanye nowesifazane abunjwa khona ukuze abe yisakhamuzi esihloniphayo. Uma uhluleka ukuzihlonipha vele ukhohlwe ngento ozoyiyenza la. Kuthiwa umhlonishwa umosha imali ye-department ngokuzokhuluma la, uzokhuluma neziphukuphuku zabantu abavele badakwe yi-wunga ngoba vele baze bebemile vele. Kungangakho ngingangabazi ekutheni uma singabambisana ekwenzeni amasiko athile kukhulu izwe 34

elingakuzuza. Isibonelo nje,ukubutha kwabafana nama ntombazane uma kungaba yinto ekubanjiswana ngayo ingaba nomthelelo omuhle ekwakheni isizwe sakusasa. Yingakho nje ngiyinkosi yenu Kanye namakhosi ngininxusa ukuba sisondelane ekulungiseni isimo kodwa sisondele kunkulunkulu kuqala.

(43:09) mina ngiseduze kuka nkulunkulu,ngihlezi naye. Angazi ke wena uma ungahlezi nonkulunkulu, yingakho ngithi kusosonke isizwe sakwazulu masisondele kunkulunkulu. Izolo bekunesifundo encwadini ka-John yokuqala lapho kukhulunywa khona ngolizwi, nokuza kwakhe ezweni nokuthi wayezelani. Abakholwayo bazo khumbula ukuthini inkonzo yayizolo xx xx(43:51) lokho kubalulekile ngoba isizwe esingenaye unkulunkulu vele, unkulunkulu uyasishaya.Yizindaba zama shibini izingane zethu zitholakala lapho, yingakho ngithi sithusa ubaba. Amaphoyisa, abezenkolo, abezemidlalo Kanye nabamabhizinisi abahlanganyele nami lapho sisebenzisa isiko nolwazi lwabantu ekugqamuleni nezisombululo ezinkingeni ezifungethe leli kakhulukazi ukuziphatheni kawbantu. Ngoba uma singakwenzi lokho ngempela sisazo baxabulwa ukuya phambili. Yize ngingeke ngenabe kakhulu kodwa ngiyazi ukuthi umsebenzi wesiko engiwenzayo njalo nge Pasika nona ngenyanga ka-Zibandlela lapho ngihlanganisa abafana abancane sibanika imilayezo, kanjalo nasekwakhe izintlanga zokulwa nobugebengu,kanjalo nagom’khosi womhlaba. Kuningi 35

esingakwenza ekulolongeni nasekwakheni abancane bethu. Ngoba ukufanelanga sibalahle, sezifuna ukuncengwa izingane, kodwa kufanele kulunge thina sibadala kuqala.

(45:36) Ngakho ke kubaholi kwelakamthamiya abangamazulu, ngifisa nihlale nekulugele ukusebenzisana namaphoyisa ngazo zonke izintlaka ezikhona, kubanjiswane ukuze kubekhona isimo sokuphepha sabantu bethu. Lapho kukhona izinkinga njengobukhosi sizimisele ukulekelela, ngeke size simulahle ngoba njengoba nikhona siyazi ukuthi akukho esingaku gwema. Kwamele kube khona ukubambisana ukuze kubekhona ukuthula ezweni lakithi. Njengobukhosi siyakwamukela ukuthi ngokubambisana singa gwema okuningi ebugebengwini nasedlameni emaplazini nasemphakathini.

(46:35) Mhlonishwa, amaplazi lawa uhulumeni awadedelayo kuthiwa anikezwa abantu abathize bagcine abantu bangawatholanga (46:52) xx xx zami sezibiwe, ziqoqwa nje abantu abesibongo esithile sakwa nzunza, bayaziqhwaga nje izibongo zami. Ngathi wemaphoyisa lezi izinkomo zengwenyama. Manje ke ngisho ukuthi lamaplazi uhulumeni awadedelayo kuningi ukuncola ukungaphakathi kwawo, ikakhulukazi lawa angamahlathi ngoba amafa omkhulu bethu kulapho ekhona. Singagwema ngisho izifo umasingakwazi ukusebenza ngendlela yokubambisana. Akekho umuntu ongalala elambile uma thina 36

sonke singa phuma siyo sebenza sibambisene nasezintlelweni zokulwa nokufa. IsiZulu sithi indlala ibanga ulaka ngoba isisu esilambile asiwazi umtheth, manje ke zonke lezi zinto kufanele sizinake sibone ukuthi senzanjani, sense izwe lethu libe sesigabeni lapho khona singakwazi ukuthi sivikele ukuphila kwethu. Ngalamzwi amafishane ngithi ngiyafisa ukutshala imbewu yokusebenzisana siye phambili. Ngiyabonga mhlonishwa.

8.1.7 The full speech of the Respondent in English, as set out in the sworn translation that is in the Commission’s possession, reads as follows:

(00:00) I would like to extend a word of appreciation, Mageba, for your introduction together with the Programme Director seated with you at this august event within the Pongola municipality. I am highly pleased that Minister Nhleko, within his busy schedule as I know that they are highly engaged, has made the time to be with us in KwaZulu-Natal. Thank you, Mkhilitshi.

I am highly grateful, Honourable, as I did not come alone but together with some princes and a queen to grace this occasion which I believe is very important in our tradition as the Zulus, when talking about teaching about the morals of our people. I am highly appreciative Macingwane as the responsible Minister in the 37

Province that you also, within your programmes as the provincial Department of Safety and Community Liaison, are dependent on the national Department of Police, I would like to extend my gratitude. I wish to thank the chiefs that are present in this event and those that are involved in linking the province about community events, together with the Department of Police, their presence here is pleasing. I also wish to thank the various sectors within the Police Force in the province, especially Commissioner Ngobeni and all those that she works with within the province in ensuring the wellbeing and safety of all of us. I also appreciate the presence of the force, and those who are in charge of the Police Station Clusters within the Zululand District.

(02:54) I also appreciate the presence of other various functionaries, I will not mention all of them and their responsibilities but their presence is also highly pleasing. I am also grateful to the regiments and the indunas that are present. I am equally grateful to the indunas that are in charge of the women, my rapid response regiment that has given birth to people, more especially those that we are gathered here about, because they are also affected in the abuse that I believe our king that will follow will travel safely if there are programmes to foster relationships. Macingwane is the one responsible for the Department of Police within the province. 38

(04:21) I thank my daughters whose presence is pleasing. I also thank my sons who are present here. Before I can proceed with my speech, I wish to extend my condolences to my government about the loss of one of the members of the cabinet through a car accident last week. I also wish to extend condolences to the entire police force about the accident that took place in Polokwane.

(05:16) Xxx the police are protecting the ministers are under your cluster. I know that this is often mentioned but on behalf of the Zulu nation and the Zulu kingdom we say may their souls rest in peace. Even to the family members of the minister that has passed away we say may God’s grace and warmth engulf them.

(06:06) While still on that, I wish to express my shock at the disgusting thing that has taken place in our province, whereby graves of about one hundred people were discovered. Although as the kingdom we do not have full details, we wish to express our condolences to the affected families. It is possible that amongst those graves are their relatives that they had no idea where they vanished to, these are shocking things that really raise our fears.

(06:44) I request our police to continue to do as they do every day. They must do everything to get to the bottom of the cause of all this and the people behind this so that the relatives of the deceased may find closure and full explanation about this heinous 39

deed. I wish to thank the organisers of this event, Minister. I believe that there is a beginning for everything and that this is not just an event but it is a revival for us to do the right things that we all believe in.

