Strangers in the Constitution

Introduction

‘Ubuntu’. It is a South African phrase and constitutional value which means “I am because we are”, signifying the country’s care for humanity. Yet today, the shadows of xenophobia threaten to extinguish that very light, reminding us that a house divided against itself can never truly be home. There has been an ongoing movement by anti-immigrant groups of South Africa to remove undocumented immigrants from their country. Not only is this conduct harshly taking place, but it is resulting in violence, death, and destruction of foreign-owned businesses, amongst other things.

There is a recent “March and March” movement, rooted in deep economic anxieties and high unemployment rate, vigilante mobs launched violent, door-to-door intimidating campaigns, demanding all undocumented foreign nationals to leave the country by an arbitrary June 30, 2026 deadline.

Xenophobia in South Africa is not a new phenomenon. Since the post-apartheid era (1994) to the early 2000s, the country has encountered recurring outbreaks of violence against foreign nations, with the first attack occurring in May 2008[1]. Mostly immigrants from Zimbabwe, Nigeria, Malawi, and Mozambique were targeted, and this conduct was often and is still being justified by perceptions that they threaten economic opportunities and social stability. Difference is, recently there has been a growing and rapidly increasing number of illegal immigrants in South Africa.

This reflects a deep tension between the constitutional promise of inclusivity and the lived reality of many non-citizens, as the preamble of the Constitution of South Africa clearly states, “South Africa is for all who live in it, united in our diversity”[2] while the ongoing reality is the opposite and is in contrary to the constitution. This further reflects the lack of accountability and failure to act by the state to effectively enforce existing legal protections.

Therefore, this article will critically examine whether South Africa’s legal framework and constitution is adequate in addressing xenophobia, or whether the challenge lies in its enforcement and implementation to protect the rights of non-citizens.

Main body

Legal framework

The Constitution of the Republic of South Africa, established in 1996 is the foundational and supreme law of the country. All conduct that is inconsistent with the constitution is invalid. Xenophobia is a term derived from Greek words, xeno means ‘stranger’ or ‘foreigner’ and Phobos means ‘fear’, so basically the fear of foreigners. It is a constitutional subject and therefore governed by the constitution and the provisions directly related to it in the constitution are Section 9, the equality clause which states that everyone is equal before the law to an extent, “with respect to unfair discrimination solely on the grounds of race, color, ethnic, or social origin, sex, religion or language“[3]. Section 10, human dignity and it states that “everyone has inherent dignity and the right to have their dignity respected and protected” . Section 11, the right to life which protects the rights of every person.[4] Section 12, Freedom and security of the person to an extent that “they must not be tortured in any way”[5] and “not be treated or punished in a cruel, inhuman or degrading way”[6]. These are all fundamental human rights and Xenophobic conduct falls within these prohibited grounds as it targets individuals based on nationality or language, violating their right to life, dignity, and to freedom and security.

The legal issue is furthermore governed by legislation. The Immigration Act 13 of 2002 regulates the legal entry and residence of non-citizens and must follow procedures that are consistent with the constitution. The Refugees Act 140 of 1998, gives effect to South Africa’s obligations towards refugees, ensuring protection against persecution and prohibiting refoulment. The South African Police Service Act 68 of 1995 encourages police to investigate crime, including violent acts or infringement of fundamental human rights like xenophobic acts such as assault, arson, and public violence.

However, despite all of that, since the year 2022 till date, immigrants face challenges in South Africa. There are movements like Operation Dudula whose core mandate is to “Put South Africans First”. Operation Dudula is a recent substantial mobilization attacking black immigrants. From its debut in Soweto 2021, they have developed a notoriety for stoking xenophobic feelings and intimidating individual whom its supporters allege to be undocumented immigrants while arguing that they are cleaning up the country and creating opportunities for the youth. “This group formalized as a voluntary association that is registered as a nonprofit company. It has office bearers, social media accounts and it stages organized gatherings, attended by members wearing branded t-shirt and military style uniforms, displaying Operation Dudula banners and slogans”[7]

