Authored By: Tsakile jubilee makondo
Unisa
I. INTRODUCTION
South Africa has long been the principal destination for cross-border migration within the Southern African Development Community, and increasingly for migrants from further afield in Africa and Asia. This reality places two constitutional commitments in permanent tension. The first is the state’s sovereign prerogative, recognised in the Immigration Act 13 of 2002 itself, to control admission to and departure from the Republic and to enforce its immigration laws effectively so as to “reduc[e] the pull factors of illegal immigration”.[1] The second is the near-universal reach of the Bill of Rights, which protects “everyone” in South Africa, a term the Constitutional Court has repeatedly confirmed extends to foreign nationals irrespective of the lawfulness of their presence.[2]
This tension is not merely academic. Over the past two decades it has produced a sustained line of Constitutional Court litigation over the detention of undocumented migrants, a decade-long legislative vacuum that the judiciary has been forced to fill by default, and, in the first half of 2026, a genuine breakdown in the rule of law in the form of civilian groups purporting to conduct their own immigration arrests. This article argues that South African law has, in principle, already resolved the sovereignty-versus-rights debate: the state may enforce its immigration laws robustly, but only through lawfully empowered officials acting within judicially defined procedural limits. What has failed is not the constitutional principle but its institutional implementation — a failure of legislative will and administrative capacity that has, in 2026, spilled over into vigilante enforcement with its own serious rule-of-law and human rights costs.
The analysis proceeds in four parts. Part II sets out the statutory framework governing irregular migration. Part III examines the Constitutional Court’s decade-long effort to constrain arbitrary administrative detention. Part IV considers the 2026 enforcement crisis and the rise of vigilante “citizen’s arrests”. Part V offers a critical assessment of the current reform trajectory and proposes a path that reconciles effective enforcement with constitutional compliance.
II. THE STATUTORY FRAMEWORK
The Immigration Act 13 of 2002 remains the principal statute governing the admission, residence, and removal of foreign nationals. It defines an “illegal foreigner” simply as a foreigner in the Republic in contravention of the Act.[3] Section 34 empowers an immigration officer to arrest and detain a person reasonably suspected of being an illegal foreigner for purposes of deportation, without the need for a warrant of arrest.[4] This administrative — rather than judicial — model of enforcement is the source of nearly all of the constitutional litigation discussed in Part III.
A separate statutory track exists for asylum seekers and refugees under the Refugees Act 130 of 1998, which gives domestic effect to South Africa’s obligations under the 1951 Refugee Convention and the 1969 OAU Refugee Convention, including the principle of non-refoulement.[5] In practice, chronic backlogs in refugee status determination mean that a significant proportion of migrants classified colloquially as “illegal” are in fact awaiting adjudication of a lawfully lodged asylum claim — a distinction frequently elided in public discourse but legally significant, since such applicants are entitled to remain in the Republic pending a final decision.
Institutionally, the Border Management Authority Act 2 of 2020 created a single agency, the Border Management Authority (BMA), to consolidate border law enforcement functions previously dispersed across the South African Police Service, the Department of Home Affairs, and the South African Revenue Service’s customs division.[6] The 2026 State of the Nation Address built on this consolidation, announcing the phased rollout of an Electronic Travel Authorisation system, redevelopment of key border posts, a Digital ID system, and — most significantly for enforcement purposes — the recruitment of 10 000 additional labour inspectors and the establishment of a dedicated immigration court to fast-track prosecutions under the Act.[7] A revised draft White Paper on international migration, published for comment in early 2026, proposes further reforms: replacing the current five-year re-entry ban on overstayers with a re-entry fine, creating an Immigration Advisory Board, and restricting immigration practice to registered practitioners, attorneys, and advocates in order to curb corruption and “fly-by-night” intermediaries.[8]
None of these reforms, however, displaces the constitutional baseline established in section 7(1) of the Constitution: the rights in the Bill of Rights belong to “everyone”, and the Constitutional Court has confirmed — most notably in the socio-economic rights context in Khosa v Minister of Social Development — that unlawful presence in the Republic does not strip a person of the dignity- and equality-based protections the Constitution affords.[9] It is against this baseline that the enforcement provisions of the Immigration Act must be tested.
