Understanding the nomativity of Section 27(3) ‘the right to emergency medical treatment’ in the Constitution of South Africa

An a priori is the recognition by the collective people who take a decision to coexist and be bound by the law they create. South Africa’s painful history gave birth to one of the most progressive Constitutions in Africa. Through the adoption of the Bill of Rights in the Constitution which made it law to transition from a racially divided society to one that accords all people equal protection to health, food and shelter before the law. There is no longer alienation of one man by the other on any distinction of nationality, origin, legal status, language and disability. Therefore, the nature of Section 27(3) ‘no one may be refused emergency medical treatment’ is thus an a priori, by a collective people who have declared it fundamentally inalienable and cannot be denied from one man to another on any circumstance. Hence, Arendt’s right to have rights is a means by which different nationalities and cultures can coexist in a legally defined space or country. Beyond the traditional demarcations between a citizen and temporary foreign resident’s entitlement to socioeconomic rights. Rendering the two distinct groups of nationals and non-nationals in a sovereign country to be equal persons in rights entitlements and its corresponding duties.

In 1948, nations came together to pronounce the Universal Declaration of Human Rights (UDHR) stating fundamentally that the right to health should amount to an adequate standard of living for everyone and respect to the inherent dignity, equality of all members of the human family101. The years preceding 1948 had been characterized by high regard for nationalism ethos impacting on many immigrants’ highest attainable standard of physical and mental health in the foreign countries they resided102. Though major technological advances marked the same period never seen before, also affected the political landscape on the nature of a nation and state. All races and nationalities including black Africans were slowly discovering the sameness of their human ancestry wherever races interacted more and more in the globalizing world103. Thus, it soon became clear that all men are equal in attributes and have an equal right to enjoy the best attainable state of physical and mental health104. In one universally superfluous family of all nations where all man, all women, all children and all disabled persons coexist105. Hence any prima facie retrogressive measures taken against migrant’s well-being by a member state to the African Union106 preventing access to quality treatment and care, robes humanity of its general well-being daily107.

Without any knowledge on how to look for a legal remedy, many migrants continue to lose their lives at an alarming rate in African cities. Hence, states as political organisations in nature have declared willingness to save the lives of all refugees and migrants apart from morally extending humanitarian assistance108. In enforcing affirmative actions in the protection of migrants against xenophobia and social exclusion in the access to healthcare services and facilities109. Ostensibly Africa states have long honored the rules of the African Commission which allow for migrants, refugees and citizens to exercise a legal recourse against any member state which violates their economic, social and cultural rights under the African Charter and have been made law under national legal systems110. Moreover, the African Commission on Human and Peoples’ Rights preamble for the enforcement and monitoring of the African Charter, declares that:

“the enjoyment of economic, social and cultural rights is not only imperative for but dependent on the enjoyment of civil and political rights, and in particular on the rule of law, democracy and good governance. In restoring the dignity of individuals and vulnerable groups whose lives are under threat through equal access to enforceable administrative and judicial remedies for any violation of these rights”111.

Therefore, in South Africa the obligation to provide for emergency medical treatment to every person in the country is law, entrenched in the 1996 Constitution Section 27(3), the right to emergency medical treatment)112. However, the right to emergency medical treatment is a component within the broad international definition of ‘the right to health’ defined as a composite with determinants which include nutrition and housing; healthy occupational and environmental conditions; and access to health-related education and information, including on sexual and reproductive health113. Hence all health services delivery is provided through a national health system which encompasses both the public and private health service providers in South Africa114. To everyone residing in the country115 regardless of a person’s legal status, nationality and citizenship116.

The a priori nature of Section 27(3) no one maybe refused emergency medical treatment invokes legislations which outline the administrative legal processes required for the realization of the right at national, provincial and local government level. The Constitution of South Africa thus defines local government system as inclusive of all individual municipalities in the country that equally share the obligation and mandate to carry out the promotion of a safe and healthy environment of their locale community’s117. The mandate further obliges the local government in South Africa to be inconspicuous in making sure they employ a democratic system of governance to enable effective community participation and representation of all privileged and less privileged residents118. It must therefore be noted that the Constitution only makes a distinction between a natural person and juristic person or individuals and institutions specifically in the interpretation of the Bill of Rights119. Placing no limitation to anyone seeking self determination to a just administrative action in securing better standards of wellbeing for themselves120.

