Under apartheid you could be detained for 90 days without trial, under democracy you can be detained for 120 days without trial – if you’re an undocumented migrant.
Documents matter because they’re your first ticket to get you out of a place like the notorious Lindela Repatriation Centre in Krugersdorp.
Built in 1996 the centre is a holding facility to repatriate those in the country illegally.
It is meant to be an alternative to throwing undocumented migrants into prison with criminals and thugs, but for Frederik Khumbulani Ngubane, Lindela is a place of hate.
Ngubane breaks into a sardonic laugh when talking about Lindela. He ended up there for two months in 2010. “They treat you like you are worse than an animal. If you complain about anything they beat you,” he says.
Ngubane is a stateless man, he also calls himself a futureless man because without documents that prove he belongs somewhere he’s stuck in limbo and in the endless not so-merry merry-go-round of being arrested, detained and released again. Even home affairs don’t know what to do with him.
Ngubane says he was born in Newcastle, KwaZulu-Natal to a Xhosa mother and a Zulu father in 1990. When he was three years old his father died and in the months after his death he and his mother left for Kenya.
“I think my mother worked in pharmacy and she wanted to go to Kenya to find work,” he says, adding he’s hit brick walls trying to get documentation or proof that will satisfy authorities.
When he was 12 his mother died and an aunt took Ngubane with her to Uganda. When he turned 19 he set out for South Africa, slipping across borders, paying bribes or just dodging officials to make the journey south – because he had no papers.
“I wanted to find my father’s relatives, I think he had brothers and sisters,” says Ngubane.
Months later he managed to work his way down to Newcastle. His search for family turned up nothing. There he was arrested and sent off to Lindela.
“I spent two months there but I met people who had stayed in Lindela one year, 18 months, even two years,” says Ngubane.
After two months home affairs let him leave Lindela. They could not deport him as neither Kenya nor Uganda could claim him as a citizen without paperwork. He is also not considered a South African and he is not an asylum seeker or a refugee.
“Home affairs treat you with hate. They tell you things like ‘go back to your country’, or they tell me I am a Nigerian or a Zimbabwean, but I was born here,” Ngubane says.
“I know people who have been here one or two years illegally then they get South African ID because they can afford to pay someone in home affairs R12 000,” Ngubane says.
Lawyers for Human Rights (LHR) has been fighting Ngubane’s case.
In September last year the courts compelled the minister of home affairs to make a decision on Ngubane’s legal status. But there’s been no resolution and no outcome.
Liesl Muller, a lawyer with the LHR’s Refugee and Migrant Rights Programme and Statelessness Unit says: “Migrants are falling through the cracks.”
She says she has faith in the constitution and the courts but she also sees how laws meant to protect and ensure due process are strangled by bureaucracy, corruption and gaping loopholes.
Although those detained at Lindela are allowed visits from their family, no one, not even lawyers, are allowed into any areas other than consultation rooms.
“We’ve heard about beatings, about poor living conditions, especially in winter and we hear about children being housed with adults. There’s a general lack of monitoring,” Muller says.
As Ngubane’s case remains a bureaucratic nightmare, Muller says there are holes that need plugging.
She says it begins with ending corruption and bribery at home affairs and at borders; it’s about doing more so asylum seekers and refugees are processed properly, fairly and promptly at home affairs.
And in the end it is for officials to behave like professionals instead of bullies.
Us and them – the pencil test reinvented
The apartheid regime’s hated pencil test was supposed to have been laid to rest when 1994 and democracy arrived.
The odious test gave a piece of stationery in the hands of an apartheid official the authority to decide whether someone would be classified black, white or coloured. If the pencil stayed stuck in someone’s hair they were deemed black or coloured; if the pencil fell out they could pass as white.
In South Africa’s 20 years since democracy, new forms of the pencil test have reared their heads. Now the segregation, the us and them, is about who is a South African, who can lay claim to being allowed to call this place home and who is regarded as competition for scarce resources, be it for houses, jobs, customers at a spaza shop, social grants or even wives.
The absence of a tiny puckering on a bicep means you weren’t inoculated as per common South African practice.
Your accent is a dead giveaway that you’re from somewhere else. Your dress sense, the way you wear your hair and even the way you walk can make you a foreigner. Your height, skin tone and cheek bones can all be deciding factors.
And if you can’t pronounce the Zulu word for elbow properly it definitely means you come from across the border.
It may start off being tagged a foreigner, a kwerekwere and an outsider but as the xenophobic riots of May 2008 should have taught, these dividing lines all mean some people end up targets.
And in that dark month of May it meant 62 people ended up dead.