A tragic betrayal – WHO Chief condemns deadly xenophobic attacks in South Africa

The recent condemnation of deadly xenophobic attacks in South Africa by the Director-General of the World Health Organisation, Dr. Tedros Adhanom Ghebreyesus, underscores a persistent legal and human rights challenge within the nation. This article examines South Africa's evolving legal framework designed to combat xenophobia, focusing on the constitutional imperative to protect human dignity and equality, and the recent enactment of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023. It delves into the state's positive obligations under both domestic and international law to prevent such violence, investigate crimes, and ensure accountability, highlighting the implications for legal practitioners in navigating this complex landscape. The article also touches upon historical challenges in prosecution and the critical need for effective implementation of legislative measures to uphold the rule of law and protect all individuals within South Africa's borders.

The Director-General of the World Health Organisation (WHO), Dr. Tedros Adhanom Ghebreyesus, recently issued a strong condemnation of the latest wave of xenophobic violence in South Africa. This international outcry highlights a deeply troubling and recurrent issue that challenges the foundational principles of post-apartheid South Africa. Such attacks, often targeting foreign nationals from other African countries, represent a tragic betrayal of the nation's constitutional commitment to human dignity, equality, and non-racialism.

For legal professionals, these incidents raise critical questions about the adequacy and enforcement of South Africa's legal framework in preventing hate crimes, protecting vulnerable populations, and ensuring justice for victims. Despite robust constitutional provisions and international human rights obligations, the persistence of xenophobic violence points to significant gaps in implementation and accountability. This article will provide a comprehensive overview of the legal landscape governing xenophobia in South Africa, analyze the state's duties, and discuss the practical implications for attorneys navigating this sensitive area of law, particularly in light of recent legislative developments.

South Africa's legal architecture is fundamentally rooted in its Constitution, 1996, which champions human dignity, the achievement of equality, and the advancement of human rights and freedoms as founding values. Section 9 of the Constitution explicitly guarantees everyone the right to equality before the law and prohibits unfair discrimination on various grounds, including race, ethnic or social origin, and colour. Furthermore, Section 10 enshrines the inherent dignity of every person and their right to have that dignity respected and protected, while Section 12 guarantees freedom and security of the person, including the right to be free from all forms of violence from either public or private sources.

Beyond its domestic framework, South Africa is a signatory to several international human rights instruments that reinforce its obligations to combat xenophobia. These include the International Covenant on Civil and Political Rights (ICCPR), the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), and the African Charter on Human and Peoples' Rights (ACHPR). These treaties obligate the state to take all necessary measures to eliminate racial discrimination and protect individuals within its jurisdiction from attacks motivated by discrimination, including on grounds of ethnicity or social origin. Historically, despite these strong legal commitments, South Africa has grappled with intermittent but widespread xenophobic violence since at least 2008, with perpetrators often being charged with common law crimes rather than specific hate crime offences.

The legal response to xenophobia in South Africa has seen a significant development with the enactment of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023 (Act 16 of 2023). Signed into law by President Cyril Ramaphosa on 9 May 2024 and gazetted on 14 May 2024, this Act directly addresses the lacuna where xenophobia was not explicitly criminalised as a standalone offence. The Act defines a hate crime as any recognised offence under any law that is motivated by prejudice or intolerance based on characteristics such as nationality, migrant, refugee, or asylum seeker status. It also criminalises hate speech, defined as intentionally publishing, propagating, advocating, or communicating anything that could reasonably be construed to demonstrate a clear intention to be harmful or to incite harm, or to promote or propagate hatred based on defined grounds.

Prior to this Act, courts, as seen in cases like *Gila v S* (A93/2022) [2023] ZAWCHC 8, acknowledged that while there was no specific law against xenophobia, its toxic effects manifested through other crimes like murder, robbery, and assault. The *Gila* judgment highlighted that courts could only combat such infringements on human rights through existing laws, often leading to charges for common law crimes, with limited success in reflecting the underlying xenophobic motivation. The new Act, once in force, aims to provide for appropriate sentences for hate crime and hate speech offences and mandates that the criminal record explicitly reflect the underlying offence as a hate crime.

Crucially, the state bears a positive duty to protect individuals from violence, a principle affirmed by the Constitutional Court in various contexts, including *S v Baloyi* (2000) and *Omar v Government of the Republic of South Africa*. This duty extends to protecting foreign nationals, as established in *Kiliko and Others v Minister of Home Affairs and Others* 2006 (4) SA 114 (C), which held that the state is obliged under international law to respect the basic human rights of any foreigner within its territory. The African Commission on Human and Peoples' Rights has also deplored xenophobic attacks in South Africa, reiterating that immigration enforcement rests solely with authorised state institutions, not vigilante groups, and that the state must take concrete measures to prevent recurrence and ensure accountability.

Despite the legislative advancements, challenges remain. The effective implementation of the new Act will be paramount, requiring diligent investigation, prosecution, and judicial application. Concerns have been raised by civil society organisations, even while welcoming presidential condemnations, that the political framing of migration issues can inadvertently validate anti-migrant narratives, potentially undermining the spirit of the new legislation. The success of this Act will depend not only on its legal provisions but also on a concerted effort by all organs of state to address the root causes of xenophobia, promote social cohesion, and ensure that the constitutional promise of dignity and equality extends to all who live in South Africa.

The WHO Chief's condemnation serves as a stark reminder of South Africa's ongoing struggle with xenophobia, a challenge that deeply implicates its constitutional values and international human rights commitments. The enactment of the Prevention and Combating of Hate Crimes and Hate Speech Act, 2023, marks a pivotal moment, providing a dedicated legal instrument to criminalise and prosecute acts motivated by xenophobic prejudice. This legislation, once fully operational, offers legal practitioners a more robust framework to seek justice for victims and hold perpetrators accountable, moving beyond reliance on common law crimes that often failed to capture the true nature of the offence.

For attorneys, understanding the nuances of this new Act, its interplay with constitutional rights, and South Africa's international obligations will be crucial. Practitioners should be prepared to advise clients on their rights under the new law, assist in reporting hate crimes, and potentially pursue litigation against the state for failures in its positive duty to protect. The legal community must remain vigilant in monitoring the Act's implementation, advocating for its effective enforcement, and contributing to a legal discourse that champions human dignity and equality for all, irrespective of nationality or origin. The ongoing commitment to these principles is essential to heal the divisions of the past and build a truly inclusive society.