(07:28) Honourable Minister, our country needs a revival in doing good. We are gathered here for something good that we want to talk about whilst at the same time there are other bad things that are happening in our communities. The truth is that we live in times of serious challenges for many families, communities and the nation as a whole. This is not a problem that is confronting KwaZulu-Natal only, this problem confronts both rural and urban areas. My fellows, do you know that there are so many things that we can talk about as we are gathered here? Respect has been lost from all angles. Everyone is complaining about the loss of respect, which respect is supposed to be ubuntu. Helping each other just like during the times of our ancestors is no longer there. It’s like people do not know where they live and walk. In this very land where some people and leaders sacrificed their lives so that we could have this beautiful country. There are people who believe that it is good to destroy and damage any property said to belong to government. The government does not have any property, the property belongs to the people. People are the taxpayers and the government uses that money to deliver services to the people. Out of misguided anger people would then 40

go and destroy things which they would later realise were meant to help them. They destroy their history by setting everything on fire.

(10:05) I am saying time for playing as the Zulu nation is over. I am not against people doing what they believe is better and would change their circumstances. But properties must not be damaged. I request that tyres should not be burnt in the streets in this province. I request Zulus from KwaZulu who still have respect to understand very well that the name of the Zulus comes from heaven, you are from the kingdom. People from the kingdom are respectful. You are named after the kingdom, that you are Zulus. The Zuluness that you have so far displayed is not that of the kingdom of heaven. You must stop damaging property and then say that is government property. You are the government. Please do not direct your anger to the property of the nation. One day your conscience will let you out after your action. As your king I do not take kind to all these things, and I believe that even the traditional leadership in this province does not approve of these things, including instances where the elderly and young join forces in doing something despicable.

(12:07) God hates a country that is full of evil, He despises it and the devil takes over. We have seen people demanding services from government, which is their right, and thereafter turning into 41

vigilantes and criminals. Criminals also hide behind people who demand service delivery because it is their right, and then end up highjacking the legitimate demands. We have seen this type of people burning down offices and textbooks in schools. When talking about these rights in some instances that may include destroying property that belongs to foreigners.

(13:16) They are plenty in this country because you know in their own countries there is no money. They are plenty in this country because they are here to take your money.

(13:35) The question is, can you say there is nothing that you have learnt over the twenty (20) years? What will you say one day maybe when we find ourselves in fierce fires whereupon a group of them will even overpower the police?

(14:02) We have also heard about toddlers and grandmothers who are raped by family members. Where are the real men? Why can’t young men go after their peers and leave grandmothers alone. No, they are wrestling after your grandmother. Some things make me really wonder what has happened to real true men. That they may crave and lust after newly-born babies and grandmothers. 42

(15:06) I think Honourable Minister some of the contributory factors are the liquor boards, that is where the nation is being destroyed. The liquor boards that give birth to taverns where people jive the whole night and the whole day, drinking alcohol until dawn. These people get licences and people’s lives are changed. Where exactly are we taking this country? Is there any country that can live on alcohol? Do you know that South Africa is number 3 in the whole world on drunkards. What does this mean to us? What is the meaning of that to you as a South African, a Zulu living in KwaZulu-Natal, under which king representing you everyday?

(16:38) Irrespective of how the situation is, I must respect you as people of KwaZulu, but how can a nation of drunkards know how to do things? God will distance Himself from such a nation. They also do not know God because they are always drunk and once they are drunk they engage in sexual acts, without knowing who a person slept with and who has impregnated her because of drugs and all such stuff.

(17:16) My question remains, where am I taking this country? Where am I taking this country? You see, as some of these things happen here, at the end of the day the blame will be passed on to the police. The police will be called to douse the flames. As they come to douse the fires they do not get xxxx (17:50). 43

(17:58) As we observe all these things that are happening we ask ourselves whether is this the freedom we were fighting for? You know I am afraid because the freedom seems to have turned people into uncontrollable animals.

(18:20) Is there any country that cannot be controlled? Children want to be in control of the elderly. One day we will also be gone because we were children to our fathers. We were children to our fathers and we respected and listened to them. You who do

not want to listen how do you think you will be in charge when we are gone when you do not want to be under control. Do you see the damage that I am referring to? A naughty child who does not want to take advice will not succeed in anything.

(19:08) My fellows, I xxx (19:10) This event was supposed to be hosted somewhere else but I said it should come back here because of knowing the things that are happening here. I envied Pongola since I was a small boy, ambulances departing from this area, going up and passing whenever it was a weekend, passing about five (5) times going towards Nongoma.

(20:04) xxxx the manner in which people of this area were at each other’s throats. What is happening here at Pongola is nothing new. There were people who could set traps for others, others 44

were destroyed by traditional beer. There were ghosts here, more especially at the farms, where people lived under extreme conditions. They lived under extreme conditions, police walking on bicycles and their knobkerries being taken away with orders to go and bring back prisoners. People were still respectful and they would round-off all prisoners and watch those carrying knobkerries.

(21:21) People were respectful when they saw mistakes. What type of generation do we have nowadays which makes us say God has given us a lost generation? It’s because it has lost respect. When my father passed away I still knelt before him. When my father passed away I had not entered into his private space. I had never crossed paths with my father …. a person saying I will not respect this one because he/she is not my biological parent. Let me tell you, such a person does not have any blessings. A person who is able to respect a person of the same age as his/her mother and his/her father is blessed, even the one who respects this generation we are talking about.

(22:31) It is painful to me to see this land that was hard fought for by my forefathers and thousands other people being changed xxxx (22:38) There is nothing as painful as that to me. I have sleepless nights thinking about these things, asking what type of people has God placed me in the midst of. I ask myself what type 45

of freedom did king Cetshwayo and his son, Mamonga, who was honoured in 1912 when he was made President when the African National Congress was established, fight for.

(23: 29) What type of freedom? Or is it just something that is written down. I am not talking politics, I am restating history, I am not politicising this issue. But king Zulu together with king Cetshwayo were imprisoned for fighting for this land. People were ululating in 1994 when freedom dawned, and then in 2015 people of South Africa are said to be unwilling to listen, they are people who do not want to work, they are thieves, people who rape children, people who break into other people’s homes, people who are lazy who do not want to plough, people who are looked upon by other nationalities to be fools whose inheritance needs to be taken away.

(24:33) As I am talking all sorts of things are hanging in front of many shops, rags that make the streets filthy, you cannot even tell what type of shop each one is and what type of shop it used to be, blocked by foreigners.

(24:54) I know that sometimes it is difficult for some politicians to express themselves about certain strange things, because the same perpetrators of crime become voters in about five years. 46

Honourable Minister and distinguished guests, you will pardon me as it is my duty to talk in such situations.

(25:22) I do not have to wait for five years to express myself when something goes astray. As the king of KwaZulu and the king of the Zulu nation, a nation that is respected in the whole world for its role in the liberation of Africa, I will not keep quiet if our country is taken for granted by people without vision. The time for vision has come. I request our South African government to help us clean our land of lice.

(26:21) We need to remove all itching bedbugs and lay them bare in the sun.

(26:32) We request that all foreigners should take their baggage and be sent back. Please listen carefully, please listen. When you were in their country you were in war, you even also assisted them to attain their liberation, you know that. That’s why other countries got their freedom because they were assisted by those who left as liberation soldiers from South Africa. You never started selling anything.

(27:46) Honourable members we should also just go there to visit, not to stay permanently. But let someone take care of us. You must wake up and go to the farms and work, not just to stay at 47

home. To the leaders of the country, please come out of the closet, and you who are pastors because you are also hiding serious criminals within the house of God. And to the police I say work harder so that there should not be any hiding place xxx(28:40) remove all the wolves in sheep skins.