Although, the constitutional definition of a citizen limits foreign nationals from engaging in political action to vote121. However, in promoting universal self-determination to every person, a national common voters roll is one of the founding values of the Republic of South Africa122. An a priori principle entitling everyone to the right to peacefully partake in political action activities like assembly, demonstration, picketing and petitioning against any public authority and private company123. Therefore, permanent and temporary residents who are direct and indirect ratepayers at municipal level have an equal voice on how the administration of municipal services should be rendered because both persons form a body of the local community124. Including all migrant workers and the members of their families at the local communities in which they are resident125.

Cities are regular receivers of international and internal mass migration influx though in developing countries of Africa migrant populations are often uncontrolled and tend to affect municipal service delivery administration, budgeting and planning. Particularly in the provision of emergency medical services which are constantly on high demand. Although migrant presence is a huge administrative challenge, a municipality is obliged to take reasonable measures to ensure that there is access to continual emergency medical treatment and care to all residents126. More so the affected municipality must always be conscious of its population changes in demography and to make necessary administrative and financial resource adjustments127. To also demarcate its geographic area into small regions for effective administration of municipal services128. Including the exercise of a municipal legislative prerogative to seek for additional financial support and administrative capacity from the national and provincial government in instances requiring coordinated efforts by all government organs129.

Corporative governance within government organs and private health establishments’ engagement is an institutional obligation to administratively provide for emergency medical services to the general public130. Though the municipality has an unequivocal constitutional objective to also engage with all its residents and different interest groups including migrants and refugees in the planning processes undertaken by the city to also consider their contributions for the well-being of the city is realized131. The African Commission has declared that any refusal of emergency medical treatment against any person including migrant patients is a gross human right violation and the affected patients have the right to pursue a legal remedy already available in the local courts in which the incident occurred132. Hence all persons affected are equal litigants by definition under the Constitution of South Africa as both natural persons and juristic persons before the law133.

The definition of a juristic person was only written in philosophical terms because the institutions were not as sophisticated as we see them today. It was referred to as such because natural persons when they become members of an institution or corporate structure, they do not lose their rights or legal protection but the institution itself assumes a personality and the same rights held by a natural person. Hence a nation’s borders are contractually designed to protect the corporate through immigration and border control. The state equally is a corporate body with a supreme constitution that contractually determines everything. Thus, migrants when they can cross the borders legally, they agree to be co-opted into a different corporate structure from the one they originated from. They become part of ‘everyone’ by Constitutional law definition and are thus entitled to emergency medical treatment134.

The law in South Africa since 1957 still defines the term ‘person’ as being inclusive of any body of persons corporate or unincorporated, legal and illegal and any type of company, municipality and traditional authority135. Hence the definition even in apartheid law did recognize the legal personality of seasonal illegal and undocumented migrant labour including stateless persons as equal persons under the law. Only bona fide legal regulations were enforced to limit the pouring of black African immigration to South Africa. Many moved because colonization had stripped the black African in the late 19th century of their fundamental economic fabric that was largely based on pastoral living, livestock and land, degenerating them to a dependency syndrome in a relationship of a master and servant. The independence of 1994 ensured that such unequal societal structure be replaced by a more prudent definition of a ‘person’ as both referring to an individual and institution entitled to the same rights in the Bill of Rights136.

Rendering everyone equal before law and in legal protection against any state discrimination on the grounds of race, gender, pregnancy, age, disability, language, birth, ethnic or social origin community composition in South Africa137. Even against the perpetration of mass deportation measures in a bid to frustrate, manage and control access of public healthcare services aimed at non-nationals138. As this affects mostly refugees who are already protected by law to equally enjoy all socio-economic rights benefits with South African citizens139. Notwithstanding legal and illegal migrants though not protected by any legislation, they too are equally entitled to claim their constitutional right to emergency medical treatment no matter the prevailing circumstances140. Moreover, migrants as temporary residents have a legal right to participate fully in municipal Integrated Development Planning processes together with political figures and structures within the municipal administration and with traditional authority leaders as equal participants141.

