People in a country who have official refugee status have recourse to a travel document known as the United Nations Travel Convention document (UNTCD). They are supposed to use it instead of their passport, since the danger in traveling on the passport of their nationality is that if they are deported they may be taken back to their home country, which may in turn still have the same problems that made them leave it or place them in a risky situation there. Until last week, South Africa had never issued a UNTCD, and a moratorium was placed on issuing them by the South African Department of Home Affairs in 2009.
Two refugees in South Africa, who both have official refugee status, therefore took the Department to court. After some protracted legal procedure the outcome was that the applicants were successful and have been issued with their UNTCDs.
There are two pieces of South African legislation which provide for the issue of UNTCDs to refugees: the Regulations to the Refugees Act and the South African Passports and Travel Documents Act 4 of 1994. The contention of the applicant’s legal representative, Daven Dass, was that the moratorium effected in 2009 restricted the movement of all refugees in South Africa.
Refugees may have arrived in South Africa alone, separated from their families and with little or no substantial personal assets. They may also still have family or trade ties in their country of origin. It is therefore unreasonable to restrict their international travel and it is good that the UNTCDs have been issued.
However, the Department may have had important reasons for instituting the moratorium and those reasons may still exist. Opposing government policy in court is not a general solution because it is too casuistic (unless it involves the constitutional court) and it does not alter existing problematic legislation either. It is better to organise a forum in which this matter of the UNTCDs can be discussed with the input of all stake-holders so as to effect a more comprehensive and satisfying solution. If the Department does not agree with the legislation then perhaps the best way forward is public participation with a view to possible future amendments.