(28:53) While still on the issue of the police, I wish to say you are a force that is close to my heart, I will not forsake you. But you will not work well if there are people that have entered South Africa under the guise of trading when they are here to take our money to their countries. But it is not known what drove these people that are roaming our country from their countries, maybe they are criminals.

(29:36) We have very good relationships with some African countries, but we should not have the type of relationships that will turn us into weaklings who believe we are holier than others in Africa. Let us not be holy because they have their laws, we should also have our own laws. The police are the backbone of the safety of the country, they are the answer to a community living in fear of crime. The police are the first to hear about problems, because they work within the communities. That is why I say we must deal with our lice, even now educators are living in fear where our children wake up to go to school to. They live in fear because someone is carrying an Okapi. The Okapi is used 48

against our children at school, they are very brave. There is the law that is said to be about the violation of children’s rights. What children’s rights are being violated? Which rights are violated when one child stabs another child with a knife. These children carry guns and other dangerous weapons. Educators are not safe from these children because of rights.

(31:36) Why did we not die because of the hiding that we received when growing up? Nowadays I cannot discipline my child even when I see him/her going astray. The child must now have the police numbers and call them saying there is a man abusing them at home, referring to their father.

(32:00) I know my fellows that the police are the first to hear, but I would like to warn the police about the danger that they themselves are in. The truth is that there are so many people out there who want to defile your reputation with the aim of making the South African government vulnerable. They want to make the government vulnerable by criticising your job. To hinder the police in the execution of their duty is to make the government of the land vulnerable. There is no one who does not know that the police are the last line of defence for our democracy, the same democracy through which all sorts of people are allowed to enter our country, with the notion that South Africa swallows everything, without knowing what drove these people ways from 49

their countries.

(33:13) Without the police force and their bravery in executing their duties this country will not be safe and will be unable to have progress. Anyone who does not wish anything good for our country and who looks down upon our systems will ensure that the first person to be removed is the police because he wants to do his dirty things. The removal of the police from where they are supposed to be is disaster. That’s why I am pleading with you to not move from being the protectors of society and peacemakers and providers of safety within our communities. Programme director I wish the community could see the ideas and the procedures for fixing what is wrong in our country. I am not saying this because it is easy to say, but because I know that it works if we are together. But let us change our lifestyles, the way we live in the country should be changed if the sad situation we find ourselves in is to change.

(34:46) Our land is confronted by the lack of water due to climate change. There are indicators because some conditions are a result of pollution from some firms, leading to the entire country being polluted just like the entire world, the result being unheard

of sicknesses. Please do self-introspection people of KwaZulu. Where has all the abundant rain that this country has had gone to? Where has the rain gone to?Straighten up, God wants you, 50

there is no other person that God is looking for. God wants to know where the Zulus are at this stage. That is why there is such laziness. If Honourable Minister we were to fly over the whole of Natal you will not be able to see even a single one. Men are confronted with heavy problems that I have never seen or heard of – I have never lived with such men. There are problems of lazy men, who are drunkards and criminals.

(36:35) I therefore say, Honourable Minister, in the past thirty years in Nongoma Istarted a solution within the entire world, it was in 1984 xxx

( 36:55) The reed dance festival that has been renowned over the whole world. But I say tourism in our country should benefit the poor amongst us. There should be something that they benefit so that the land can develop in all aspects, so that when tourists come it should not be as it is claimed on various media that there are surprising attacks. Tourists from various places, when passing through, leave money. I did this making use of the knowledge of our cultures as I have already mentioned. I was talking about the cultures of the people of KwaZulu because we are sitting on wealth, the soil we dwell on is clay. It is fertile soil that brings forth food, it produces cereals through which sorghum beer is made, it also produces calabashes. We are sitting upon precious stones, 51

we stay on the grass and under trees that bear fruits. All this is life to us but our people have neglected everything.

(38:43) Can you see that God is punishing you? My request, therefore, is that as I did this it was meant to be a lesson. There is wisdom in gaining knowledge and using it together with the people of the area. I request you to work together, as we all come from all the areas bordering Zululand so that we can be able to find a long lasting solution as we work together with the affected people. There should not be anyone who proclaims that he/she will not be told. Culture plays a pivotal role in moulding the character of a person. In moulding a person culture plays a critical role, it is our heritage. As Macingwane has already indicated, we are affected in the manner in which our festivals are attached. The government supports the traditional leadership system because it was not introduced to destroy people.

(40:01) I taught children from 1984 as I am not old. I was born when the National Party was established, during the era when South Africa still used the pound, shillings and pennies as its currency. I saw all those things happening. In 1961 I witnessed South Africa’s change when the National Party took power. I saw our currency changing. The Afrikaners thought that their currency was better and they created the Kruger rand using gold. The 52

Kruger rand improved the South African currency. The rand surpassed the currency of many other countries.

(41:08) I am talking about something that I know, the xxxx government got into power (41:10) I know all these things. I know about the coming into being of that government. There are children that will tell you about freedom, what do they know about freedom? Why don’t they ask us, the elderly? We can just look in amazement as there is no respect all over. Even in places where there are people who are in leadership, as we see in Parliament. What is happening there is a shame.

(41:49) As I have indicated that culture plays a role in moulding a person, it is within culture that a male and a female are developed into being responsible citizens with respect. If you cannot respect yourself just forget about what you can do here. It is said that the Minister is wasting the Department’s money by speaking here as he will be addressing stupid people who are drunk. That’s why I do not doubt that if we could cooperate in carrying out certain cultures there is so much that our country can benefit. Just for an example, if gathering boys and girls could be something that we all cooperate on, this could have very positive spinoffs in building tomorrow’s nation. That is why I as your king together with your chiefs am asking that we should draw closer to each other in fixing the situation by drawing closer to God first. 53

(43:09) I am closer to God, I am sitting with Him. I do not know about you who are without God, that is why I am saying the whole Zulu nation must get closer to God. Yesterday there was a teaching from the Gospel of John chapter 1 where there is talk about the Word, and how He came to the world and the purpose of His coming. Believers will recall that yesterday’s service xx xx(43:51) That is important because God punishes a nation without God. Our children are found in shebeens, that is why I am saying they are raising God’s wrath. The police, religious people, sportspeople and the business sector should join forces with me when we use culture and knowledge in coming up with solutions for the problems confronting our country, especially on people’s behaviour. Because if we do not do that we are seriously still going to be punished. Although I may not elaborate further but I know that the cultural work that I am doing every Passover or during December where I gather young boys and give them life skills, and also in building sectors to combat crime as well as during the reed dance festival. There is so much that we can do in training and moulding our youth. We should not neglect them. These children want to be begged, but we the elderly should first get our house in order.

(45:36) Therefore to all leaders in the land of the Zulus, I wish you to be always prepared to work together with the police through all 54

avenues, cooperating so that our people can be safe. As the kingdom, we are prepared to assist where there may be problems. We will not abandon a person because you know that there is nothing we can avoid. There should be cooperation if we are to achieve peace in our country. As the kingdom we accept that through cooperation we can prevent so much criminality and violence in the farms and in our communities.