Therefore, the Health Act consistent with the dictates of the Constitution, has determined that access to emergency medical treatment cannot be refused to a person by any healthcare provider and health worker in both private and public hospitals and clinics142. That operate within the confines of a metropolitan municipal boundary which is a de facto national health district143.Designated to provide its local communities with municipal health services144. Consisting of Emergency Medical Services (EMS) which include emergency medical care; patient referrals and continued care between health establishments during ambulance transportation of the ill and injured in an emergency care situation.

Offences that occur in EMS are often minute to detect as they happen spontaneously. They take the form of delaying medical treatment when patients are queuing, during ambulance transportation and use of abusive language or deliberate communication breakdown. Migrant patients often choose to reserve their complaints against a responsible health personnel and health establishment because of their illegality and fear of arrest. Hence the Health Professions Act of 1974 regulations entitles migrant patients with right to exercise a legal recourse against any health personnel and institutions alleged of unprofessional conduct. Moreover, migrant patients can lodge all minor complaints to an ombudsman for mediation, who equally has the authority to make a binding decision on the matter between the patient complainant and the respondent145.

However, if the matter cannot be resolved by mediation, the matter is referred to the office of the registrar, an overseer of all health professions and institutions available in every local municipality to make a substantive decision on the offence146. Guided by the established procedures on minor transgressions which include disgraceful unprofessional conduct, the guilty professionally registered person and establishment. Hence all guilty persons and establishments are procedurally liable to a warning; temporary suspension; deregistration and termination of practicing license and to pay for all the costs incurred during the court proceedings including the complainant’s legal fees147. However, no matter how small an offence, EMS transgressions are considered an essential health service that cannot be denied under any circumstance and carry with them a penalty upon conviction amounting to a minimum five-year imprisonment and a monetary fine148.

In a prejudiced community of migrant residents being systematically denied medical treatment and care in municipal clinics and public hospitals. Migrants in South African law are entitled to seek due process against their local municipality’s inability to satisfactorily address their access to emergency medical treatment challenges149. To lay complaints against any forms of negligence, incompetence and covert corruption practice by a political structure or political office bearer within municipal administration in their locality who fails to address why they are prevented from accessing certain municipal services150. Through a written complaint against any municipal employee responsible for EMS in public hospitals and clinics including any private health establishment and its health personnel who ‘abuses, obstructs and prevents access of emergency medical services personnel to a patient in an emergency medical care situation’151.

Immigration and the right to Emergency Medical Services

Albeit, the influence of apartheid South Africa on immigration treated black Africans as nomadic migrants with no opportunity to legal permanent settlement152. The inhumane restrictions limiting black migrant Africans from exercising their freedom of movement transpired during a turbulent colonial era in Africa. However, the circumstances then a major legal education characteristic still vividly used is the ad-hoc issuance of exemption permits and visas that offer minimum legal protection for migrants153. In a liberated Africa, black immigrants from Zimbabwe have continued to possess a legal status issued on similar grounds under Section 31(2) of the Immigration Act of 2002 exemption permit, the Zimbabwe Special Permit (ZSP)154. Which allows for en masse legalization of illegally present immigrants to obtain work permit visas and to enjoy full legal protection, including the Bill of Rights in the Constitution of South Africa155. To help control and manage the movement of labour which has continued to flow relative to the increase in economic opportunities in South Africa and the subsequent economic growth contraction in the Southern African Development Community (SADC) in modern times.

The condition of migrant’s wellbeing has hardly shifted for the better but remains the same since apartheid times. The legality nature of the ZSP, has an undertone discretionary disclaimer which does not specify how long the period of accessing Section 27 socio economic rights will last156. As it is an exemption rule permit allowing for temporary legality to a category of undesirable persons157. It has been renewed twice, with each period valid for four years, amounting to an eight-year period which is less than the ten years required for one to acquire a permanent residence permit and formally enter the citizenship acquisition process158. Therefore, the nostalgia is that many deserving hard working Zimbabweans subsisting in a temporary legal status, will forever enjoy minimal legal protection159. Thus, the ZSP is only pro-bono, systemically delaying migrant’s pathway to citizenship acquisition process160. Infringing on migrant’s access to emergency medical treatment, their right to human dignity, environment and freedom of association with nationals161.

