Twelfth Global Studies Conference

Abstract

This paper explores how colonialism and apartheid in South Africa were intensely damaging to the persons directly affected by their administration. This damage has had severe long-term repercussions on the ‘memory’ of all South Africans. More alarming is the fundamental harm these systems have caused to the nature of South Africa as a sovereign nation-state. When colonisation took hold, South Africa was a ‘basic natural state’ with an undeveloped legal system. The colonisers proceeded to ‘transplant’ laws from Europe and impose them in South Africa. Berkowitz and Weingast, respectively, argue that the ‘transplant effect’ in conjunction with the tenets of basic natural states results in states being ‘resistant to the rule of law’ often causing constitutions to be altered and rights infringed overnight. Applying Focault’s notion of ‘a history of the present’ this paper engages with the impact of colonialism and apartheid on South Africa’s compliance with refugee law. Social Darwinism created a deeply exclusionary and fragmented society. Thus, South Africa continues to operate within the binary and dichotomous construct of either ‘citizens’ or ‘thieves and enemies’. The generous refugee commitments that South Africa undertook when apartheid was subverted have given way to denial of refugee status on arbitrary grounds. Refugee law is honoured more in its breach than in its observance, illustrated, inter alia, by spectacular xenophobic violence.