“Operation Dudula and its members have engaged in violent and unlawful activities across the Gauteng Province[8]” “On 6 April 2022, Operation Dudula’s then leader, Mr Nhlanhla Lux Dlamini, addressed a large crowd in Diepsloot, blaming foreigners for high crime rates and calling for those present to deal with foreign nationals. Later that evening, a mob formed and went from house to house demanding passports or money from people suspected of being foreign nationals. The mob beat, stoned, and burnt to death a Zimbabwean national. Mr Elvis Nyathi, with some bystanders laughing and recording the attack on their mobile phones”[9]

“Operation Dudula has also targeted public healthcare facilities, using threats and violence to prevent foreign nationals from accessing healthcare. In August and September 2022, Operation Dudula picketed outside the Kalafong Hospital and Hillbrow clinic, refusing access to those who they deemed to be foreign nationals. During January 2023, Operation Dudula picketed at the Jeppe Clinic, resulting in many patients being turned away, including pregnant women. As a result, at least two women were forced to give birth at home, without any proper health care[10].”

“Operation Dudula has also targeted schools, demanding the removal of non-South African teachers and undocumented learners. Operation Dudula’s conduct resulted in the permanent closure of at least one school in Jeppestown, which had about 300 learners and 40 staff. The school was forced to close after concluding that it could not guarantee the safety of its staff and learners, following threats by Operation Dudula and the intimidation of its employees.[11]”This conduct is in contrary to section 3 (6)(b) of the School Act 84 of 1996 which is against any person preventing a learner who is subject to compulsory attendance from attending a school without a valid reason.

These are a few of the many conducts at the hands of the operation, despite having legislation and law that prohibits such action. A man’s right to life was violated. Women had to give birth without proper health care, not only threatening their lives but the lives of their babies when it is clearly stated in section 27 of the constitution, “everyone has the right to have access to healthcare services, including reproductive healthcare[12]” and people lost their jobs and children lost the right to education, posing the question of whether the operation is really for the benefit of the youth when the very same youth got unemployed as a result of their actions, or is it just an unreasonable movement that threatens and violates the rights to equality, human dignity, life, education, freedom and security, housing and healthcare of not only the non-citizens but South African nationals as well.

Case Law Analysis

The anti-immigrant groups have proven themselves to be those that takes matters into their own hands. They conduct citizen raids, demand identity documents, and blockade community healthcare clinics to prevent immigrants from receiving healthcare. It highlighted in Chief Lesapo v North West Agricultural Bank and Another[13] that ‘No one is entitled to take matters into his or her own hands. Self-help, in this sense is inimical to a society in which the rule of law prevails, as envisioned by section 1 (c) of our constitution which provides, “The Republic of South Africa is one, sovereign, democratic state founded on the following values. (c) supremacy of the constitution and the rule of law”.’

In Minister of Home Affairs v Watchenuka, it was held by the Supreme Court of Appeal that denying asylum seekers the right to work or study undermines human dignity. As learners lost their education and teachers lost their jobs, their rights were violated and it was unconstitutional. The court recognized that dignity includes the ability to sustain oneself and live with autonomy. It rejected state policies that reduce non-citizens to mere survival, emphasizing that constitutional protection extends to all the people living in South Africa. This case signifies that systemic exclusion is legally unjustifiable because it strips immigrants of their dignity[14]

In the land marking case of S v Makwanyane, the Constitutional Court abolished the death penalty, holding that the rights to life and dignity are foundational and non-derogable. The court rejected punishment rooted in vengeance and emphasized that all state action must be rational and rights based, and these values are applicable to everyone and not only citizens. Xenophobic violence violates the same rights protected in this case and it establishes that even foreign nationals are entitled to constitutional protection, not only on paper but also practically regardless of public hostility[15]

It was further declared in Kopanang Africa Against Xenophobia v Operation Dudula that vigilante anti-immigrant actions are unlawful and violate constitutional rights. The Court held that only state authorities may enforce immigration law in terms of section 41 of the Immigration Act 13 of 2002; private actors have no business doing so as they have no legal standing. It also recognized that hate speech, exclusion and intimidation are against the law and ordered an interdict against the operation to refrain from doing anything that is unlawful against non-citizens. And more than anything, the government failed to implement preventive measures against xenophobia, further contributing indirectly to these incidents.[16]

Critical Evaluation

There is a profound contradiction between the legal framework of South Africa and lived realities of immigrants. The Constitution affirms fundamental rights such as equality, dignity and freedom to everyone but despite this strong jurisprudential commitment, there is perpetuity in xenophobic violence and attacks, illustrating a significant gap between legal principles and state practice.