In the schism of immigration mayhem many lives are lost each day from mental anxiety and poor physical wellbeing162. Who are mostly breadwinners in their families and it equally robes society of its children163. This cumbersome citizenship acquisition process disaggregates minor children’s right to enjoy the best attainable state of physical and mental wellbeing as they are dependent on their parents for all their medical and primary healthcare needs164. Hence on the 16th of June 1995 South Africa ratified the Convention on the Rights of the Child thereby assuming an earnest responsibility to ensure that no child is deprived access to healthcare services under any circumstances165. Also, the African Committee on the Rights and Welfare of the Child made an observation of the Republic of Kenya’s treatment of migrant children of Nubian descent and recommended that to deny health services to migrant children is a violation of article 14 in the African Children’s Charter by stating that:

The affected children had less access to health services than comparable communities who were not comprised of children of Nubian descent. There is de facto inequality in their access to available healthcare resources, and this can be attributed in practice to their lack of confirmed status as nationals of the Republic of Kenya. Their communities have been provided with fewer facilities and a disproportionately lower share of available resources as their claims to permanence in the country have resulted in healthcare services in the communities in which they live being systematically overlooked over an extended period of time. Their health needs have not been effectively recognised and adequately provided for, even in the context of the resources available for the fulfilment of this right”166.

This is an administrative violation perpetrated by the state against legal and illegal immigrants167. To deny any legal protection to migrant workers based on their temporary and seasonal labour as not necessarily in need of state protection168. But no law arises in the way of state engineered xenophobia and community vigilantism in a bid sanction and regulate the administration of emergency medical services to everybody resident in South Africa. Hence, the preamble of the Health Act puts an emphasis on all modus operandi initiatives to take heed in recognising “the need to heal the divisions of the past and to establish a society based on democratic values, social justice and fundamental human rights”169.

Citizens must be educated in the understanding that South Africa is obliged to protect and fulfill its Constitutional obligations and rights to all people, independent of their citizenship, national origin and legal status170. Health facilities and services must be made physically accessible and affordable, without any discrimination in the realization and fulfillment of the right to health171. Any determination on the eligibility to public benefits, does not hinge on one category of persons, but to all persons. As such, the Health Act recognises that “a healthcare provider, health worker and health establishment may not refuse or prevent a person from accessing emergency medical treatment”172.

Moreover, an obscure question lingers on how migrant’s constitutional rights can be accessed through participation in the medical aid schemes in South Africa173. The current view is laden with intolerance towards involving migrants and refugees because of their impermanence condition only requires for enhanced immigration control and enforcement operations174. Also, it promotes migrant self-sufficiency model to rely on their families and sponsors for their healthcare needs175. However, legitimate the purpose maybe by the government, health establishments and health personnel176. It is unlawful by any country and national authority to determine a person’s immigration status should instead inexorably affect their well-being177.

Therefore, the International Convention on the Elimination of All Forms of Racial Discrimination prohibits states from determining access to medical treatment and care based only on nationality178. Including gender intolerance in the preservation of a persons’ life and family wellbeing179. Such xenophobic presumptions tend to grow in scale and lead to a saliently orchestrated genocide180. The violated human rights are universal rules that are embodied in international, regional and national law which oblige states to uphold their commitment to respect, protect, promote and fulfil every person’s wellbeing is secure within and beyond a country’s borders at all times181. Also, states must stay committed to encouraging involvement and genuine participation in all decision-making processes of all affected groups directly and indirectly to reinforce community and individual security182.

