Authored By: Lusanda Alicia Mpisi
University of Zululand
ABSTRACT
The article primarily examines the right to equality as enshrined in the Constitution of the Republic of South Africa, 1996. It highlights the importance of this right, emphasizing that equality is a fundamental human right central to human dignity. The central issue addressed in the article is that the right to equality should apply to everyone living within South Africa’s borders, not only to South African citizens. For example, non-citizens are often unable to open bank accounts because they lack South African identity documents. In response to this issue, the argument is that non–South African citizens should be offered alternative means of accessing services that require South African identification, in order to uphold the principle of equality.
INTRODUCTION
This article will briefly examine everyday occurrences, some of which often go unnoticed. One such incident involved a disturbing crime committed in the town where I live, driven by the belief that non-citizens do not belong in the country and are not entitled to the protection of South African laws. Around July year 2021 looting took place in Izingolweni. Although the protest was initially directed at the government, with the intention that only government-related institutions be targeted, the violence instead shifted toward businesses owned by non-citizens. These businesses suffered extensive damage, with many being destroyed rather than looted. This incident reflects a broader perception held by some South African citizens that only citizens have the right to reside in South Africa and to receive legal protection. From my perspective, even the interpretation and application of the law can contribute to reinforcing racial and social divisions among residents of South Africa.
South Africa is a democratic state whose legal system has been significantly influenced by its apartheid past. During this period, Black South Africans were subjected to severe injustices that reflected systemic inequality. Today, inequality continues to manifest across different racial groups in the country. In response to these historical and ongoing disparities, South Africa adopted the Constitution of the Republic of South Africa, 1996, with the primary objective of addressing and eliminating past injustices rooted in apartheid. Furthermore, inequality is also addressed through legislation such as the Promotion of Equality and Prevention of Unfair Discrimination Act 1 of 2000.
Addressing the inequality experienced by non-citizens in South Africa particularly the denial of access to certain services based on citizenship despite their residence in the country is crucial to upholding the right to equality and preventing discrimination against non-citizens.
This article argues that providing non-citizens with equal access to essential services is vital to achieving the right to equality and ensuring equal legal protection under South African law.
MAIN BODY: Legal framework
In This article examines Section 9 of the Constitution, which guarantees the right to equality. In particular, Section 9(1) provides that everyone is equal before the law and is entitled to equal protection and benefit of the law. Like most constitutional rights, this right may be subject to limitation under Section 36, known as the limitation clause. The Promotion of Equality and Prevention of Unfair Discrimination Act 1 of 2000 gives effect to Section 9(1) by seeking to eradicate unfair discrimination and advance equality. The Act expressly prohibits unfair discrimination on various grounds, including race, gender, sex, sexual orientation, among others. Section 9(1) provides that everyone is equal before the law and is entitled to equal protection and benefit of the law. Section 34 guarantees that any person has the right to have their dispute heard and decided by a court of law, or by another independent and impartial tribunal or forum.
JUDICIAL INTERPRETATION
A further illustration of how inequality affects non-citizens is found in Rafoneke and Others v Minister of Justice and Correctional Services and Others, a 2022 judgment of the Constitutional Court of South Africa. The case addressed whether foreign nationals are eligible for admission and enrolment as legal practitioners in South Africa. The applicants challenged section 24(2) of the Legal Practice Act 28 of 2014 on constitutional grounds, contending that it unfairly restricted admission to South African citizens and permanent residents. The Court, however, found that section 24(2) did not constitute unfair discrimination and accordingly upheld its constitutional validity.
This decision reinforces the argument that non-citizens continue to face systemic barriers, particularly where access to employment is tied to possession of a South African identity document. The Court confirmed that the Legal Practice Act explicitly requires South African citizenship or permanent residency for admission as a legal practitioner, both of which are evidenced through possession of a South African identity document. As a result, non-citizens who lack such documentation are effectively barred from certain professions and career opportunities, illustrating how statutory requirements continue to restrict access to specific occupations for non-citizens in South Africa.
In the case of Union of Refugee Women and Others v Director, Private Security Industry Regulatory Authority and Others ( CCT 39/06) [2006] ZACC 23, On 29 August, the Constitutional Court heard an application concerning the right of refugees to work in the private security industry in South Africa. The Private Security Industry Regulation Act 56 of 2001 requires security service providers to register with the Private Security Industry Regulatory Authority (PSIRA). Section 23(1)(a) of the Act limits registration to South African citizens and permanent residents. However, section 23(6) grants PSIRA a discretion to register applicants who do not meet these requirements if good cause is shown and if such registration is consistent with the purpose of the Act.