(46:35) Honourable Minister, these farms that the government has given to certain people have not landed in the right hands (46:52) xx xx My cows have been stolen, they have been collected by certain people with the Nzuza surname. They forcefully stole my cows. I told the police that those cows belong to the king. There is so much corruption within the farms that the government has given to some people, more especially those with forestry because that is where our forefathers’ heritage is. If we can cooperate we can prevent sicknesses. No one will go to bed on an empty stomach if we can all go out and work, cooperating in all forms of combating death. In Zulu we say hunger begets wrath because an empty stomach does not know the law. We must therefore search for solutions to ensure that our country is alleviated to a level where we can protect our life. With these few words I would like to urge all of us to cooperate for success. I thank you Honourable Minister. 55

8.2 Media commentaries and publications on the utterances of the Respondent

8.2.1 Following the utterances of the Respondent, there were numerous print and electronic media reports covering the speech. In addition, commentaries regarding the same were widely published.

8.2.2 The media actors reported on the Respondent’s utterances, translated these into English, and provided interpretation and meaning in English of what the Respondent had said in isiZulu.

8.2.3 It is important to note that at this stage, the violent attacks on foreign nationals had not yet occurred and only started on 30 March 2015.

8.2.4 In some of these publications there was reference to the utterances of the Respondent as amounting to “hate speech” or being “xenophobic”.

8.3 Violent attacks on foreign nationals following Respondent’s utterances and media publications and commentaries

8.3.1 No attacks on foreign nationals took place in Pongola on the day of the Respondent’s speech or any time material to these

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investigations or to-date of publication of this report. In essence the audience at the event never took utterances in the speech literally.

8.3.2 However, on 30 March, 2015, violent attacks on foreign nationals occurred in Isipingo and in the central business district of Durban violence also erupted.

8.3.3 In essence these attacks took place fifteen (15) days after the Respondent’s public utterances.

8.3.4 Isipingo, the location where attacks against foreign nationals erupted, is an urban location in the central business district of Durban.

8.3.5 Isipingo is geographically situated 392 km from Pongola where the Respondent’s utterances were made.

8.3.6 Two (2) incidents of violent attacks against foreign nationals took place within the Isipingo CBD and Isipingo Rail Area on 30 March 2015 as confirmed by a report from Umlazi Cluster SAPS that the Commission has on hand.

8.3.7 The public protests and attacks on foreign nationals continued and were sustained until and into the 31 March, 2015 and for a period thereafter.

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8.3.8 A group of about 120 (one hundred and twenty) foreign nationals sought refuge at the Isipingo Police station, and an additional 180 (one hundred and eighty) were rescued from community mobs by the SAPS and kept at Isipingo Police Station for safety.

8.3.9 Later, some of these foreign nationals refused to return to their homes for fear of being attacked and were allowed to occupy the Isipingo Police Station.

8.4 Stated causes of violent attacks on foreign nationals

8.4.1 Informants interviewed suggested that the trigger of the violence in Isipingo was a labour-related protest by workers from Jeena’s Supermarket. These informants include the SAPS.

8.4.2 The strike action, which was carried out on 30 and 31 March, 2015, was organised by South African National Civil Organisation (SANCO).

8.4.3 On Monday 30 March, 2015, the striking workers together with community members barricaded Prince Mcwayizeni Road with rubble, stones, logs and burning tyres near Jeena’s Supermarket.

8.4.4 The community members’ involvement was to support the employees who were on strike. The demonstration started in front of Jeena’s Supermarket.

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8.4.5 SANCO had alleged that Jeena’s Supermarket management was exploiting people by employing them as casual workers for years without registering them on permanent basis; further that South African workers who were unable to speak and understand English were released from employment and replaced with foreign nationals.

8.4.6 At the time of the strike action, SAPS received reports that foreign nationals were being assaulted in their rented residential abodes at Emalandeni Informal Settlement.

8.4.7 On the same day, a group of men who witnesses allege were South African attacked foreign nationals at Isipingo CBD.

8.4.8 The attackers looted shops and hair salons belonging to foreign nationals near E, F and G Taxi Ranks, Jadwart Street, Kajee Street, Thomas Lane, Durban Taxi Rank and Folweni Taxi Rank.

8.4.9 In the course of these altercations, three foreign nationals sustained injuries.Two sustained head injuries having been struck with stones, and one sustained a stab wound on his hand. The injured foreign nationals were treated at Prince Mshiyeni Memorial Hospital and later discharged.

8.4.10 An unidentified vehicle drove past a house occupied by foreign nationals at No 26 Chan Road and fired shots towards the same house and the bullet hit the wall but no one was injured.

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8.4.11 In the course of the strike action, a group of men alleged to be South African entered a Somalian shop at J Section at Umlazi and attempted to loot it.

8.4.12 The shop owner fired a shot towards the group of males and in the process shot an African female adult, whose name and particulars are known to the Commission.She later died at Prince Memorial Mshiyeni Hospital.

8.4.13 In what witnesses refer to as an act of retaliation, on Friday 10 April, 2014 at about 19:00 a group of about 50 (fifty) African males armed with spears and sharpened iron rods invaded a container tuck-shop at W Section in Umlazi owned by a foreign national and demanded that the Ethopian nationals open the container.When they refused, the African males poured a flammable substance through the serving window and set it alight while the Ethiopian nationals were inside.

8.4.14 Two Ethiopian nationals were badly burnt and rushed to Prince Mshiyeni Hospital, and one of them later died.

8.4.15 The owner of Jeena Supermarket’s view was that the labour dispute/strike and the violence that erupted thereafter was attributable to SANCO who had spread rumours about the company having hired foreign nationals to replace South African workers.

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8.4.16 The overwhelming majority of interviewees in the community and SANCO held the view that there was no causal link between the utterances of the Respondent and the subsequent violence against foreign nationals in Isipingo.

8.4.17 The only interviewees that linked the utterances of the Respondent with the subsequent violence that broke out in Isipingo were foreign nationals. These interviewees indicated that there had always been underlying tensions between themselves and the locals.

8.5 Utterances of the Respondent following the violent attacks against foreign nationals in Isipingo

8.5.1 Following the attacks on foreigners in Isipingo, and the various media publications that called on the Respondent to publicly apologise and withdraw his comments, the Respondent convened an Imbizo that was held at the Moses Mabhida Stadium in Durban on the 20 April 2015.

8.5.2 At the Imbizo, the Respondent delivered a speech partly in English and partly in isiZulu.

8.5.3 Several media outlets translated what the Respondent said in his speech into English.

8.5.4 The following are some of the extracts of the media in this regard:

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“The months of March and April have been difficult months in the life of Africa.”

“We have not learnt from the mistakes of the past.”

“Most of these attacks are directed toward people from other parts of Africa.”

“South Africa has gone out and done the very things that were warned against in the Human Rights Watch reports of 2009.”

“The speech I made (in Pongola) has become central and very important.”

“It has become more important now than when it was given. That is why this Imbizo was called.

“I’ve called this Imbizo so we can take action against those who are doing these things.”

"It was important for me to intervene because this was a crisis.

“The speech I made was taken out of context by the media and it is now important to explain and clarify." 62

“There’s a third force that we must look at.”

“When we see people violating the rule of law, we must ensure these people are brought to book.”

"Peace must be first and foremost"

“The Human Rights Commission needs to be given time to conduct its investigation thoroughly and without intimidation.”

“I've written two letters to the commission and have urged them to also investigate the media's involvement in inciting violence.

“Also the government must be very vocal and clear with how people from outside the country are settled.”

“All these laws must be enforced and followed.”

“The foreign nationals who are inside KwaZulu-Natal, we also invite to come forward. We would like to sit down with them build relationships."

"We will meet again to sign a peace accord with the embassies. I will ask teachers at schools to teach school kids about xenophobia and how to treat foreign nationals.’’ 63

"I also urge municipalities to clear the by-laws in the cities so that foreign nationals can work with our people.’’

