Authored By: Amahle Msomi
University of Zululand
Abstract:
Both legal and undocumented immigrants have been drawn to South Africa in recent years, entering the nation via several legal and illegal routes. Although there are advantages to this movement, it also has drawbacks. For example, some foreigners do not always comply with South African laws, and the government must contend with pressure on public services, an increase in informal labour, and inadequate border control. Many immigrants also encounter unfair treatment, discrimination, and xenophobia. This article looks at how the Republic of South Africa’s 1996 Constitution, particularly the Bill of Rights, protects everyone inside the nation’s borders, including undocumented immigrants. It contends that the Immigration Act 13 of 2002 and the Refugees Act 130 of 1998, which uphold the Constitution’s guarantee of rights to “everyone,” provide robust legal protection. To guarantee that immigrants adhere to South African laws while still enjoying their constitutional rights, the article concludes that better enforcement is required.
Introduction:
South Africa has emerged as a destination for people looking for better economic prospects, safety from conflict, or escape from challenging circumstances back home. Both undocumented immigrants, who cross borders illegally, and documented immigrants, who enter the nation lawfully with visas and permits, are welcome. This presents difficult legal and social issues regarding how to strike a balance between upholding national laws, protecting immigrant rights, managing public resources, and maintaining social stability.
Given growing worries about irregular migration, the burden on services, and sporadic xenophobic events, the topic is especially important because immigrants are still susceptible to prejudice and exploitation. This article looks at how both legal and illegal immigrants are protected by the Republic of South Africa’s 1996 Constitution, particularly the Bill of Rights, the Immigration Act 13 of 2002, and the Refugees Act 130 of 1998. It also evaluates how well these safeguards are put into practice and how enforcement might be improved.
Legal framework:
Based on both constitutional and statutory law, South Africa’s legal system offers a thorough framework for immigrant protection. Regardless of citizenship or immigration status, everyone on South Africa’s territory is guaranteed fundamental rights by the Republic of South Africa’s 1996 Constitution, which is the nation’s supreme law. The Constitution lays the groundwork for the protection of both legal and illegal immigrants by establishing the values of equality, human dignity, freedom, and fair administrative action. For example, Section 9 forbids unjust discrimination on the basis of nationality, Section 10 ensures that everyone has inherent dignity, Section 12 protects people from arbitrary detention and abuse, Section 14 protects personal privacy, Section 27 guarantees access to basic healthcare, Section 29 guarantees the right to basic education, and Section 33 mandates that administrative decisions made by government authorities are reasonable, lawful, and procedurally fair.1
The protection of refugees and asylum seekers is expressly addressed under the Refugees Act 130 of 1998. The Act puts the concept of non-refoulement into practice by prohibiting people from being sent back to nations where persecution or grave injury would endanger their freedom, life, or safety. This universal ban on extradition, return, and expulsion is enshrined in Section 2. While Section 4 identifies exclusions, such as individuals who have committed major Immigration Act violations, Section 3 explains who is eligible as a refugee2.
The Immigration Act 13 of 2002, which governs foreigners’ entry and exits from South Africa, was passed by the government. In terms of immigration control, this act guarantees that the Department that oversees the entry and exit of foreigners promotes human rights based on culture in both the government and civil society. Additionally, it guarantees that the department will facilitate and streamline the issuance of both temporary and permanent residency to those who are eligible for them, as well as that the department will deport and defect illegal foreign nationals.
The department may provide temporary residence to those who have a temporary residence permit under S10 of the Immigration Act. The department may grant a visitor’s permit to a foreign national who possesses a VISA or is a citizen of a foreign nation under S11 of the Immigration Act. S12 of the Immigration Act permits the department to grant a diplomatic permission to a foreign state’s ambassador, minister, or career diplomat who is acknowledged by the South African government.
A foreign national who plans to study in South Africa for three months may be granted a study permit by the department under S13 of the Immigration Act. In accordance with an international agreement to which South Africa is a party, the department may grant a 3treaty permit to a foreign individual engaged in activities in South Africa under S14 of the Immigration Act.
According to S15 of the Immigration Act, the department may grant a business permit to a foreign national who plans to start or invest in a business in South Africa where he or she works, or to members of the foreign national’s immediate family, provided that the foreign national invests the required financial or capital contributions in the business, a charted accountant attests to compliance with the act’s provisions, and the foreign national has committed to adhering to any applicable registration requirements outlined in any law administered by South African Revenue Services. A foreign national wishing to get medical care in the Republic may be granted a medical treatment permit under S17(1) of the immigration Act.
