- The government acknowledges that misinformation about migration, asylum applications and the Constitutional Court judgment is often spreading before official responses can catch up.
- The government says it will rely on proactive communication while existing mechanisms remain available for complaints about broadcasters and other sources of information.
- The IMC says misinformation has also obscured the distinction between decisions of the judiciary and those taken by the executive.
The government has acknowledged that misinformation about migration and asylum applications often spreads faster than official responses, creating confusion about the Constitutional Court, government policy, and the country’s refugee system.
Justice and Constitutional Development Minister, Mmamoloko Kubayi, in her capacity as chairperson of the Inter-Ministerial Committee on Migration, said the government needed to do more than simply react when false or misleading claims had already gained traction.
Minister in the Presidency Khumbudzo Ntshavheni also participated in the media briefing, which dealt with the Constitutional Court judgment concerning asylum applications and the wider management of migration.
Kubayi said the government respected the judgment and understood that it was binding, but was concerned about what it regarded as unintended consequences and operational difficulties arising from its implementation.
Government admits it has been reacting to misinformation
Kubayi was asked why government appeared to be continually responding to misinformation rather than getting ahead of it. She said the answer was for government to become a more proactive source of information by providing the public with accurate explanations before false claims could dominate the discussion.
She said the IMC was trying to do this through regular media briefings, providing answers to questions raised by the media and making officials available when organisations or individuals requested meetings. The government wanted to provide the necessary information directly rather than leave the public to rely on claims circulating through other platforms.
Kubayi referred to the government’s experience during the COVID-19 pandemic, when information regarded as false was publicly identified and corrected. She said the same principle could be applied to migration-related claims, with the government responding when it identified information that was inaccurate and clearly identifying it as such so that the correction could circulate.
Government says social media should remain open
Kubayi said South Africa had previously taken a deliberate decision not to restrict social-media platforms, contrasting this with countries that had chosen to impose restrictions on communication platforms. She said the issue raised a broader question for South Africans about whether keeping those platforms open was ultimately helping the country or damaging it, particularly where false information could spread rapidly.
The minister did not propose a new restriction on social media but said the country needed to have an honest discussion about the consequences of its approach. In the meantime, the government’s position was that it should provide information, answer questions and make itself available to those seeking clarity on matters of public importance.
Broadcasters can be challenged through existing mechanisms
The government also explained that members of the public have mechanisms available to challenge information they believe to be false when it is broadcast through regulated platforms. Kubayi said complaints could be lodged with the Broadcasting Complaints Commission of South Africa against broadcasters accused of spreading misinformation, while complaints concerning the public broadcaster could be directed through the appropriate internal mechanisms.
She stressed that government could not simply instruct an independent broadcaster on what to broadcast because not every broadcaster is a state broadcaster or under the direction of government. Where a broadcaster is alleged to have breached the applicable standards, the established complaints and regulatory processes provide a route for the matter to be considered.
Government says the asylum ruling was not its decision
A significant part of the confusion, according to Kubayi, concerns the portrayal of the Constitutional Court judgment as though it were a decision taken by government. She said this was incorrect and used the briefing to explain the separation of powers, pointing out that Parliament is responsible for legislation, the executive is responsible for governing and implementing policy, and the judiciary is responsible for adjudicating disputes.
Kubayi said the three arms of state are independent and must exercise their responsibilities separately, while remaining subject to the Constitution. The Constitutional Court is the apex court in the judicial system, and its judgments are binding on organs of state, meaning government cannot simply disregard a judgment because it has consequences that the executive finds difficult to manage.
The government therefore said it was not rejecting the judgment but was examining the consequences and seeking legal advice on what options were available within the constitutional framework. Kubayi said government needed to be guided by the law rather than responding to public pressure without first establishing what action would be legally permissible.
Home Affairs withdrew its directives
The confusion was further complicated by directives issued by Home Affairs to refugee reception centres following the judgment. Kubayi said the department had withdrawn those directives after problems arose from misunderstandings about their implementation, and the government was now considering the appropriate way forward.
The IMC said the judgment had to be understood alongside the government’s constitutional responsibilities and the practical operation of the asylum system. It was also considering other litigation in which, according to the committee, different courts had produced conflicting outcomes on aspects of the migration regime.
Asylum queues form part of the wider debate
Kubayi said the large numbers of people appearing at refugee reception centres also needed to be understood in the context of the government’s responsibility to establish who was lawfully entitled to remain in South Africa. She said the situation presented Home Affairs with an opportunity to determine which applicants genuinely qualified for asylum and which people had no lawful basis for remaining in the country.
She warned people who knew they did not qualify for asylum not to apply simply to remain in South Africa. The government said there was no category of an “economic refugee” and that refugee status was governed by South African law as well as applicable international obligations, including the requirements for people seeking protection because of persecution or other circumstances recognised by refugee law.
Kubayi said people who did not qualify for asylum or another lawful basis for remaining in South Africa would be dealt with under the applicable legal processes. She also warned that attempts to obtain refugee status fraudulently would not be tolerated.
Fraudulent refugee status being revoked
The government linked this issue to investigations into corruption within the immigration and refugee system. Kubayi said the Special Investigating Unit had already investigated corruption involving Home Affairs and that there had been a request to extend the SIU’s proclamation to cover the immigration and refugee systems.
Home Affairs has begun cancelling or revoking asylum-seeker and refugee status that was allegedly obtained fraudulently, with cases being processed in batches as individual matters are assessed. Kubayi said the department would eventually provide a tally of the revocations once the process had progressed sufficiently.
She said she had supported and recommended that President Cyril Ramaphosa extend the SIU proclamation to cover the asylum-seeker system. The government regards this as part of the broader effort to identify abuse and corruption while determining who is lawfully entitled to remain in the country.
Government rejects claim South Africa is uniquely xenophobic
The IMC also rejected suggestions that South Africa is uniquely xenophobic or Afrophobic. The government referred to the African Commission on Human and Peoples’ Rights and its recognition of South Africa’s comprehensive constitutional and legislative framework protecting human and peoples’ rights.
The government said South Africa was not the only country to experience incidents of xenophobia or Afrophobia and maintained that the country remained governed by the rule of law. It said migration had to be managed in a fair, lawful and orderly manner while government continued to protect national interests, maintain public order and strengthen border security.
IMC calls for rejection of misinformation and incitement
Kubayi said government recognised that misinformation could have serious consequences when it concerned sensitive issues such as migration, asylum applications and the operation of the courts. She said the response should be based on providing accurate information, explaining government action and ensuring that the public understood which institution had taken a particular decision.
The IMC called on South Africans to stand together in defence of constitutional democracy and social cohesion while rejecting misinformation, disinformation and incitement to public violence. The committee said it would continue its work and hold its regular meeting the following week, followed by a meeting to assess progress on implementation of its five-point plan.
The IMC said its work includes immediate, medium-term and long-term measures and will continue until the objectives assigned to it by Ramaphosa have been achieved.
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