When states neglect these efforts, they leave a vacuum of illegality which impacts on the huge migrant youthful population between the ages of 15 to 45 years old, full of vigor and enthusiasm for a better life. Hence the African Youth Charter entitles protection to every young person residing in any foreign country in Africa against prejudice in their right to enjoy the best attainable state of physical, mental and spiritual health183. This obligation is equally shared in the South African law which has agreed to make available equitable and timely access of medical assistance and treatment to young people184. Access to emergency health services serve as the only meaningful right entitlement that young migrant Zimbabweans must claim to prolong, preserve, and sustain their lives while in South Africa beyond any humanitarian handouts they already receive daily185. Through community-based and faith-based organisations involved in healthcare and other livelihoods provision programs. To address their mental health and physical fatigue in workplaces, airborne disease infections in crowded dwellings and in systematic delay of treatment to those in poor health conditions186. Hence any self-regulation by migrant health consumers in fear of being racially abused and criminalized is an act of a forfeited rightful claim to their right to emergency medical treatment in South Africa187.

A closer introspection reveals the application of Constitutional law at local government service delivery programs is unsatisfactory. Though migrants are legally entitled to participate and be represented always in local government planning processes and community participation structures. However, there is a holistic mandate and cooperation between public and private health establishments in the administration of emergency medical services. The private sector’s role is to equally complement the local, provincial and national government’s healthcare provision and administration of emergency medical services in the various areas of the city in which they operate. The role also extends into employment environment, housing or infrastructure that is privately owned, not to adversely or exacerbate precarious living conditions for migrants.

South Africa is a corporate body, her borders as a sovereign state are contractual, and the legality status ascribed to a foreign national upon entry allows that natural person to become a legal member of the corporate and to reside wherever that individual so desires. Hence, migrants are no different in status and in legal protection to citizens, rather their presence attests to the difference in stages of growth of the nation-state, from a mere political consociate of homogenous tribes, language and ancestry to a corporate liberal body proactive in international trade and business. Therefore, the modern state is obliged to protect all international human labour within its borders from abuse and neglect of their physical health and wellbeing. By making available access to emergency medical treatment in preservation of life but to also contribute sustainably in the growth of the host country. In Judge Ngcobo’s judgement on Khosa and Others, concluded that any constitutional or legislative limitation imposed on all foreign nationals who are yet to be citizens of South Africa, such a decision is neither absolute nor permanent188.

Migrant’s continual battle with access to emergency medical treatment is forever challenged by the sovereignty of the nation-state. The following section highlights the extent to which presumptions on international migration information is present in most South African local government structures. In the manner in which they budget and plan for municipal service delivery administration. Migrants condition of temporary residence is not the same with permanent residents in the cities. This dichotomy manifests interpretation and application deficiency of gap of the people’s collective contract law (Constitution) that sanctions how its members new and old must treat one another. Hence the presence of this legal void continues to condemn many to be victims of a silently orchestrated genocide across the major cities of Africa.

When the collective people have decided to share their place of residence, they become united in self-determination for societal goodwill and in overcoming challenges they face together. In the words of Arendt, they are not united arbitrarily but to participate equally in political opinion and action. They are the demos in a corporation composed of disaggregated groups of social class, ethnicity and nationality in a democratic state. The municipality is where they begin and represent their political action and their rightful place to consume their socioeconomic Constitutional rights through municipal service delivery. The extent to which others are left out of the people’s collective which is a contractual constitution, is an absolute disenfranchisement of one group over another, an action that is against the spirit of a people before law.

Migrant’s lifestyles wherever they are, invoke incomprehension and request seeking for further clarification on why they are treated indifferently from others because they have done nothing wrong yet they are unwanted. They are prevented from accessing public healthcare centers for emergency medical treatment. Without any satisfactory explanation, as to why and how. But the recurrence is rather further dragging them away from living a normal life that is devoid of the simplest need to access emergency medical treatment for those in severe health conditions to preserve their only souls left189. However, the only composite explanation is to explore on how deprivation of treatment is experienced by migrants in the communities they are resident in and the role played by local government authorities together with the private health establishments mandated to provide all healthcare services to everyone in South Africa.