III. THE CONSTITUTIONAL COURT’S DETENTION TRILOGY
The clearest illustration of the sovereignty-rights tension lies in a trio of Constitutional Court judgments spanning nearly two decades, all concerning the detention of persons suspected of being illegal foreigners pending deportation.
A. Lawyers for Human Rights I (2004)
In the first of these, the Court confronted section 34(8) of the Act, which governed the detention of persons arriving by ship who were suspected of being illegal foreigners. The applicants argued that the provision offended the rule of law by permitting detention on the unreviewable “say-so” of an immigration officer, regardless of whether that officer’s suspicion had any factual basis.[10] Rather than strike down the provision entirely, the Court adopted a narrower, rights-consistent interpretation and read into section 34(8) an express judicial-oversight safeguard: detention could not exceed thirty days without a court order, extendable by a further ninety days on reasonable grounds, and capped overall at 120 days.[11] The judgment established the enduring principle that administrative detention of migrants, however administratively convenient, cannot rest solely on an official’s unchecked discretion.
B. Lawyers for Human Rights II (2017)
Thirteen years later, the Court returned to the same structural problem, this time in respect of section 34(1)(b) and (d), which governed detention of persons already within the Republic’s borders. The applicants, again Lawyers for Human Rights, argued that the sections were unconstitutional because they permitted thirty days of detention without automatic judicial oversight, and permitted an extension of detention without the detainee being required to appear in court in person.[12] The Court agreed, declaring the impugned provisions invalid and ordering that all detainees be brought before a court within forty-eight hours, with the declaration of invalidity suspended for twenty-four months to allow Parliament to enact corrective legislation.[13]
C. Ex parte Minister of Home Affairs (2023)
Remarkably, Parliament allowed that twenty-four-month window to lapse without enacting any remedial legislation whatsoever. Rather than approach the Constitutional Court before the suspension expired, as the Court’s own precedent required, the Department of Home Affairs waited three years and then approached the High Court — a forum with no competence to vary an order of the apex court — on an ex parte basis.[14] When the matter finally reached the Constitutional Court in 2023, the Court held that it had no power to revive a suspension that had already lapsed, and instead crafted an interim regime of its own: immigration officers must apply an “interest of justice” criterion before arresting and detaining a suspected illegal foreigner, and any detainee must be brought before a court within forty-eight hours.[15] The Court’s judgment is a rare and pointed illustration of legislative and executive inertia on a politically unpopular constitutional obligation — one in which the judiciary, not Parliament, has for nearly a decade supplied the due-process architecture that the Bill of Rights requires.[16]
Read together, this trilogy demonstrates that the Constitutional Court has consistently refused to accept administrative convenience as a justification for open-ended, unreviewable detention, while equally refusing to dismantle the state’s underlying power to detain and deport. The persistent difficulty has never been one of legal principle; it has been the state’s failure — across three successive terms of Parliament — to translate a clearly articulated constitutional standard into ordinary legislation.
IV. THE 2026 ENFORCEMENT CRISIS AND THE RISE OF VIGILANTISM
The consequences of this institutional gap became acute in mid-2026. Ahead of planned nationwide anti-migration demonstrations on 30 June 2026, certain activist figures publicly argued that a Malawian national’s 2024 bail hearing — in which the State and defence had agreed that a charge under section 49(1)(a) of the Immigration Act fell within Schedule 1 of the Criminal Procedure Act — established a general right for ordinary citizens to arrest undocumented migrants.[17] Legal academics promptly rejected this reasoning: a Schedule 1 classification for bail purposes says nothing about who may lawfully effect an arrest, and unlawful presence in the Republic does not suspend a person’s constitutional protections against arbitrary arrest.[18]
The government’s response was swift and, from a doctrinal standpoint, unambiguous. The Justice Minister, the President, and provincial police leadership all publicly reiterated that immigration enforcement is the exclusive statutory preserve of the South African Police Service, the Department of Home Affairs, and immigration officers; private citizens have no power to stop, search, or demand identification or proof of nationality from any other person.[19] That such clarification was necessary at all — at the level of the Presidency — reveals how far public understanding of the legal position had drifted from the statutory and constitutional reality, and how readily a capacity-constrained enforcement system can be co-opted by extra-legal actors.
