Authored By: Freda Mashiloane
The university of South Africa Unisa
Introduction
South Africa is experiencing a lot of tension following a deadline imposed by informal political and citizen groups demanding for the departure of all undocumented non nationals . This action resulted to violence , property destruction, displacement highlight of whether the South African laws are being followed rightfully in this regard . Immediately following the 1994 democratic elections, SouthAfrica experienced a significant rise in the number of illegal immigrants entering thecountry. This raised important legal and Constitutional concerns regarding the immigration control and the governments responsibility for managing the country’s borders effectively.
South Africa became a safe place for many illegal immigrants , as there were ongoingwars in their countries. Many of the Africans migrated to South Africa illegally because of the new freedom for black people was established in South Africa. Xenophobic sentiment is primarily driven by systemic poverty, the high unemployment rate and the deep seated inequality drive competition for limited informal sector jobs, housing , and public health care.
Legal framework
The legal framework regarding the xenophobic attacks in South Africa comprises a combination of Constitutional rights, domestic legislation, and international obligations. There is no specific ‘XENOPHOBIA’ crime . These attacks are all prosecuted under general criminal law and civil rights statutes. The Constitution guarantees fundamental rights equally , and dignity for all regardless of nationally.
Xenophobia in South Africa violates several fundamental rights guaranteed by the South African Constitution and the African Charter on Human and Peoples Rights. The following rights are being violated ; right to life and security , the right to equality and dignity , basic right to education , the right to healthcare services, andthe right to freedom of movement and residence. The state also risks violating the principle of non-refoulement , which prohibits returning asylum seekers and refugees to places where they may face persecution..
The Constitution Of South Africa
Case Law Analysis
The South African courts address xenophobia using the Constitution , the Promotionof Equality and International law . Xenophobia in South Africa remains a severe crisis , characterized by a recent surge in a anti- migrant protests , violent vigilante attacks, and forced displacements. Tensions peaked around the entire country leading to fatalities, widespread looting of migrant owned businesses and the displacement of thousand of foreign nationals. The people of South Africa took matters into their ownhands and took to the streets to march. The government and President are totally against this ongoing protests, but the people it still continue on daily basis with their marches. Citizen led groups are demanding that all undocumented foreigners to leavethe country.
The courts and Human Rights groups are increasingly intervening to curb vigilante actions and to protect the migrant rights.
Relevant cases to this matter are;
– Kopanong Africa Against Xenophobia and Other Operation Dudula and Others (2025).
In this case the High Court of Johannesburg found that Operation Dudula and its leadership guilty of imitation, harassment, and inciting hate speech , banning themfrom demanding identity documents or taking the law into their own hands.
– Healthcare Access Litigation’s ; Organizations like the Treatment Action Campaignhave taken action against groups obstructing access to healthcare for foreign nationals. Xenophobia is deteriorating socioeconomic conditions and the high rate of unemployment has fueled movements targeting both documented and undocumentedAfrican and Asian migrants. These protests are causing a negative impact on the South African economy.
Critical evaluation
Thousands of refugees , migrant workers , and foreign national business face targetedharassment, violence, eviction , looting , and threatening their fundamental humanrights and safety. These attacks damage South Africa’s diplomatic standing and undermine its historical aspirations for Pan African-ism regional integration , and theAfrican unity.
The South African law should prioritize in taking care of the immigrant nationals. This matter needs to be addressed directly and the implementation of hate speechand crime should be looked at . The South African government must try to get get tothe root of all the issues in order to fix things such as poverty and poor service delivery to its citizens . The people of South Africa are struggling to make ends meet on a daily basis. They are feeling threatened when foreign nationals are operating their businesses around the country and the most disappointing thing about SouthAfrica is that illegal migrants work for very low wages due to the fact that they are illegal in this county.
Conclusion
Violence directed to foreign nationals in contemporary South Africa should be evaluated. The claim that foreign nationals do no belong in South Africa ,that theyare taking what rightfully belongs to others, and that their presence constitutes a threat to the legitimate community is structurally analogous to the apartheid era claimthat Black South Africans were alien to the spaces which they were forcefully removed. The South African High Court ruled that only the South African Police Service andthe Department of Affairs immigration officials can legally request to inspect someones immigration documents, and only when there’s a reasonable suspicion.
Immigration Act no 13 of 2002 states that documented migrants with valid temporaryor permanent residence permits are protected by South African Labor Laws. Asylumseekers and refugees , Section 27 of the Refugee Act guarantees fundamental protections which includes the access to the public healthcare, basic education, the right to work or seek employment anywhere in South Africa legally.
Reference and bibliography
Primary legal sources
– Constitution of South Africa 1994
Legislation
– Refugee Act 130 0f 1998
-Refugee Amendment Act 11 of 2017
-Immigration Act 13 of 2002
Case law
– Dawood and Another v Minister of Home Affairs and others 2002 (3) SA939 ( CC)
– Minister of Home Affairs and Others v Scalabani centre and others 2013 SA309(CC)
– Lawyer of Human Rights and Another v Minister of Home affairs and OTHERS2017 (4) SA 112 (CC)
Secondary sources
Books
-khan F Schreier T (eds) , Refugee law in South AFRICA ( jUTA 2013) nd edition 2002
J P Masago Xenophobic violence in South Africa 2
