THE South African government has been dragged to the country’s High Court following the deadly xenophobic attacks in recent weeks.
The Black Business Forum Zimbabwe (BBFZ) and the Zimbabwe Exiles Forum (ZEF), which represent victims drawn from several African countries, filed the application that is set to be heard on Monday in Johannesburg.
Among countries represented are Nigeria, Malawi, Zambia, Mozambique, Ethiopia, Somalia and Zimbabwe.
President Jacob Zuma and eight ministers have been cited as respondents.
The Home Affairs, Department of International Relations and Cooperation (DIRCO), National Director of Public Prosecutions, Speaker of Parliament, Police Commissioner, Minister of Police, Minister of Defence as well as Department of State Security are cited as respondents.
BBFZ and ZEF made an urgent application to seek surety that such violent actions would not be allowed to recur as well as ensuring state of emergency if ever another round of xenophobic violence occurs.
Among other a litany of demands involve that Zuma should have declared a State of Emergency in xenophobic hotspots in terms of the State of Emergency Act 64 of 1997.
The organisations demand that the President, Minister of Home Affairs, Minister of Police and DIRCO Minister jointly put in place mechanisms and structures to stop the xenophobic attacks on foreign nationals as well as protect the lives and property of all foreign nationals regardless of race.
"That the Speaker of Parliament is directed and ordered to ensure the moving of a motion, and debate on an Anti-Xenophobia law within a year of this Judgment……jointly with Parliament, that the Department of Home Affairs takes all necessary measures to prevent the violation and encroachment of the benefits held by foreign permit holders, in particular to, within a year of this order, conduct a comprehensive review of, and the setting aside of any law or regulation that may lead to an unconstitutional violation of, and prejudice to the rights of foreign nationals in South Africa, in particular, asylum seekers and refugees."
The organisers also demand that both the Police Minister and Police Commissioner investigate and arrest those implicated in the commission of xenophobic attacks.
Among figures that the organization demand probed for incitement include Zulu King, Goodwill Zwelithini, and Edward Zuma, son of the President.
"In addition to this injunction, the Minister and the Commissioner of Police are hereby ordered and directed to through the Registrar, to submit weekly reports to this Honourable Court as to progress therein.
"That the National Director of Public Prosecutions be compelled to prosecute all perpetrators of xenophobic attacks as referred to him/her by the Minister and the Commissioner of Police.
"……that all named Respondents ensure that the justiciable rights of all foreign nationals be upheld in line with the Bill of Rights, Chapter 2 of the Constitution of the Republic of South Africa," reads the court papers in possession of CAJ News Africa.
The organisations also demand that the Presidency and Government make all necessary steps, or irrevocably commit to compensate and place all persons affected of their previous status and benefit prior to the xenophobic attacks that have, or may in future occur in the Republic.
"….that the Government of the Republic of South Africa activates its full civil protection machinery by taking over the running and funding of all holding camps currently hosting displaced foreign nationals and provide such amenities and ancillary facilities that meet minimum requirements prescribed by International law.
"….that the Government of the Republic of South Africa, within 30 days, commission a deliberate national program which will, inter alia, campaign against xenophobia, cause the proper re-integration of affected foreigners into the South African communities, and the programme must subsist for the next ten years.
"….that the President of South Africa institutionalise the anti-xenophobia campaign as stated in (11) above by creating a department in the government fully charged with the responsibility to dispense the same.
The nine government Respondents have been urged to oppose this Application not later than 2 hours before the hearing of the matter, failing which the Application will be heard on an unopposed basis.
The organisations further argue that the United Nations High Commissioner for Refugees should advise the South African government to halt deportations of Zimbabweans and allow the regularisation of stay by asylum seekers in accordance with dictates of United Nations Charter and International Law.
Governments of Malawi, Zimbabwe and Mozambique repatriated some of their citizens from South Africa.
The two organisations said the deaths of foreign nationals were an "unforgivable" act of xenophobia.
"The attack on Mozambican Emmanuel Sithole in broad daylight, unprovoked, tells of the value the local xenophobic mobs in South African attach to black foreigners."
The organizations argued that Africa, in particular the Southern African states, were credited for the growth and sustenance of South African economy. South Africa’s hegemony in many African states was significant.
MTN, DSTV, Standard Bank, First National Bank, and Shoprite, for example, realised more revenue from the African states than the domestic market, BBFZ and ZEF said.
"This means that there are more black Africans who consume South African products than the entire population in South Africa. I humbly believe that in dealing with this urgent application, these are factors that the Honourable Court should also take into account," read the court papers Tafadwza Msarara of BBFZ presented.
The organizations further argued that the liberation struggle that brought South Africa its revered Constitution and majority rule was totally credited to the support it got from mainly its African allies.
"The majority of South African political leaders and political activists were hosted in Zimbabwe and indeed provided with financial, material and military support for the successful prosecution of the struggle.
These were mentioned to include Moaletsi Mbeki, Thabo Mbeki, Baleka Mbete, Hugh Masekela, Sparks Moloi, Jackson Mbali, Tsitzi Chiliza, Hlatswayo Hlatswayo, Arthur Sithole and Zuma.
"There were no xenophobic attacks against these heroes of the new South Africa. Again, I am of the humble view that taking this into account, South Africa should feel compelled to do more than pay lip service to the scourge of xenophobia that has cost livelihoods and lives of non-nationals in the Republic."
The organisations further argued that the conviction rate on xenophobia related crimes were "suspiciously very low" insisting this attributed to intimidation of complainants during trial proceeds.
"The majority of foreigners who will be complainants/witnesses and victims end up forced to withdraw the charges. This development has birthed a new spirit of impunity, that no criminal sanction follows the perpetrators of xenophobic attacks. In the circumstances, there is no other refuge except this Honourable Court."
They said it was improper that there had been lack of political will to craft and enact hate crimes legislation that outlaws acts of xenophobia.
"Suspects are, in most cases, charged of common assault and not the crime of Xenophobia despite the existence of the culpability to intentionally commit the crime. This tends to undermine the gravity and magnitude of this horrendous crime."
Comment could not be obtained from government.
It was initially reported that seven people and more than 2 000 were displaced during the latest round of attacks.
However, this past weekend, police revised the casualty figure to four saying investigations had revealed that other deaths-the fatal shooting of a Zimbabwean couple and killing of Sithole, all in Alexandra-were criminal not xenophobic acts.