The applicants challenged section 23(1)(a) on the basis that it violated the right to equality by unfairly discriminating against refugees who are neither citizens nor permanent residents. Alternatively, they challenged PSIRA’s refusal to register them. The respondents opposed the application.
In a joint judgment, the Court held that section 23(1)(a) does not amount to unfair discrimination against refugees. The judges accepted that the purpose of the provision—namely to ensure trustworthiness and accountability in the private security industry—was legitimate. The Court found that even where refugees could demonstrate that they had no criminal record, section 23(1)(a) still lawfully excluded them from registration. While acknowledging the vulnerable position of refugees in South Africa and the country’s international law obligations under the 1951 United Nations Convention Relating to the Status of Refugees, the Court concluded that the limitation was justified.
The Court held that refugees who are able to meet the statutory requirements should not automatically be excluded from registration and that those unable to do so may apply for registration under section 23(6) by showing good cause.
CRITICAL ANALYSIS
Although the South African Constitution guarantees protection to most people, there is a clear contradiction between these constitutional principles and how the law is applied in practice. In reality, the Constitution appears to favour South African citizens who possess a South African identity document. This practice unfairly disadvantages non-citizens, as they are excluded from accessing essential services and opportunities solely because they do not hold a South African ID.
Such exclusion amounts to unfair discrimination on the grounds of race and nationality, thereby infringing the Promotion of Equality and Prevention of Unfair Discrimination Act. Furthermore, it violates section 9 of the Constitution, the equality clause, which guarantees equal protection and benefit of the law.
This inequality was confirmed in the case of Rafoneke v Minister of Justice, where it was acknowledged that non-citizens were denied access to certain professions and career opportunities due to their lack of a South African identity document. This denial constitutes unfair discrimination and reinforces the unequal treatment faced by non-citizens in South Africa.
RECENT DEVELOPMENTS
The relevant case law where there was development in laws that denied refugees access to certain services, Khosa v Minister of Home Affairs, 2004 is a landmark judgment in which the Constitutional Court affirmed the rights of refugees and permanent residents by declaring unconstitutional legislative provisions that denied them access to social services. Similarly, in Children’s Rights Centre v Minister of Home Affairs, the Children’s Rights Centre challenged policies that excluded undocumented children from attending school, successfully advocating for the implementation of measures that guarantee access to education for all children irrespective of their documentation status.
Both cases resulted in significant developments in South African law. The judgment in the first case extended access to essential healthcare services to refugees, while the second case affirmed the right of non-citizens, including undocumented individuals, to access education.
SUGGESTIONS
My Suggestions towards the inequality faced by the non citizen, since it’s evident that the main root cause of the inequality and unfair discrimination is not being in possession of south african identity document , thus I suggest that non citizens must have a temporal South African identity document, which will thus allow them to have access to all the available services and also certain professions. So the LPA must also be amended to include the holders of the temporal South African documents. The old age grant must also be given to the non citizens not only the citizens of the country, because the aim behind the old age grant must be to help those who may no longer be able to do any sort of labour in order to earn money, thus regardless of nationality or race, everyone gets old and everyone deserves the financial aid from the government.
CONCLUSION
In conclusion, this argument submits that the protection and enjoyment of rights in South Africa should not be limited solely to citizens. Rather, all individuals residing within the Republic, including non-citizens, ought to be afforded access to constitutional rights. Where formal documentation such as a South African identity document is absent, the state should provide reasonable alternative mechanisms to ensure that non-citizens are not excluded from the enjoyment of these rights. Non-citizenship should not serve as the decisive criterion in determining whether an individual is entitled to enjoy a particular right. Instead, access to rights should be assessed on the basis of objective and justifiable considerations of eligibility or merit, applied uniformly to all persons. Such an approach ensures that the determination of access to rights is grounded in fairness and equality, rather than in legal status alone.
Extending equal access to constitutional rights to non-citizens reinforces the foundational values of the South African Constitution, particularly the principle of ubuntu, which affirms that human dignity and personhood are realized through mutual recognition and humanity — umuntu ngumuntu ngabantu.
REFERENCE(S):
- S9 of the Constitution of RSA, 1996
- Chapter 2: Bill of Rights
- S9 sub section 1 of the Constitution
- S36 of the Constitution
- S34 of the Constitution
- The Constitution of RSA, 1996
- Rafoneke and others v Minister of Justice and Correctional Services and Others
- Legal Practice Act 28 of 2014
- Union of Refugee Women and others v Director, Private security industry regulatory authority and others
- Private security Industry regulation Act 56 of 2001
- Rafoneke v Minister of Justice
- Khosa v Minister of Home Affairs
- Children’s Right Centre v Minister of Home affairs