The failure to provide practical preventive measures against xenophobia and not just law and legislation stem from historical and socio-economic conditions of the country. The legacy of apartheid has entrenched inequality, poverty, corruption, spatial marginalization, creating limited resources such as public services, jobs, and housing. Because of this, immigrants are often scapegoated as the cause of economic hardship. This then encouraged xenophobic attitudes within the community and created an environment and society where violence against foreign nationals are normalized. Therefore, the problem is not just legal but deeply rooted in socio-economic disparities that the state has failed to effectively address.

A huge challenge lies in the enforcement and implementation of existing legal protections. Even though rights are well established, state institutions frequently fail to uphold them. Law enforcement agencies like the South African Police Services are often criticized for failing to effectively intervene during attacks against immigrants or for not holding the wrongdoers accountable. Issues like corruption and delays in processing documentation within the Department of Home Affairs marginalizes immigrants and further makes them vulnerable to arrest, detention, or exploitation.

This undermines the rule of law more broadly, affecting both non-citizens and citizens. The fact that the communities and groups can carry out violent attacks, illegal evictions, or looting without consequences signals a breakdown in legal authority. This normalization of disregard for the law erodes public confidence in the justice system and weakens the principle of constitutional supremacy. More than anything, when the law is selectively applied, that ceases as the universal standard, thereby exposing citizens themselves to familiar forms of insecurity and injustice.

Moreover, the position of the President, Cyril Ramaphosa, mirrors this tension between rhetoric and action. The President has repeatedly condemned xenophobic violence and affirmed the commitment of the country to human rights and African unity[17]. However, his statements have not been met by sufficient robust policy interventions or consistent enforcement measures but the opposite. This further affects his reputation as President and significantly implicates the international reputation of the country. The country has historically positioned itself as a leader in human rights and a champion of Pan-Africanism[18]. However, these xenophobic attacks undermine that position and strain diplomatic relations with other African states, deterring foreign investment and tourism. This reputational damage presents the idea that South Africa is unable or unwilling to uphold its constitutional values.

Comparative Perspectives

The European Union

“The European Union member states are strengthening their unity, sacrificing the interests of their own citizens to assist besieged Ukraine, in the face of the ongoing war in the continental Europe, Africans’ unity is ever withering away with Africans busy killing one another in Afrophobic violence. Mirroring the absence of real and solid unity at the level of the African Union…”[19]

Canada

The jurisdiction of Canada adopted a rights-based and preventative approach to xenophobia. Ther legal framework guarantees equality and prohibits discrimination based on nationality or ethnic origin. Xenophobia attacks are addressed through criminal law with the human rights commission institution playing a central role. Canadian courts often interpret domestic rights considering international law standards developed by the United Nations, enforcing the protection on non-citizens.

Conclusion

The key finding is that South Africa does not lack law but rather a failure of implementation, coordination, and sustained political will to enforce existing protections effectively, reflecting a broader governance challenge where rights exist in principle but not fully put into practice.

At the root of this implementation, failure is a combination of structural, socio-economic, and institutional factors. High unemployment, poverty, and inequality created competition over scarce resources and fueled resentment towards foreign nationals. This is further compounded by weak border management narratives, politization of immigration issues, and inconsistent law enforcement responses that sometimes fails to separate illegal immigration concerns from unlawful xenophobic conduct. Moreover, the lack of civic education and limited community engagement contribute to the misinformation and scapegoating of immigrants.

This significantly implicates South Africa. The persistent failure to address xenophobia undermines the rule of law, damages the country’s international reputation and social cohesion. It also places the country in tension with its obligations under international human rights law and its constitutional commitment to dignity and equality for all people. If this continues, it opens the door to cycles of violence and displacement. Threatening the long-term stability and development of the country.