“God bless Africa”

9 Preliminary Analysis

9.1 Notwithstanding that the Complainants had not furnished the Commission with the speech in respect of which they had lodged their respective complaints, and notwithstanding further that the complaints had been based on what various print and media actors had reported and interpreted, the verbatim transcription of the speech and the sworn translation of the same speech that was now before the Commission represented the best available source of what the Respondent had actually said.

9.2 In addition, the Commission had a number of print and media clippings before it that represented the body of information communicated by the media to the public which purported to represent what the Respondent had said in his speech.

9.3 Therefore, the Commission’s preliminary analysis was directed at analysing three sets of documents, to wit, (a) the isiZulu transcribed speech; (b) the English version provided under sworn translation, and (c)

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the versions of reported speech published by various media actors to determine the following:

a) The exact words that had been uttered by the Respondent;

b) Whether these words prima facie amounted to hate speech and were capable of inciting the violence that ensued in Isipingo 10 (ten) days after the speech?

c) Whether any one or more media actors that had published articles relating to the Respondent’s speech (from 15 March, 2015 when the Respondent made his speech and on 30 March, 2015 when the violent attacks against foreign nationals erupted) had mediated language and meaning in a manner that fairly represented what the Respondent had actually said; and if not, whether this could have inadvertently incited violent attacks against foreign nationals in Isipingo?

9.4 Finally, the following are selected extracts of reported translation of what the Respondent had said as published by the media, and which some of the Complainants relied on to allege hate speech against the Respondent were the following:

When foreigners look at them, they will say let us exploit the nation of idiots. As I speak you find their unsightly 65

goods hanging all over our shops, they dirty our streets. We cannot even recognize which shop is which, there are foreigners everywhere. I know it is hard for other politicians to challenge this because they are after their votes. Please forgive me but this is my responsibility, I must talk. I cannot wait for five years to say this. As King of the Zulu Nation… I will not keep quiet when our country is led by people who have no opinion. It is time to say something. I ask our government to help us fix our own problems, help us find our own solutions. We ask foreign nationals to pack their belongings and go back to their countries.

10 Outcome of preliminary analysis

10.1 From a preliminary analysis of the afore-going set of documents, the Commission arrived at the following conclusions:

a) That the various translations and inferences published by a number of print and electronic media actors in English differed in material respects from what the Respondent actually said in the verbartim electronic recording as provided by the sworn translation in the Commission’s possession.

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b) That the Respondent’s utterances as set out in the transcription of the verbatim audio-recording of the speech in isiZulu, could reasonably be construed to have been uttered with the clear intention to be hurtful to foreign nationals.

c) That the Respondent’s utterances as set out in the transcription of the verbatim audio-recording of the speech in isiZulu, could reasonably be construed to have been uttered with the clear intention to be harmful7 to foreign nationals.

7 According to R v Keegstra, beyond physical harm, “harm” can extend to “emotional damage” with “psychological and social consequences.”

8 A number of commentaries on Section 10 of PEPUDA reflect on the difficulty of distinguishing between “hurtful” and “harmful” (See, for example, Teichner, S, “The hate speech provisions of the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000: The good, the bad and the ugly.” (356-7, SAJHR Vol 19, No. 9 2003.

9 The emotional damage that may be caused by hate speech can result in “humiliation and degradation” and “impugn on human dignity.” See, Teichner as cited in footnote 9 above.

d) That the Respondent’s utterances, being both hurtful and harmful,8 amount to a violation of the right to dignity9 as enshrined in Section 10 of the Bill of Rights.

e) The Respondent’s utterances as set out in the transcription of the verbatim audio-recording of the speech did not constitute a call to locals to take arms or commit acts of harm or violence against foreign nationals, and could not have been reasonably construed as inciting violence against foreign nationals.

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11 Respondent’s defence

11.1 In the course of the investigation, the Commission put various allegations, documents and translations to the Respondent and called for the Respondent to provide a response.In each case, correspondence was received and acknowledged by the King’s Office.

11.2 It is important to re-iterate that the Commission has not received a direct response from the Respondent himself.

11.3 Correspondence and responses emanated from the King’s office on behalf of the Respondent.In particular, Bonginkosi M Qunta (Rev), Acting Chief Executive Officer (hereinafter referred to as “ACEO”) of the Kwazulu-Natal Royal Household Trust signed formal responses and communication on behalf of the Respondent and acted at all times material hereto on the mandate of the Respondent.

11.4 In this regard and manner, the Commission received a letter dated 27 May 2015. The letter was signed by the ACEO. In the letter a request is made to the Commission to extend the due date for a response from the Respondent to be submitted by 5 June 2015 instead of the earlier agreed date of 28 May 2015.

11.5 In the letter from ACEO it was made clear that “significant progress has been made in the preparation of His Majesty’s response”.

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11.6 A formal response to the allegation made against the Respondent was sent “prepared and signed on behalf” of the Respondent and is dated 5 June 2015.10

10 Bonginkosi M Qunta “Statement on behalf of His Majesty, King Zwelithini Kabhekuzulu in response to the complaint by the African Diaspora Forum and others to the South African Human Rights Commission” (5 June 2015) available on hand, paras 4 & 7.

11.7 The response to the allegation is signed by the ACEO. The response states that “[t]he Royal Household Trust together with a Committee appointed by His Majesty, the King” was tasked to prepare the response to the complaint lodged against the Respondent. It can therefore be correctly concluded that the response is one sanctioned by the Respondent himself and forms his defence to the allegations against his person.

11.8 In the response the Respondent raised 2 (two) key procedural matters:

a) Identity of the Complainants

The Respondent raised the point that he was not obliged to respond to the complaints levelled against him because the identity of the complainants had not been fully disclosed to the Respondent by the Commission.In this regard, the Respondent demanded that the Commission reveals the identity of all of the Complainants and indicates that he hopes “the Commission will in due course provide full reasons why it expects the King to answer to faceless accusers.”The Commission’s response to this request was to point the Respondent to the relevant provision of the Commission’s Complaints Handling 69

Procedures that allows a complainant to maintain anonymity upon request.

b) Hearsay

The Respondent raised the procedural point that he was not obliged to respond to the complaints because, in essence, the complainants were relying on hearsay to make the conclusions that they did.11

11 Bonginkosi M Qunta “Statement on behalf of His Majesty, King Zwelithini Kabhekuzulu in response to the complaint by the African Diaspora Forum and others to the South African Human Rights Commission” (5 June 2015) available on hand, para 4.

The hearsay that the Respondent referred to in this regard was the media reports that purported to report on what the Respondent had said.This procedural matter was resolved by the Commission when an identifiable witness with first-hand knowledge on oath of what the Respondent had said, and armed with an audio-recording of the Respondent as he spoke at the Moral Regeneration Conference was unearthed by the NGO.The Respondent has to-date not refuted the authenticity of the audio-recording which was furnished to him.

11.9 Thereafter, the thrust of the Respondent’s defence to the allegations levelled against him on the substance, was as follows:

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a) Poor translation

First, that the Respondent had delivered his speech in isiZulu. Therefore, the media’s English translation of what the Respondent had said in isiZulu had been lost in translation and had misrepresented what the Respondent had actually said.

b) Distorted meaning

Second, that the Respondent had delivered his speech in isiZulu, which language is rich in idiomatic and proverbial meaning.Therefore, the media and complainants’ interpretation (drawn solely from the media’s account of what was said) of what the Respondent had meant in context, had been so poorly translated,12 misinterpreted and distorted as to be unfairly inflammatory and mischievous.Further, that the meaning ascribed to the Respondent by the media was not the same as that understood by subjects of the Respondent present at the conference all of whom were well-versed in the isiZulu language.

