It is not the job of the Department of Home Affairs (DHA) to identify the protesters camped outside the UN refugee agency in Pretoria.

This is according to its latest court papers submitted to the Pretoria High Court as part of litigation aimed at having the protesters removed from living on the pavements outside the agency’s office.

Two Pretoria homeowners’ associations have instituted court action to compel the relevant authorities to fulfill their statutory duties and legally remove hundreds of refugees who have erected an expansive informal settlement outside the United Nations High Commissioner for Refugees (UNHCR) offices, along the upmarket residential Waterkloof Road in Pretoria.

The sit-in protest began on 7 October 2019 and today more than 500 protesters remain camped outside the UNHCR, pleading to be relocated to a safer country – away from the xenophobic attacks they face in South Africa.

In an affidavit submitted to the high court on Thursday 7 November in the urgent application brought against the City of Tshwane and the minister of home affairs and other parties including the police and the UNHCR, the department has claimed it does not have the standing or means to carry out the relief requested of it.

“The DHA has no legal capacity nor the resources to embark on the process of identification of the unknown persons and enforce the immigration laws of the RSA,” reads the affidavit.

Read more of Daily Maverick’s coverage here.

The Brooklyn and Eastern Areas Citizens’ Association and the Waterkloof Homeowners’ Association are seeking an order directing the department to identify which protesters are legally authorised to reside or seek refuge in South Africa and to thereafter act in accordance with and enforce the immigration laws of the country.

But Siya Qoza, spokesperson of the Department of Home Affairs, told Daily Maverick: “The Department of Home Affairs can only assist in so far as its mandate allows us to. Our mandate allows us to document people and to ascertain their legal status. That is all, there is nothing else we can do beyond this.”

He added that the department will assist other departments in circumstances when it is mandated to do so.

“It is important to note that the department has met with the protesting refugees and asylum seekers. The protesters have told us that they don’t have issues which can be addressed by Home Affairs.”

“[But] we remain part of efforts coordinated by other stakeholders to find a solution. We can only assist in so far as our mandate allows us to,” Qoza said.

Commenting on the department’s stance, the Democratic Alliance narrowed in on the department’s admission that it does not have the legal resources to manage the current refugee crisis in Pretoria.

“The responsibility of managing South Africa’s borders, registering asylum seekers and relocation of undocumented immigrants remains under the purview of the [Department of Home Affairs] and the Department of International Relations and Cooperation (Dirco),” said Adrian Roos, a member of the DA Portfolio Committee on Home Affairs.

“This is a shared responsibility with the South African Police Service to ensure that law and order is maintained,” he added.

The legal action is expected to continue on Wednesday.

Since its first day in court on 5 November 2019, parties have battled back and forth as to whose statutory duty it was to do what, with Judge Natvarlal Ranchod forced to postpone proceedings on two occasions to allow the homeowners’ associations, the City of Tshwane and the department to deliberate outside of court.

The parties were unable to reach an agreement on either occasion and questions on the respective roles of the relevant authorities remain.

Interested parties, including hundreds of refugees and foreign nationals, are anticipating a final judgment to be handed down by Judge Ranchod on Wednesday 13 November.

The court action comes within weeks of the violent eviction of refugees and asylum seekers who were camped outside the Cape Town UNHCR offices in St George’s Mall in the city centre. Those refugees and asylum seekers have found temporary shelter at the Central Methodist Church. MC