Thefts Section 27 describes the processes for determining refugee status, whereas Section 22 offers asylum seeker permits that give the freedom to work and access essential services. In some situations, authorities may revoke refugee status under Section 36. The removal of unlawful aliens from the country and their treatment while they are being deported or removed from the country are covered in Section 34. When taken as a whole, these documents create a dual legal framework that safeguards immigrant rights while enabling the state to control admission, residency, and legal compliance. This framework guarantees public order and border security while showcasing South Africa’s dedication to human rights, education, healthcare, privacy, and equitable administrative processes.
Judicial interpretation:
President of the Republic of South Africa and Others v. Mohamed and Another is a historic Constitutional Court decision that addresses how South African law treats foreign nationals. The case saw Khalfan Khamis Mohamed being detained by immigration authorities in Cape Town and turned over to US agents to face potentially capital charges. The Court determined that this “hand-over” was really a covert extradition that disregarded the legal protections mandated by the then-relevant Aliens Control Act and the Immigration Act 13 of 2002. Additionally, it broke the non-refoulement principle, which was eventually reflected in section 2 of the Refugees Act 130 of 1998, which forbids sending someone to a nation where they would be persecuted or suffer grave injury. The Court ruled that all people, even illegal aliens, are entitled to Mohamed’s constitutional rights, which include freedom from cruel or humiliating treatment (section 12), life (section 11), and dignity (section 10). It 4emphasized that the State cannot expel someone from South Africa without first receiving guarantees that the death sentence won’t be applied. The ruling affirms that South Africa must abide by both constitutional rights and legal obligations under the Refugees Act and Immigration Act, and that immigration procedures cannot be utilized to evade appropriate extradition procedures. The case calls for more training, accountability, and respect for human rights norms while identifying flaws in government processes and firmly defending the rights of immigrants.
Minister of Home Affairs and Others v. Lawyers for Human Rights and Others Parts of section 34 of the Immigration Act, which permitted immigration agents to detain and deport undocumented aliens, were contested in this case. The applicants claimed that the law infringed upon their rights to freedom and security of person (section 12), human dignity (section 10), and fair administrative procedure (section 33). The Constitutional Court concurred, declaring that the detention clauses were unconstitutional because they permitted incarceration without enough judicial supervision or defined boundaries. The Court emphasized that even undocumented foreigners have fundamental rights in South Africa, such as humane treatment, access to the legal system, and notification of imprisonment. The ruling demonstrated that immigration control must strike a balance between human rights and law enforcement by requiring the government to modify its detention and deportation policies to preserve constitutional rights.5
In the cases of Khosa and Others v. Minister of Social Development and Mahlaule and Another v. Minister of Social Development, the Constitutional Court examined the possibility of denying social assistance to South African permanent residents based only on their non-citizenship. The applicants were permanent residents of Mozambique who had escaped their native country’s civil strife and assimilated into South African society. The Social Assistance Act 59 of 1992, which at the time restricted such benefits to citizens only, denied them old-age, child-support, and care-dependency awards. The High Court sent the case to the Constitutional Court for confirmation after ruling that the measures were unconstitutional. The Constitutional Court affirmed that rejecting social grants because Citizenship alone constituted unfair discrimination and violated the Constitution’s Sections 9 (Equality) and 27 (Access to Social Security). The Court ruled that grants must be available to all eligible citizens, including permanent residents, and mandated that the state reimburse applicants for any arrears and future grants. This ruling is significant because it upholds the idea that permanent residents are entitled to basic social services and confirms that constitutional rights to social security extend beyond citizens. Crucially, the ruling made it clear that exclusion based only on nationality is illegal and increased human rights protections for foreigners living in South Africa.6
City of Tshwane Metropolitan Municipality and Others v. Tswelopele Non-Profit Organization, the Supreme Court of Appeal examined whether the City of Tshwane’s eviction was lawful. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE) was broken when a group of occupants, including some foreign nationals and impoverished South Africans, were evicted from a municipal site without a court order. Personal possessions and shacks were destroyed during the eviction. The court emphasized that evictions must respect constitutional rights, such as the right to appropriate housing (section 26) and human dignity (section 10) and ruled that the eviction was illegal because it did not adhere to PIE’s procedural standards. Uncertainty regarding safeguards for undocumented immigrants resulted from the court’s failure to address the unique rights of foreign nationals or the relationship between PIE, the Refugee Act, and the Immigration Act. The case highlights a lack of legal guidance about non-citizens facing eviction in South Africa, but it is noteworthy for emphasizing the significance of procedural fairness in evictions.7
Affairs Minister and Others Ashago v. Home. In accordance with section 49(1) of the Immigration Act 13 of 2002, Mr. Ashago, an Ethiopian national, was detained before the processing of his asylum claim under the Refugees Act 130 of 1998. The state contended that fresh fraud allegations warranted his prolonged incarceration despite a prior court judgment declaring his imprisonment illegal and ordering his release. The decision only related to the initial immigration charges, according to the High Court, and it did not stop prosecution for other offenses. The release enforcement application was denied. The Immigration Act’s balance between state authority and refugee rights is exemplified by this case8.