The state’s preferred, lawful alternative is a strengthening of formal enforcement channels. Sections 38 and 49 of the Immigration Act already impose criminal liability on employers of undocumented workers, reversing the ordinary evidentiary burden so that an employer must affirmatively disprove knowledge of a worker’s unlawful status.[20] The 2026 reforms — 10 000 new labour inspectors operating under an inter-ministerial agreement between Home Affairs and Employment and Labour, coordinated inspections with the BMA and SAPS, and a dedicated immigration court to accelerate prosecutions — represent an attempt to close the capacity gap through lawful, institutional means rather than through civilian self-help.[21] The critical question, addressed in Part V, is whether this capacity-building trajectory will be paired with the due-process safeguards the Constitutional Court has spent twenty years establishing, or whether it will simply produce faster, larger-scale versions of the same due-process failures.
V. CRITICAL ANALYSIS: RECONCILING ENFORCEMENT AND RIGHTS
The 2026 reform agenda is, on its own terms, a rational response to genuine administrative and fiscal pressures. A state cannot indefinitely tolerate a situation in which its own immigration officers, courts, and Parliament are simultaneously unable to agree on how long a person may be detained without judicial oversight. Consolidating border functions in the BMA, digitising travel authorisation, and increasing prosecutorial capacity through a dedicated court are, in principle, capacity-building measures consistent with — not opposed to — constitutional compliance, since under-resourced enforcement is itself a driver of the arbitrary, prolonged detentions the Constitutional Court has repeatedly condemned.
Four refinements would make this trajectory more durable. First, and most urgently, Parliament must finally enact the remedial legislation on administrative detention that the Constitutional Court ordered in 2017 and has since been forced to supply by judicial fiat; nearly a decade of inaction on a court order is difficult to characterise as anything other than a constitutional failure by the legislative branch, irrespective of the political unpopularity of the beneficiaries. Second, the proposed White Paper reforms — the re-entry fine, the Immigration Advisory Board, and the registration of immigration practitioners — should be accompanied by a sustained public information effort making unambiguous that immigration enforcement is not, and cannot become, a matter for private citizens; the events of June 2026 show how quickly a legal misunderstanding can escalate into a public order and human rights crisis.[22] Third, reducing the refugee status determination backlog would shrink, at the margins, the population that is undocumented not by choice but by administrative delay — a category that current enforcement rhetoric tends to conflate with genuinely unlawful entrants. Fourth, given the Constitutional Court’s consistent concern with the conditions and duration of detention, policy resources would be better directed toward non-custodial alternatives to detention — reporting obligations, sureties, or community-based supervision — than toward expanding detention capacity, both on cost grounds and because such measures are less constitutionally exposed.
None of this amounts to an argument for open borders. The Immigration Act’s own objects clause recognises that controlled, orderly migration serves the Republic’s economic interests, facilitating investment, skilled labour, and tourism, while efficient enforcement protects the integrity of that system.[23] The argument advanced here is narrower: that sovereignty and constitutionalism are not competing values requiring a trade-off, but complementary requirements of the same constitutional order. A state that enforces its immigration laws only through lawfully empowered officials, operating within judicially mandated limits, enforces those laws more legitimately and, in the long run, more effectively than one that tolerates a vacuum in which vigilante groups attempt to do the state’s work for it.
VI. CONCLUSION
South African law has never seriously doubted that the state may control its borders and remove persons unlawfully present within them. What it has consistently insisted upon, across three Constitutional Court judgments spanning two decades, is that this power be exercised by lawfully designated officials, subject to independent judicial oversight, and without stripping undocumented migrants of the core constitutional protections that attach to “everyone” in the Republic. The persistent failure has been institutional rather than doctrinal: a Parliament that has not legislated what the Constitutional Court ordered it to legislate, and an executive whose capacity constraints have, in 2026, created space for civilian vigilantism to masquerade as law enforcement. Closing that gap — through overdue legislation, better-resourced but rights-compliant enforcement, and unambiguous public communication about who may lawfully act — is the unfinished business of South Africa’s immigration law, and considerably more urgent than any further recalibration of the underlying constitutional principle.
