Who is a refugee?
In South Africa, pursuant to section 3 of the Refugees Act, 130 of 1998, a person qualifies for refugee if that person:
- owing to a well-founded fear of being persecuted by reason of his or her race, gender, tribe, religion, nationality, political opinion or membership of a particular social group, is outside the country of his or her nationality and is unable or unwilling to avail himself or herself of the protection of that country, or, not having a nationality and being outside the country of his or her former habitual residence is unable or, owing to such fear, unwilling to return to it, or;
- owing to external aggression, occupation, foreign domination or other events seriously disturbing public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge in another place outside his or her country of origin or nationality, or;
- is a spouse or dependent of a person contemplated in paragraph (1) or (2) above. Dependents include any unmarried dependent child or any destitute, aged or infirm member of the family of an asylum seeker or refugee.
Section 2 of the Refugees Act entrenches the international law obligation of non-refoulement and adds that no person may be compelled to return to or remain in a country where his or her life, physical safety or freedom would be threatened on account of external aggression, occupation, foreign domination or other events seriously disturbing public order in any part or the whole of that country.
The Act specifies that “social group” includes a group of persons of particular gender, sexual orientation, disability, class or caste.