Children under the age of 18 who wish to enter or leave South Africa have been required to produce copies of an unabridged birth certificate since June 2015.  Members of the tourism industry argue that this requirement, which is unique to South Africa, is a barrier to entry. The industry has made numerous unsuccessful attempts to lobby politicians to remove the requirement. 

The lobbyists received some initial support from the Minister of Tourism, Derek Hanekom. However, Malusi Gigaba, Minister of Home Affairs remains determined to retain the requirement and has become more and more intransigent as time has gone on. In November 2016 the Sunday Times reported that Gigaba stated that the tourism industry should “quit whining and market South Africa”.  Satsa has clearly failed to persuade Gigaba and recently announced that it was considering going to Court to invalidate the regulation.

There is abundant evidence that the unabridged birth certificate requirement has had an adverse impact on South Africa’s tourism industry.  According to the Tourism Business Council of South Africa a total of 13 246 visitors were turned away while trying to board flights to South Africa between June 2015 and July 2016. The argument was made that the missed opportunity of hosting these tourists represents an estimated R7.51 billion (€513m) of lost revenue.

Critical observations have not only come from industry sources. In September 2015 the Quarterly Report of the South African Reserve Bank stated that the new regulation appeared to be an important factor contributing to a relative decline in tourism. According to the Reserve Bank a sizeable number of tourists are under the age of 18. “Overseas tourists are more inclined to travel together as families and, as such, could be more affected” by the regulation.

The regulation has had a negative effect on tourism, which the country can ill afford. The government’s rationale for the regulation appears to be the prevention of child trafficking. Home Affairs Director-General, Mkuseli Apleni, was reported to have told parliament’s portfolio committee on Home Affairs that “it is estimated that 30 000 minors are trafficked through RSA borders every year and 50% of these minors are under 14 years”. 

The notable organisation AfricaCheck has determined that the claim is exaggerated. In a careful article, Kate Wilkinson and Sintha Chiumia show that only 23 cases of child trafficking have been uncovered over the last five years.

The article reports that researcher Chandre Gould “found little evidence of trafficking in the sex industry in Cape Town. Only eight of the 164 women [sex workers that] she canvassed said that they had at one time been a victim of human trafficking-like practices.”  AfricaCheck concludes that “there is little tangible evidence available that human trafficking within South Africa plays a large part in the sex trade”.

What can explain the claim that 30 000 children are trafficked a year?  AfricaCheck suggests that some NGOs are responsible for ‘crying wolf’ about child trafficking in order to secure funding earmarked to deal with the issue. At the same time newspapers publish sensational claims without checking them.

AfricaCheck concludes that “the estimated number of human trafficking victims reported recently are exaggerated, and sensational. As Chandre Gould points out: “Such overestimations, while successful in capturing public attention and generating moral outrage, do not provide a sound basis for policy-making and resource allocation.”

For Satsa a central advantage of approaching the court to invalidate the regulation is that the government will be required to justify its behaviour. For the first time it will be required to put its data on the table and its decision-making will be subject to objective scrutiny.

Satsa claims that the evidence of child trafficking upon which the government has based the regulation is ‘bogus’. It appears that that there is a genuine foundation for the view that the data supporting the government’s decision is hopelessly flawed.  If that is the case, this is legally uncharted territory and it is conceivable that Satsa would persuade a court to intervene in its favour.

On the other hand, if Satsa merely illustrates that the UBC requirement is a ‘blunt instrument’ the court is unlikely to intervene to invalidate the regulation on the basis of respecting separation of powers.  Even veteran children’s activists have stated that the regulation is disproportionate. The Director of the Centre for Child Law at the University of Pretoria, Professor Ann Skelton, is reported to have said that “the new requirements are far too broad and that the inconvenience to ordinary people far outweighs the actual risk of trafficking”.  Even if the above claims are correct, that does not mean that the court will find in favour of Satsa.

It is rare for regulatory schemes to be struck down on the basis of unreasonableness outside the context of socio-economic rights litigation.  When providing basic necessities like food, water, healthcare or housing, it is well established that the government must show that its policies are reasonable. If it fails to do so, the court will intervene and require the government to change its behaviour. A famous example is the Treatment Action Campaign case where, in an era of AIDS denialism, the court ordered the government to provide testing, counselling facilities and anti-retroviral drugs to prevent mother-to-child transmission of HIV. The court also found that it was unacceptable for these services to only be available at pilot sites. They had to be rolled out comprehensively throughout the country. (This was the beginning of a programme that has almost eliminated mother-to-child transmission of HIV in South Africa.)

In the case of Grootboom, the Court held that it was unlawful for the government to run a relatively high-level RDP housing project while ignoring the plight of those in most desperate need. The Court ordered the government to alter its housing policy accordingly.

Travellers to South Africa have no rights to enter the country and are at the mercy of the country’s regulation. Unfortunately for the tourism industry, potential tourists have a unique capacity to vote with their feet.   

The courts are generally not in a position to double guess government’s policy choices. How must government weigh the risk of child trafficking against the promise of increased tourism? What effect does the unabridged birth certificate requirement play in combating child trafficking? These decisions are the prerogative of a democratically elected government.

Courts regularly point out that a citizen’s remedy for poor policy choices is at the ballot box.  Local government elections have shown that even the ANC has to be conscious of the possibility of losing support from voters.  It is thus surprising that Minister Gigaba is not prepared to think through the implications of his actions afresh.

*Satsa will take up the issue of unabridged birth certificates with the Tourism Business Council of South Africa and will urge that the matter be taken to court.