101 Unilateral Declaration of Human Rights (Universal Declaration) art 25 & preamble para1.

102 The 1966 International Covenant on Economic, Social and Cultural Rights, art 12.

103 UN Office of the High Commissioner for Human Rights (OHCHR), Fact Sheet No. 31, The Right to Health, June 2008, http://www.refworld.org/docid/48625a742.html10-11 6.

104 The 1986 African Charter on Human and Peoples Rights, art 16(1).

105 n 104 above, art 18.

106 ‘Rule 20’ of the African Commission on Human and Peoples’ Rights‘Principles and Guidelines on The Implementation of Economic, Social and Cultural Rights In The African Charter On Human And Peoples’ Rights’ (2014)

Click to access achpr_instr_guide_draft_esc_rights_eng.pdf

(accessed 18 November 2016).

107 n 103 above, 10-11.

108 New York Declaration for Refugees and Migrants, 30 August 2016, UN General Assembly A/70/L.61, http://www.refworld.org/docid/57ceb74a4.html (accessed 3 October 2016) para 10.

109 n 108 above, para 39 & 48.

110 n 106 above, rule 21.

111 n 106 above.

112 The 1996 Constitution of South Africa, Sec 27(3).

113 General Comment No. 14: The Right to the Highest Attainable Standard of Health (art 12 of the Covenant), UN Committee on Economic, Social and Cultural Rights (Committee on ESCR) para 8.

114 National Health Act 61 of 2003 (as amended) – art 2(a)(i)(ii).

115 n 112 above, Sec 27(1).

116 Immigration Act 13 of 2002 (as amended), sec 25(1).

117 n 112 above, Sec 151 & 152(1)(a)(d).

118 Local Government: Municipal Systems Act 32 of 2000 (as amended), Sec. 16 & 42 & 50 & 51(a)(c).

119 n 112 above, Sec 8(2).

120 n 112 above, Sec 33.

121 n 112 above, Sec 19.

122 n 112 above, Sec 1(d).

123 n 112 above, Sec 17.

124 n 118 above, Sec 1.

125 The 1990 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families: arts. 28; n 114 above, Sec 25(2)(g).

126 n 114 above, Sec 2(c)(ii)(iv) & 4(2)(c)(d) & 32(1).

127 n 112 above, Sec 152(2) & 153(a)(b).

128 n 118 above, Sec 53(6).

129 n 112 above, Sec 154(1).

130 National Health Act 61 of 2003-Emergency Medical Services Regulations of 2015, sec 11(1)(c)(e).

131 n 112 above, Sec 152(1)(e).

132 n 106 above, rule 22.

133 n 112 above, Sec 8(2); n 18 above, para 1.3.6.

134 Khosa and Others v Minister of Social Development and Others 2004 6 BCLR 569 (CC) para 111.

135 Interpretation Act 33 of 1957 (as amended) art 2.

136 n 112 above, Sec 8(4).

137 n 112 above, Sec 9(1)(3).

138 The 1965 International Convention on the Elimination of All Forms of Racial Discrimination, art 5(e)(iv).

139 Refugees Act 130 of 1998 (as amended) art 27(b)(g).

140 Republic of South Africa. 1997. Green Paper on International Migration. Government Gazette 383(18033). Notice 849 of 1997. Pretoria: Government Printer. http://www.gov.za/sites/www.gov.za/files/migrate_1.pdf para 3.2.2.

141 n 118 above, Sec 23-37.

142 n 114 above, sec. 5 & section 1 also defines ‘health services’ as inclusive of (a) reproductive health and emergency medical treatment, contemplated in Section 27 of the Constitution, (b) medical treatment in conditions of detention as contemplated in Section 35(20(e) of the Constitution, and in (d) as municipal health services; Licensed to be Emergency Medical Services (EMS) provider and worker which includes paramedics under Section 1 and 2(1)(a) contemplated in the National Health Act 2003 Emergency Medical Services Regulations of 2015.

143 n 114 above, Sec 29(1)(2).

144 n 114 above, Sec 32(1) & section 1 also defines ‘municipal health services’ as consisting of water quality, food control, waste management, health surveillance of premises and prevention of communicable diseases but excludes immunisations, port health and malaria control; Moreover the importance of emergency medical treatment being made accessible to all sundry qualifies it as a ‘basic municipal service’ under the Local Government Municipal Systems Act of 2000 section 1, which defines it as necessary to sustain human life, public health and safety.