Critical Analysis:
Strong protections for immigrants, refugees, and asylum seekers are provided by South African law and the Constitution, but their practical efficacy is limited by several ambiguities and loopholes. The Refugees Act 130 of 1998 protects asylum applicants while their status is being determined, whereas the Immigration Act 13 of 2002 makes illegal entry illegal and permits detention. Authorities may become confused by these overlapping laws, which could lead to improper detention or delays in the issuance of refugee status.
Minister Nkosazana Dlamini-Zuma claimed that to increase security, South Africa needed more stringent immigration and refugee regulations since the current ones had flaws that made it possible for people to take advantage of the system. For instance, in 2007, there were more asylum seekers in South Africa than in all 27 EU nations put together, but only 5% of them were granted asylum.
The Minister suggested changes, such as a new Refugee Act that would adhere to international regulations while limiting abuse, establishing offices near borders, and enhancing systems so that various units can exchange information, so decreasing potential for exploitation. The enforcement of these improvements is inadequate.
There are more than 20 million foreigners living in South Africa, both legal and illegal. Many enter the country illegally, often by bribing officials or using connections like marrying South African natives or depending on permanent residents, even if some hold licenses. The Immigration Act’s Section 15 is meant to control admission and residency, but lax enforcement makes it possible for some people to take advantage of gaps. Some foreigners even alter their last names to marry South Africans and get citizenship or residency, exposing flaws in the system.
Through their firms, foreigners support the economy, but many of them operate unregistered, making tax collection and regulation difficult. Some South Africans rely on free public services and don’t pay taxes, while others have started their own banks. Foreigners may accept lower wages, which limits chances for locals and has an impact on employment. Since undocumented people make it more difficult for authorities to detect unlawful activity, crime rates are also a worry.
Despite these problems, everyone is affected by South Africa’s legal system, even foreigners, even when immigration restrictions are violated. This demonstrates the nation’s dedication to human rights, but it also highlights the need for more stringent enforcement, improved coordination of immigration rules, and steps to stop system exploitation.9
Recent Development:
The Immigration Amendment Bill (September 2025), which intends to fortify South Africa’s immigration enforcement system while preserving constitutional liberties, is a noteworthy recent development. By establishing precise guidelines for arrest, detention, and deportation, the Bill overcomes long-standing gaps in the Immigration Act. It also mandates that magistrates authorize and periodically review any detention of unauthorized foreign nationals. This guarantees that immigration decisions adhere to standardized standards and that individuals are not treated unfairly. Stronger protections for children are also introduced by the Bill, which stipulates that a child cannot be treated just as an illegal immigrant and must be directed to child-protection agencies. Detention is only permitted as a last resort and under court supervision. In general, the reform aims to increase accountability, rebuild public trust in the immigration system, and strike a balance between effective immigration control and human rights.10
The Department of Home Affairs briefed Parliament on Operation Vulindlela and modifications to the White Paper on Citizenship, Immigration, and Refugee Protection. The White Paper is being updated to align with legislation and government priorities, and the Bill is expected to be introduced in Parliament by 2027. Seven of the eight recommendations made by Operation Vulindlela have been completed, with the final one concentrating on automation and IT system updates. The Trusted Employer Scheme (TES) and Points-Based System (PBS) are two new initiatives designed to expedite visa applications, draw in skilled labour, and boost the economy, particularly tourism. The Department’s issues include inadequate funds, a lack of personnel, and inadequate departmental cooperation. Concerns about unsafe borders, lengthy asylum procedures, and the possibility of local workers being disregarded are also prevalent. South Africa may benefit from these developments, but their success will depend on effective management, oversight, and ensuring the safety of the local population.11
In South Africa, an anti-immigrant organization called Operation Dudula has been blocking foreigners from using public health facilities. Members turn away anyone without identity documents, block clinic entrances, and demand identity documents. The Johannesburg High Court ruled that these activities are illegal, although the group is still active in some regions. According to Operation Dudula, South Africans are losing their jobs to undocumented immigrants, particularly in a nation where unemployment is higher than 31%.
Additionally, the group has tried to prevent immigrant children from attending public schools and has targeted foreign-owned companies. These acts reflect South Africa’s growing xenophobia, which has already resulted in fatal attacks on foreigners, including one in 2008 that claimed 68 lives. Tensions between public opinion, national economic considerations, and South African law’s protection of human rights are brought to light by this predicament. The rights of migrants to obtain services like health care are protected by South African law, regardless of illicit conduct or a lack of documents.