12 Rev Bonginkosi M Qunta “Statement on behalf of His Majesty, King Zwelithini Kabhekuzulu in response to the complaint by the African Diaspora Forum and others to the South African Human Rights Commission” (5 June 2015) available on hand, para 6. 71

c) Statements did not amount to hate speech

Third, even on the media’s version (and Complainants’ interpretation) of what the Respondent had said, the words ascribed to him did not amount to hate speech. In the Respondent’s correspondence to the allegations made by the complainants the King’s office indicates that the allegations are “frivolous and devoid of any substance.”

It is worth noting that the Respondent did not offer an alternative English translation to the speech that would more closely have mirrored his communication, but rather only dismissed that which was provided through the Complainants.

d) No intention to incite violence

Fourth, that the Respondent denied that he had the intention to incite violence against foreign nationals. In support of this assertion, the Respondent drew the Commission’s attention to similar and related public occasions at which the Respondent had made public calls for non-violence and calm in cases of violent attacks on foreigners both before and after the speech at the moral regeneration conference. In particular, the Respondent pointed the Commission to a subsequent 72

speech on 20 April 2015 in which the Respondent called for “peace, adherence to law and protection of all.”13

13 Bonginkosi M Qunta “Statement on behalf of His Majesty, King Zwelithini Kabhekuzulu in response to the complaint by the African Diaspora Forum and others to the South African Human Rights Commission” (5 June 2015) available on hand, para 11.

14 Bonginkosi M Qunta “Statement on behalf of His Majesty, King Zwelithini Kabhekuzulu in response to the complaint by the African Diaspora Forum and others to the South African Human Rights Commission” (5 June 2015) available on hand, para 6.

e) Violent attacks instituted by the public on mistaken and erroneous belief, fuelled by the media

The Respondent concludes that, to the extent that the violent attacks that ensued pursuant to the publication of his statements, the Respondent regretted that people had acted unlawfully under a “mistaken and erroneous belief” that they were acting on the Respondent’s orders.14

The Respondent’s defence is summarised by the following extract of his correspondence to the Commission:

4. All the complainants rely on either the media or third parties as their source of information. None of them has been directly affected by the so called hate speech which in their statements is constituted by the following "we request all foreign nationals to pack their bags and go". They do not state why these words should be ascribed the meaning they give. Needless to

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state that the complaints are frivolous and devoid of any substance.

5. His Majesty, the King was a guest of the Minister of Police at Ophongolo Country Club on the 15th March 2015, in a moral regeneration conference.

6. It is regretted that while His Majesty spoke throughout in ISIZULU and to an audience which is well conversant with the language, the media considered it appropriate to make use of an unqualified individual as an interpreter. Not only was the message lost but the idiomatic expression used by His Majesty does not have any English equivalent. Needless to state that it was never His Majesty's intention that His words be misused and abused. The fact that people acted unlawfully under mistaken and erroneous belief that they were carrying out His orders is deeply regretted and unfortunate.

7. His Majesty's speech of the day runs into about sis pages in total. Regrettably prominence is given of a portion in the form of a radio clip of less than three seconds. The translation of this portion constitute one page. It is significant to note that this is also a departure

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from the prepared speech. Poorly translated as it may we could find no hate speech after listening and reading the translation provided. From this we conclude that those who claim that the material provided support the allegations of hate speech by the King are mischievous and intent on giving the King a bad name.

8. It will be noted from the complainants that according to them the so called hate or xenophobic comments were made on the following days, “last weekend”, “ongoing”, “March 2015”, “21 March 2015”, “Mid-March 2015”, “April”, “March 23”, “March/ April”, “14 April 2015”, “6 April 2015”, “22 March 2015”, “15 March 2015”, “11 April to 14 April 2015”.

9. We have highlighted the dates on which the alleged utterance were made to demonstrate that these cannot be genuine complainants. Furthermore none of all the complainants was a member of the gathering that was addressed by the King.

10. We have purposely referred to the dates above as given by the complainants do demonstrate that none of the complainant could have been serious with

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his or her claim. It is our considered view that those are the people who seek publicity at the expense of His Majesty the King. We submit that there is not even an iota of evidence which would justify any further investigation on this. In so submitting we bring to the attention of the Commission these facts:

i. These are all faceless complainants who were never affected by the so called hate speech,

ii. None of the complaints was a member of the audience addressed by the King,

iii. In the words quoted as constituting "hate speech" nothing hateful is provided,

iv. The translation given while highly inaccurate does not in any way constitute xenophobic or hate speech.

11. Despite what is stated above, the King took it upon himself to call IMBIZO at Moses Mabhida Stadium on the 20th April 2015 and explained himself. He called for peace, adherence to law and protection of all. He has also repeated his call for peace in various other gatherings.

12. The King wishes to commit himself once more to peace, social cohesion and nation building under the 76

rule of law. In this regard he invites all likeminded to join hands with him for a better world.

13. The king is committed to peace and social cohesion underpinned by the Rule of Law. This has been his motto throughout his reign over forty four years. This is further underscored by various gatherings he has called subsequent this unfortunate episode where his name has regrettably been misused. Among others he has met the King of Somalia with whom a peace protocol will be signed in due course.

12 Legal issues for determination

Arising out of this investigation, the following substantive legal questions arose for consideration in this matter.

12.1 Whether the Commission could rely on electronic evidence for determination of matter

12.1.1 The first question for consideration by the Commission was whether it could place reliance on the transcribed record of the audio-recording made by a witness physically present at the moral regeneration conference where the Respondent is alleged to have communicated words that amounted to hate speech in relation to foreign nationals.

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12.1.2 The Commission was mindful that electronic recordings must be treated with due care when used as evidence to arrive at legal conclusions.

12.1.3 In the present case, the Commission obtained the audio recording of the Respondent’s utterances from an identifiable witness that deposed on oath to the fact that he was present at the moral regeneration meeting.

12.1.4 The audio recording can be regarded as real evidence as articulated by Watney in the analysis of S v Fuhri15 where he noted that the “photograph of a vehicle whose driver had committed an traffic offence is real evidence” (sic).16 In this regard therefore the audio recording of the Respondent speaking at Pongola can be regarded as real evidence.

15 1994 (2) SACR 829 (A).

16 M Watney, Admissibility of electronic evidence in criminal proceedings: An outline of the South African legal position, 2009(1) Journal of Information, Law and Technology available at http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/2009_1/watney/watney.pdf

17 (7023/2008) [2008] ZAGPHC 215 (11 June 2008) para 40.

12.1.5 The authenticity of this recording has not been disputed by the Respondent.

12.1.6 The Commission has considered the pronouncement of the courts most recently in the Motata v Nair and another case where the judge held that “[i]n the result we are satisfied that in order to determine the authenticity and originality of the recordings and hence their admissibility, the first respondent is entitled, and indeed obliged, to listen to the recordings.”17

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12.1.7 In the matter of S v Ramgobin and others18, Milner JP held that “If witnesses who testify as to the accuracy of the film or tape recording are not cross-examined, and/or the accused does not give any evidence to the effect that the recording is not accurate, that is clearly an important factor and may be a crucial one.”

18 1996 (4) SA 117 (N) at para 124.

12.1.8 In the absence of challenge by the Respondent, the Commission has no reason to doubt the authenticity of the recording as provided under oath. Indeed, it is not uncommon for courts of law to admit electronic evidence until proven otherwise.

12.1.9 The Commission accordingly was not required to take further steps to prove the authenticity of the recordings in the absence of a dispute to authenticity raised by the Respondent.