To strengthen the protection of non-citizens rights, South Africa should adopt a multi-layered approach. First, enforcement mechanisms must be strengthened through specialized hate crime legislation and dedicated prosecution units to hold wrong doers accountable. Second, police training in managing and dealing with xenophobic violence must be improved. Third, awareness campaigns must be expanded to promote constitutional values of equality, Ubuntu, and social cohesion, targeting misinformation about immigrants. Fourth, efficiency in immigration and refugee systems must be improved and be more transparent to reduce irregularity and administrative backlogs that fuels tension. Lastly, strict law and punishment must be implemented for anyone that disobeys the rule of law and the rights of immigrants. Together, these measures can move South Africa from a reactive to a preventive approach, ensuring the protecting of non-citizens rights in law and in practice.

Bibliography

Legislation:

The Constitution of the Republic of South Africa, 1996

The Immigration Act 13 of 2002

The Refugees Act 140 of 1998

The South African Police Service Act 68 of 1995

Case Law:

Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others (2023/044685) [2025] ZAGPJHC 1102 (4 November 2025)

Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC)

Minister of Home Affairs and Others v Watchenuka and Another [2003] ZASCA 142

S v Makwanyane 1995 (3) SA 391 (CC)

Secondary Sources:

‘Address by President Cyril Ramaphosa on Migration, Union Buildings, Tshwane’ (thepresidency.gov.za) 7 June 2026

‘Exploring the Ideology of Pan Africanism and Operation Dudula in South Africa’s Political Landscape: Youth Activism in an Era of Xenophobia’ (accord.org.za) 14 April 2026

Artwell Nhemachena, Munyaradzi Mawere, Oliver Mtapuri (Chapter Three: Operation Dudula, Xenophobic Vigilantism and Sovereignty in Twenty-First Century South Africa)

Silja Fröhlich, ‘South Africa’s recurring waves of Xenophobic Violence’ DW Global Media Forum (05/07/2026)

[1]Silja Fröhlich, ‘South Africa’s recurring waves of Xenophobic Violence’ DW Global Media Forum (05/07/2026)

[2]Constitution of The Republic of South Africa, 1996, Preamble to the Constitution

[3]Constitution of the Republic of South Africa, 1996, s 9

[4]Constitution of the Republic of South Africa, 1996, s 11

[5]Constitution of the Republic of South Africa, 1996, s 12 (1) (d)

[6]Constitution, s 12 (1) (e)

[7]Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others (2023/044685) [2025] ZAGPJHC 1102 (4 November 2025) page 17 par 26 www.saflii.org

[8]Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others (2023/044685) [2025] ZAGPJHC 1102 (4 November 2025) page 17 par 27 www.saflii.org

[9]Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others (2023/044685) [2025] ZAGPJHC 1102 (4 November 2025) page 18 par 28 www.saflii.org

[10]Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others (2023/044685) [2025] ZAGPJHC 1102 (4 November 2025) page 19 par 31 www.saflii.org

[11]Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others (2023/044685) [2025] ZAGPJHC 1102 (4 November 2025) page 19 par 32 www.saflii.org

[12]Constitution of the Republic of South Africa, 1996, section 27 (1) (a)

[13]Chief Lesapo v North West Agricultural Bank and Another 2000 (1) SA 409 (CC) para 11

[14]Minister of Home Affairs and Others v Watchenuka and Another [2003] ZASCA 142

[15]S v Makwanyane 1995 (3) SA 391 (CC)

[16]Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others (2023/044685) [2025] ZAGPJHC 1102 (4 November 2025) www.saflii.org

[17]’Address by President Cyril Ramaphosa on Migration, Union Buildings, Tshwane’ (thepresidency.gov.za) 7 June 2026

[18]’Exploring the Ideology of Pan Africanism and Operation Dudula in South Africa’s Political Landscape: Youth Activism in an Era of Xenophobia’ (accord.org.za) 14 April 2026

[19]Artwell Nhemachena, Munyaradzi Mawere, Oliver Mtapuri (Chapter Three: Operation Dudula, Xenophobic Vigilantism and Sovereignty in Twenty-First Century South Africa)