Security measures have been put in place at public institutions, and the government and the health minister have declared that clinics cannot reject patients for not having the necessary paperwork. However, because of high crime rates and a shortage of police officers, enforcement is challenging. This circumstance demonstrates the difficult balancing act between preventing illegal immigration, safeguarding public resources, and defending everyone’s legal and constitutional rights in South Africa. It also raises questions about how vigilantism affects the legal system and social cohesiveness, demonstrating that although laws are in place to protect immigrants, social tensions can make them less effective.
President Cyril Ramaphosa declared in November 2024 that all proprietors of food businesses and spaza shops had 21 days to register their companies with their local governments. This came after several cases of foodborne disease, including one in which snacks from certain spaza businesses caused the deaths of almost thirty individuals, including children. The government’s attempts to control and keep an eye on spaza businesses, such as surprise inspections, departmental cooperation, and the creation of a nerve centre to enhance public safety and compliance, were emphasized by the Department of Small Business Development (DSBD). Concerns over food poisoning cases, the efficacy of government initiatives, and uncertainty around whether department DSBD, COGTA, or the Department of Agriculture oversees spaza store registrations were voiced by Committee members. Concerns were also voiced over the assistance given to local, citizen-owned spaza shops that compete with foreign-owned businesses, as well as the manual registration procedure in some municipalities.12
Suggestions or way forward:
By tightening regulations and eliminating legal loopholes that permit unauthorized work, fraudulent identification, and illegal entry, South Africa can enhance its immigration system. Only foreigners with rare abilities that South Africans lack should be hired, and all foreigners working in the nation should have legal work permits. Those without valid documentation should be deported to their home countries, and corruption at Home Affairs and border crossings must be eliminated, especially those who help foreigners gain phony IDs or enter the nation illegally.
Improved border security and accurate documentation will enable law enforcement to track down criminals and help the government determine the number of foreign visitors in the nation. Human rights groups, such as the South African Human Rights Commission, are able to keep an eye on violations and guarantee that government actions continue to uphold human rights. The judiciary must uphold rights, fairly enforce immigration rules, and put an end to unlawful activity by organizations such as Operation Dudula. The work permit system needs to be improved, immigration regulations need to be updated and strengthened, and corruption must be penalized. Civil society can assist in educating communities, exposing illicit activity, and promoting lawful immigration. Together, these organizations can safeguard South Africans and handle foreigners in a just and legal manner.
Conclusion:
The critical analysis concludes that there are significant flaws in South Africa’s immigration system, such as unlawful entry, corruption, ID fraud, pressure on public services, and lax enforcement of the law. Although everyone’s rights are guaranteed by the Constitution, South Africans and legal immigrants are frequently not adequately protected under the existing system. Because it has an impact on social stability, employment prospects, national security, and the nation’s capacity to regulate migration equitably, this problem is crucial. Stronger border security, more transparent legislation, trustworthy officials, and improved cooperation between the government, the courts, and civil society are all necessary for South Africa today.
REFERENCE(S):
1 Constitution of the Republic of South Africa,1996, s9, s10, s12, s14, s27, s29, s33.
2 Refugee Act 130 0f 1998, s2, s3, s4.
3 Immigration Act 13 of 2002, s10, s11, s12, s13, s14, s15, s17, s34.
4 President of the Republic of South Africa and Others v. Mohamed and Another (CCT 17/01) (2001) ZACC 18; 2001 (7) BCLR 685 (CC); 2001 (2) SACR 66 (CC); 2001 (3) SA 893 (CC) (May 28, 2001).
5 Minister of Home Affairs and Others v. Lawyers for Human Rights and Others (CCT 18/03) [2004] ZACC 12; 2004 (4) SA 125 (CC); 2004 (7) BCLR 775 (CC) (9 March 2004).
6 Khosa and Others v. Minister of Social Development and Mahlaule and Another v. Minister of Social Development (CCT 12/03 & CCT 13/03) [2004] ZACC 11
7 City of Tshwane Metropolitan Municipality and Others v. Tswelopele Non Profit Organization (2007) In ZASCA 70
8 Ashago v. Home Affairs Minister and Others (2024-002723) (2024) ZAGPPHC 107 on February 12, 2024
9 SAnews (2012) Home Affairs calls for tighter immigration laws, 6 July 2012, South African Government News Agency.
10 Democratic Alliance (DA) (2025) Immigration Amendment Bill closes illegal immigration loopholes, 11 September 2025.
11 Parliament of South Africa. 2024. White Paper on Citizenship, Immigration and Refugee Protection; Update on Operation Vulindlela.
12 Africanews (2025) South Africa court rules anti-migrant clinic blockades illegal, November 2025