12.1.10 Finally, it is noted that the informant swore an oath that the recording provided is authentic. The Commission is aware of the fact that electronic recordings can be subjected to manipulation and that should the King’s office have challenged the authenticity of the, and subsequent translation they could have done so when the information was provided to them.

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12.2 Whether the utterances of the Respondent amounted to hate speech

12.2.1 The next question arising directly from the complaints lodged with the Commission by the Complainants alleging that the words of the Respondent amounted to hate speech within the meaning set out in Section 10 of the Promotion of Equality and Prevention of Discrimination Act (PEPUDA):

12.2.2 PEPUDA states that no one:19

19 Section 10, Promotion of Equality and Prevention of Unfair Discrimination Act 1 of 2000.

10 may publish, propagate, advocate or communicate words based on one or more of the prohibited grounds, against any person, that could reasonably be construed to demonstrate a clear intention to -

(a) be hurtful;

(b) be harmful or to incite harm;

(c) promote or propagate hatred.

12.2.3 Courts both within South Africa and beyond have pronounced on the matter of hate speech and incitement to commit violence. In South Africa some of the cases dealing with hate speech are:

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a) Afriforum and another v Julius Sello Malema20 in this case Malema was accused of hate speech for singing a song calling for shooting “Boers” and farmers. While Malema argued that the song had historical significance and was not to be given a literal interpretation, the Court disagreed and found that it amounted to hate speech and consequently the Court banned the singing of the song. While there may be differences of opinion on the decision of the Court, the decision stands and was never appealed.

20 2011(6) SA 240. See also ‘Hate speech and freedom of expression in South Africa’ available at http://fxi.org.za/home/fxi_downloads/Hate_Speech_and_Freedom_of_Expression_in_SA.pdf (accessed 5 June 2015).

21 2003(11) BCLR 92 (BCCSA). See also ‘Hate speech and freedom of expression in South Africa’ available at http://fxi.org.za/home/fxi_downloads/Hate_Speech

_and_Freedom_of_ Expression_in_SA.pdf (accessed 5 June 2015).

22 R v Keegstra [1990] 3 S.C.R. 697 and [1990] S.C.J. No. 131.

b) In the case of South African Human Rights v SABC21, the Court also held that the lyrics of a song that were “derogatory and inflammatory” against Indian people amounted to hate speech. The interpretation of hate speech and incitement to violence is still being developed in South Africa even though there has been a recognition by the Commission of an increase in hate speech and incitement to violence.

c) In other jurisdictions, for example in Canada, the matter of hate speech has also come before the courts. For example, in the case of R v Keegstra, the accused was convicted of anti-Semitism because he had written a book in which he stated that Jews were child killers, money lovers and that they had engineered the holocaust so that they gain sympathy.22

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d) In the present case, the question to be considered is whether the Respondent’s utterances could reasonably have been construed to be hurtful, harmful or capable of inciting violence or harm against foreign nationals.

12.3 Whether the utterances of the Respondent were carried out in the exercise of a freedom of expression

12.3.1 In his speech the Respondent appears to raise a host of social ills that he has identified in his constituency and associates with foreign nationals. These include, generally, illegal immigration, unlicensed and unregulated informal trading, health standards informal trading stalls,23 public nuisance, money laundering, commercialisation of religion, poor integration of foreigners into social norms of rural communities amongst others.

23 As I am talking all sorts of things are hanging in front of many shops, rags that make the streets filthy, you cannot even tell what type of shop each one is and what type of shop it used to be, blocked by foreigners.

12.3.2 The Respondent raises these social issues and directs his concerns to provincial policy makers and executive authority, expressing concern that authorities are not taking appropriate action to address these ills.

12.3.3 The Respondent had, quite appropriately, invited representatives of the South African Police Services, Provincial Government and Local Government Council. The intention was clearly to encourage and call

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for orderliness and positive behaviours in the community, and obtain support from public policy makers and regulators to address these matters.

12.3.4 The Respondent raises these matters in his official capacity, and regards this as his duty. In the transcribed version in isiZulu, the Respondent says: (24:54) “Mhonishwa, bahlonishwa bami nizongixolela ezimeni ezinjalo kungumsebenzi wami kufanele ngikhulume”. In the sworn translation that the Commission relies on for interpretation, this statement reads (24.54) “Honourable Minister and distinguished guest, you will pardon me as it is my duty to talk in such situations.”

12.3.5 A traditional authority in South Africa bears constitutional and statutory24 responsibilities to express the views of the people that they serve and contribute towards social cohesion and local government in the country. They wield a lot of power in expressing the will of their people and in sometimes suppressing that will or in guiding the attitudes of their followers.

24 The traditional Leadership and Governance Framework Act of 2003

25 Leslie Bank and Roger Southhall, “Traditional leadership in South Africa’s new democracy’’, 407.

12.3.6 Therefore, rather than contradict democracy, traditional authorities can help support the spirit of constitutionalism.25

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12.3.7 Part of this responsibility is to use his moral and traditional authority to exert the rule of law, good governance and social development within the jurisdictions that they govern.

12.3.8 Traditional authorities have historically carried out this responsibility by convening regular Imbizos or Indabas with their subjects.

12.3.9 These platforms have been utilised by traditional leaders and understood by subjects to be platforms for norm norm-setting and denouncements of unacceptable behaviour.

12.3.10 In the present case, none of the parties have disputed that the Respondent convened the moral regeneration conference to address a range of social ills that had come to his attention within his jurisdiction.

12.3.11 Beyond the issues identified in paragraph 12.3.1 above, the Respondent also addressed his constituency, generally, on issues relating to crime, alcohol abuse and rape.

12.3.12 Even though his speech was critical of foreign nationals, it was just as critical of other persons within South Africa.

12.3.13 For instance, the Respondent berates nationals for their violent conduct during public protests and their destruction of property belonging to the state and to foreigners as follows:

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We have seen people demanding services from government, which is their right, and thereafter turning into vigilantes and criminals. Criminals also hide behind people who demand service delivery because it is their right, and then end up highjacking the legitimate demands. We have seen this type of people burning down offices and textbooks in schools. When talking about these rights in some instances that may include destroying property that belongs to foreigners.

12.3.14 It would be difficult to conclude that the Respondent was not acting in in pursuance of a legitimate freedom to express himself on social issues of concern to his community.

12.4 Whether the utterances of the Respondent exceeded the boundaries of freedom of expression

12.4.1 The matter of hate speech usually arises within the context of freedom of expression and so any attempt to limit it must be done with care as was noted in Handyside v United Kingdom26, where the Court held that freedom of expression:

26 (5493/72) [1976] ECHR 5 (7 December 1976).

is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a 85

matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no "democratic society". This means, amongst other things, that every "formality", "condition", "restriction" or "penalty" imposed in this sphere must be proportionate to the legitimate aim pursued.

At the core of freedom of expression lies the need to ensure that truth and the common good are attained, whether in scientific and artistic endeavours or in the process of determining the best course to take in our political affairs. Since truth and the ideal form of political and social organization can rarely, if at all, be identified with absolute certainty, it is difficult to prohibit expression without impeding the free exchange of potentially valuable information. Nevertheless, the argument from truth does not provide convincing support for the protection of hate propaganda. Taken to its extreme, this argument would require us to permit the communication of all expression, it being impossible to know with absolute certainty which factual statements are true, or which ideas obtain the greatest good. The problem with this extreme position, however, 86

is that the greater the degree of certainty that a statement is erroneous or mendacious, the less its value in the quest for truth. Indeed, expression can be used to the detriment of our search for truth; the state should not be the sole arbiter of truth, but neither should we overplay the view that rationality will overcome all falsehoods in the unregulated marketplace of ideas. There is very little chance that statements intended to promote hatred against an identifiable group are true, or that their vision of society will lead to a better world. To portray such statements as crucial to truth and the betterment of the political and social milieu is therefore misguided.

