Somali Association of South Africa v Limpopo Department of Economic Development, Environment and Tourism

The appellants represented Somali and Ethiopian nationals lawfully present in South Africa as refugees or asylum seekers. The individual appellants operated spaza and tuck-shops in Limpopo Province. During "Operation Hardstick", police and municipal officials closed down approximately 600 businesses operated by foreign nationals, confiscating stock and equipment. Foreign traders were told they could not operate businesses and were refused business licences and permits by municipal officials because they were not South African citizens. Some traders had their businesses closed despite holding valid temporary permits. The traders alleged they were told permits must be in their own names, but applications by foreign nationals were refused, while applications by South African landlords on their behalf were also deemed insufficient. The appellants became destitute, unable to support themselves or their families. They brought an application for declaratory relief that asylum seekers and refugees were entitled to apply for and obtain business licences.

• Whether asylum seekers and refugees have the right to apply for business or trading licences to operate spaza shops and tuck-shops
• Whether section 22 of the Constitution (which reserves freedom of trade, occupation or profession to citizens) creates a blanket prohibition against self-employment by asylum seekers and refugees
• Whether the right to dignity in section 10 of the Constitution protects asylum seekers and refugees from being rendered destitute by prohibition on self-employment
• The interpretation of section 27(f) of the Refugees Act 130 of 1998 which entitles refugees to 'seek employment'
• Whether applicable licensing legislation (Lebowa Business and Trading Undertakings Act 6 of 1977, Businesses Act 71 of 1991, and Musina Land Use Management Scheme) prohibits foreign nationals from obtaining business licences
• South Africa's obligations under international law, particularly the 1951 UN Convention Relating to the Status of Refugees and 1967 Protocol

1. The appeal was upheld. 2. The high court order was set aside and replaced with declarations that: (a) asylum seekers and refugees are entitled to (i) apply for new business or trading licences under the Lebowa Business and Trading Undertakings Act 6 of 1977 or Businesses Act 71 of 1991; (ii) apply to renew existing licences; and (iii) apply for and renew written consent to operate tuck-shops or spaza shops under the Musina Land Use Management Scheme of 2010; (b) the closure of businesses operated by refugees and asylum seekers in terms of valid permits is unlawful and invalid. 3. The second, third, fifth, sixth, seventh and eighth respondents were ordered jointly and severally to pay the appellants' costs including costs of two counsel where employed in both the high court and on appeal.

There is no blanket constitutional or legislative prohibition against asylum seekers and refugees engaging in self-employment in South Africa. Section 22 of the Constitution protects citizens' freedom to choose their occupation but does not prohibit non-citizens from seeking employment. Section 27(f) of the Refugees Act 130 of 1998, which entitles refugees to "seek employment," is not limited to wage-earning employment and extends to self-employment. Where asylum seekers and refugees have no other means of support and would be rendered destitute (facing humiliation and degradation), the constitutional right to dignity in section 10 is implicated and protects their right to earn a livelihood through self-employment such as operating spaza shops and tuck-shops. The applicable licensing legislation (Lebowa Business and Trading Undertakings Act 6 of 1977, Businesses Act 71 of 1991, and Musina Land Use Management Scheme of 2010) contains no prohibition against foreign nationals applying for business licences, and asylum seekers and refugees can satisfy identification requirements using the unique identification numbers on their permits. This interpretation accords with South Africa's international obligations under the 1951 UN Convention Relating to the Status of Refugees, particularly Article 18 concerning self-employment.

The court made several important observations beyond the strict legal holdings: (1) The court expressed concern about the manner in which respondents conducted the litigation, avoiding specific allegations of maltreatment and abuse, and the contradictory positions taken by different organs of state (LEDET expressing willingness to consider applications while other departments insisted this would be unlawful). (2) The court noted the vulnerable position of refugees who have fled persecution, violence and human rights violations, emphasizing that their plight calls for compassion rather than policies that fuel xenophobia. (3) The court observed that South Africa's history gives particular significance to the reception of refugees, as many current leaders were themselves refugees during the liberation struggle. (4) The court suggested that the authorities' frustration with the burgeoning refugee population must not blind them to constitutional and international obligations or diminish their humanity. (5) The court indicated that the answer to administrative difficulties is to facilitate and expedite applications for refugee status, not to adopt policies that effectively force destitute persons to leave the country. (6) The court left open the question of whether specific legislation could validly restrict refugees' employment in particular industries (as was upheld regarding the security industry in Union of Refugee Women), provided such restrictions are not blanket prohibitions that leave persons destitute.

This landmark judgment established that asylum seekers and refugees in South Africa have the right to apply for business licences to engage in self-employment, particularly operating spaza shops and tuck-shops. It clarified that section 22 of the Constitution does not create a blanket prohibition against self-employment by non-citizens. The case extended the dignity-based reasoning from Watchenuka (wage employment) to self-employment, holding that where asylum seekers and refugees have no other means of support and would otherwise be rendered destitute, their constitutional right to dignity protects their ability to earn a livelihood through self-employment. The judgment emphasized South Africa's obligations under international refugee law and warned against policies that fuel xenophobia or diminish the humanity of vulnerable populations. It represents an important recognition of the socio-economic rights of refugees and asylum seekers within South Africa's constitutional framework.