145 Health Professions Act 56 of 1974, Regulations relating to the conduct of inquiries into alleged unprofessional conduct under the health professions act 1974 – Government Notice R102 in Government Gazzette 31859 of 6 February 2009, sec 3(1)(a)(4).

146 n 145 above, Sec 2 & 3(1)(b)(c).

147 n 145 above, Sec 41(1) & 42(1).

148 n 130 above, Sec 29(1)(g)(i)(ii).

149 n 118 above, Sec 5(1)(a)(i)(ii) & 55.

150 n 118 above, Sec 5(1)(b)(c)(d)(e)(f)(g).

151 n 130 above, Sec 29(1)(c)(iii)(v)(g).

152 n 140 above, para 2.2.1-2.2.2.

153 n 140 above, para

154 South Africa Government Department of Home Affairs

155 n 140 above, para 3.2.4.

156 n 134 above, para 121.

157 n 116 above, sec 31(2)(b)(ii) & 2(d).

158 n 116 above, sec 31(2)(b)(ii).

159 n 140 above, para 1.4.7(g).

160 The temporary Special Dispensation Permits or Visa regime is not an officially listed valid visa permit in the Immigration Act 13 of 2002 Sections 10,10A,10B &11 & 13-23. Rather it is based on policy determination and not law.

161 n 134 above, para 100-104.

162 n 116 above, sec 25-27.

163 n 134 above, para 119 & 122.

164 African Charter on the Rights and Welfare of the Child 1990/1999 art 14(2)(B).

165 The 1989 Convention on the Rights of the Child: art 24(1).

166 Recommendations and observations sent to the government of the Republic of Uganda by the African Committee of Experts on the Rights and Welfare of the Child on the initial implementation Report of the African Charter of the Rights and Welfare of the Child (2010) in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2013) 460, para 62.

167 UN Office of the High Commissioner for Human Rights (OHCHR) ‘The Economic, Social and Cultural Rights of Migrants in an Irregular Situation’ (2014) HR/PUB/14/1, http://www.refworld.org/docid/54479e174.html (accessed 13 September 2016) 13-14 & 135.

168 n 140 above, para 2.2.1.

169 n 114 above, preamble.

170 n 140 above, para 5.3.1.

171 General Comment No.14 para 43.

172 n 114 above, sec 2(c)(iv) & 4(2)(d) & 5.

173 n 116 above, sec 31(2)(b)(ii).

174 General Comment No.2: Implementation of Article 2 by States Parties, 2008, UN Committee Against Torture (CAT) CAT/C/GC/2, http://www.refworld.org/docid/47ac78ce2.html (accessed 1 March 2017) para 74.

175 n 134 above, para 76-77 & 123.

176 n 134 above, para 132.

177 n 140 above, para 1.3.6 & 3.2.1; n 125 above, 43(e) & 45(c).

178 The 1965 International Convention on the Elimination of All Forms of Racial Discrimination: art 5(e)(iv).

179 The 1979 Convention on the Elimination of All Forms of Discrimination against Women: arts. 11(1)(f), 12(1)(2).

180 Rules of Procedure of the African Commission on Human and Peoples’ Rights (2010) in C Heyns & M Killander (eds) Compendium of key human rights documents of the African Union (2013) 182, rule 2.

181 n 106 above, rule 4-12.

182 n 106 above, rule 20(c).

183 The 2006 African Youth Charter, art 16(1).

184 n 183 above, art 16(2)(a)(g); http://www.gov.za/south-africa-ratifies-african-union-youth-charter (accessed 1 March 15, 2017).

185 n 125 above, art 28.

186 n 116 above, sec 29(1)(a).

187 n 116 above, sec 30(1)(a); n 16 above, para 124.

188 n 134 above, para 115 & 119.

189 J Crush & G Tawodzera ‘Medical xenophobia and Zimbabwean migrant access to public health services in South Africa’ (2014) 40(4) Journal of Ethnic and Migration Studies 665.

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