12.4.2 Therefore in deciding whether the Respondent’s utterances amounted to hate speech and incited violence, a fine balance must be struck between the right of any person to impart ideas that may be contentious areas of public policy and the limitations stated in law. This remains the case even if in the process a section of the population is inadvertently offended, shocked or disturbed.

12.4.3 Underpinning this assessment should be a recognition of the nature of a pluralistic society that is characterised by tolerance and broadmindedness. After all, this is the essence of a "democratic society" where people’s views and voices should not be unduly muzzled. The only

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legitimate limitation to freedom of speech would be if the utterances amounted to hate speech, which is specifically prohibited.

12.5 Whether the utterances of the Respondent could reasonably be construed to demonstrate a clear intention to be hurtful, harmful or promote or propagate hatred against foreign nationals

12.5.1 From an analysis of the utterances of the Respondent in the verbatim transcribed version of his speech, at no point did he issue a call to arms or any call for violent attack against any of these groups of people he criticised.

12.5.2 In the view of the Commission, it would be a stretch of the facts in this matter to come to the conclusion that any portion of the speech of the Respondent could have reasonably been construed to amount to incitement to violence or harm to foreign nationals in South Africa.

12.5.3 The Respondent did, however unequivocally call upon executive authorities to order all foreigners to leave the country (26:32) Sicela abantu bokuhamba bathathe umthwalo wabo babuyiselwe emva.” In the sworn translation: (26:32) “We request that all foreigners should take their baggage and be sent back.”

12.5.4 In the assessment of the Commission, this public call to authority for the expulsion of foreign nationals from the country could reasonably be

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construed to be hurtful and harmful within the meaning of Section 10(1) (a) and (b) of the PEPUDA.

12.6 Whether the utterances of the Respondent amounted to a violation of the right to dignity of foreign nationals

12.6.1 Having come to the assessment above that the utterance of the Respondent were both hurtful and harmful to foreign nationals, the Commission also comes to the view on the same basis that the utterances offended and violated the right to dignity of foreign nationals in South Africa.

12.6.2 The reason why hate speech is prohibited in our democracy is because it serves to protect target groups members and of fostering harmonious social relations in a community dedicated to equality and multi-culturism.27

27 R v Keegstra [1990] 3 S.C.R 697

12.6.3 In this regard, any form of hate speech amounts to the violation of the right to dignity because it disparages or diminishes the self-worth of a protected individual or group.

12.6.4 In this case, foreign nationals are a protected group. They are in the minority, and are rendered vulnerable by their reliance on the hospitality of the host country and its people to accommodate

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them. In this case any show of poor hospitality is contrary to the spirit of ubuntu which is central value of South Africa’s new democratic dispensation.

12.6.5 There can be little argument against the conclusion that a public expression by a public figure with moral authority to the effect that foreigners should pack their bags and leave, would leave foreign nationals diminished in their human dignity.

12.7 Whether the media mediated the utterances of the Respondent in a manner that ascribed hate speech to the Respondent, could reasonably have been construed to incite hatred and violence against foreign nationals?

12.7.1 Democracy is impossible without a free press. The presence of the press, and media in all its forms, helps to ensure that the public is aware of critical information and views that they need in order to make good policy decisions.28

28 Glenda Daniels, “The role of media in a democracy”, Johannesburg, 10 December, 2010, at page 49. See more at http://wiredspace.wits.ac.za/bitstream/handle/10539/10142/Glenda%20Glenda%Daniels%20Phd%201620May.pdf?sequence=2

12.7.2 Independent, robust news media and advocacy for freedom of expression is essential to the growth of a democracy. Social too creates platforms for expression. This expression creates critical conversation in and around all aspects of public discourse.

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12.7.3 However, the freedom of the press is not absolute. The only limitation to the freedom of the press is that this right should be exercised responsibly and within the limits set out in law. This includes the law that prohibits the incitement of hatred and violence against foreign nationals in terms of the PEPUDA.

12.7.4 The question that confronted the Commission in this regard arises from the central defence raised by the Respondent against the allegations levelled against him, to wit, that the media had poorly translated the Respondent’s speech thereby ascribing a meaning that was not intended, and in doing so were “mischievous and intent on giving the King a bad name.’’

12.7.5 The Respondent, during the Imbizo of the 20 April, 2015 attended by the Commission, specifically called upon the Commission to investigate the role of the media in having “misused” and abused” the words uttered by the Respondent, and thereby attributing an intention to incite violence against foreigners that the Respondent did not possess.

12.7.6 Having applied its mind to this request, the Commission considered this question and found that it was not the best placed institution, having regard to its statutory mandate, to make an assessment of this defence as it did not fall within the Commission’s mandate to do so.

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13 Findings

13.1 Having considered all the facts relating to this matter, and the law applicable to the same, the Commission comes to the following findings:

13.1.1 With respect to the question whether the Respondent communicated words regarding foreign nationals that amounted to hate speech within the meaning set out in Section 10(1) (a), the Commission finds that the words uttered by the Respondent on the 15 March 2015 could reasonably be construed to demonstrate a clear intention to be hurtful in that he made a public call for foreigners to be expelled from the country.

13.1.2 With respect to the question whether the Respondent communicated words of and regarding foreign nationals that amounted to hate speech within the meaning set out in Section 10 (1) (b), the Commission does not find that the words uttered by the Respondent on the 15 March 2015 could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm.

13.1.3 With respect to the question whether the Respondent communicated words of and regarding foreign nationals that amounted to hate speech within the meaning set out in Section 10 (1) (c), the Commission does not find that the words uttered by

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the Respondent on the 15 March 2015 could reasonably be construed to demonstrate a clear intention to promote or propagate hatred against foreign nationals.

13.1.4 With respect to the question whether the violent attacks on foreign nationals that ensued following the communication of words of and regarding foreign nationals, the Commission finds that upon consideration of the facts of this matter, the Commission did not find any evidence that creates a causal link can reasonably be drawn between the utterances of the Respondent on 15 March, 2015 in Pongola and the violent attacks on foreign nationals in Isipingo and adjacent areas on 30 and 31 March, 2015,in that the initial cause of the violence was alleged to have been labour-related dispute and strike action was jointly initiated by employees of Jeena’s Supermarket and SANCO. Criminals and vigilantes took advantage of the situation.

13.1.5 With respect to the defence of the Respondent that the media were responsible for attributing a language translation and a construction of meaning to the utterances of the Respondent that had the effect of inciting right-thinking members of the public to construe the Respondent’s words as bearing a clear intention to be hurtful and/or harmful and/or inciting harm and/or promoting and propagating hatred against foreign nationals, the Commission finds that this question does not fall squarely within the jurisdiction

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of the Commission and is best referred to a more appropriate body for investigation and determination.

13.1.6 In the opinion of the Commission, whilst this question does not fall within the mandate of the Commission to resolve, the determination of this question is a nonetheless a critical one.

14 Recommendations

14.1 In making the recommendations that follow, the Commission had regard to the nature of the remedies sought by the Complainants in this matter. The following table sets out the range of relief sought by the Complainants in their letters of complaint.

Remedy sought	Number of complainants
Apology/retraction	3
Litigation	1
Not specified	27