BIBLIOGRAPHY (OSCOLA 4TH EDITION)
Table of Cases
Ex parte Minister of Home Affairs and Others [2023] ZACC 34; also reported as Ex parte Minister of Home Affairs; In re Lawyers for Human Rights v Minister of Home Affairs 2024 (2) SA 58 (CC)
Khosa v Minister of Social Development 2004 (6) SA 505 (CC)
Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC)
Lawyers for Human Rights v Minister of Home Affairs 2017 (5) SA 480 (CC)
Table of Legislation and International Instruments
Border Management Authority Act 2 of 2020
Constitution of the Republic of South Africa, 1996
Convention Relating to the Status of Refugees (1951) 189 UNTS 137
Immigration Act 13 of 2002
OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) 1001 UNTS 45
Refugees Act 130 of 1998, as amended by the Refugees Amendment Act 11 of 2017
Secondary Sources
Cliffe Dekker Hofmeyr, ‘Proposed amendments to South Africa’s immigration laws and policies’ (19 January 2026)
Cliffe Dekker Hofmeyr, ‘South Africa’s immigration policy outlook for 2026’ (16 February 2026)
Refworld, ‘Case Summary: Ex parte Minister of Home Affairs and Others [2023] ZACC 34’ (Refworld, 2023)
Webb C, ‘Does South African law allow citizens to arrest undocumented migrants?’ Daily Maverick (28 June 2026)
[1]Immigration Act 13 of 2002, preamble and s 2(g).
[2]Constitution of the Republic of South Africa, 1996, s 7(1) read with the preamble to Chapter 2; see also Khosa v Minister of Social Development 2004 (6) SA 505 (CC), extending constitutional protection to non-citizens lawfully and unlawfully present.
[3]Immigration Act 13 of 2002, s 1 sv ‘illegal foreigner’.
[4]Immigration Act 13 of 2002, s 34.
[5]Refugees Act 130 of 1998 (as amended by the Refugees Amendment Act 11 of 2017); Convention Relating to the Status of Refugees (1951) 189 UNTS 137; OAU Convention Governing the Specific Aspects of Refugee Problems in Africa (1969) 1001 UNTS 45.
[6]Border Management Authority Act 2 of 2020, ss 3-5.
[7]Cliffe Dekker Hofmeyr, ‘South Africa’s immigration policy outlook for 2026’ (16 February 2026).
[8]Cliffe Dekker Hofmeyr, ‘Proposed amendments to South Africa’s immigration laws and policies’ (19 January 2026), discussing the revised draft White Paper on international migration.
[10]Lawyers for Human Rights v Minister of Home Affairs 2004 (4) SA 125 (CC) paras 29-32.
[11]Immigration Act 13 of 2002, s 34(8), as read-in by the Constitutional Court in Lawyers for Human Rights (n 10).
[12]Lawyers for Human Rights v Minister of Home Affairs 2017 (5) SA 480 (CC) paras 4-9.
[13]Lawyers for Human Rights v Minister of Home Affairs 2017 (5) SA 480 (CC), order paras 5-8.
[14]Ex parte Minister of Home Affairs; In re Lawyers for Human Rights v Minister of Home Affairs 2024 (2) SA 58 (CC) paras 3, 17-18.
[15]Refworld case summary, Ex parte Minister of Home Affairs and Others [2023] ZACC 34, recording the interim ‘interest of justice’ criterion and 48-hour production requirement.
[16]Ex parte Minister of Home Affairs (n 14), noting the state’s own concession that no legislation had been tabled and that the application to the wrong forum compounded the delay.
[17]K Ngcukayitobi’s public claim, discussed and rejected in C Webb, ‘Does South African law allow citizens to arrest undocumented migrants?’ Daily Maverick (28 June 2026).
[18]Daily Maverick (n 17), citing Dr Llewelyn Curlewis (University of Pretoria) and Justice Minister Mmamoloko Kubayi’s press briefing of 26 June 2026.
[19]Daily Maverick (n 17), citing President Cyril Ramaphosa’s address of 7 June 2026 and KwaZulu-Natal acting provincial commissioner Major-General Phumelele Makoba.
[20]Immigration Act 13 of 2002, ss 38(3) and 49(3); Cliffe Dekker Hofmeyr (n 8).
[21]Cliffe Dekker Hofmeyr (n 8), on the phased recruitment of 10 000 labour inspectors and the dedicated immigration court announced on 9 June 2026.
[22]Cliffe Dekker Hofmeyr (n 9), on the proposed Immigration Advisory Board and regulation of immigration practitioners.
