Africans Must Go - but to Where?

The pervasive sentiment of "Africans Must Go" in South Africa highlights a critical disjuncture between the nation's progressive constitutional framework and the lived realities of foreign nationals. This article examines the South African legal landscape governing the rights of non-citizens, including the Constitution, the Immigration Act 13 of 2002, the Refugees Act 130 of 1998, and the recently enacted Prevention and Combating of Hate Crimes and Hate Speech Act 4 of 2024. It delves into key judicial pronouncements, such as those in *Lawyers for Human Rights v Minister of Home Affairs* and *Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others*, which have sought to uphold human rights against xenophobic practices. Despite robust legal protections, significant challenges persist in enforcement and the practical realisation of these rights, necessitating continued vigilance and advocacy from legal professionals.

The unsettling scenes of harassment, violence, and calls for foreign nationals to "go back home" in South Africa underscore a profound societal and legal challenge. These xenophobic sentiments, often amplified by groups like Operation Dudula, expose a stark contrast between the aspirational values enshrined in South Africa's Constitution and the discriminatory experiences faced by many non-citizens. The question of "Africans Must Go - but to Where?" is not merely a rhetorical one; it points to a complex interplay of immigration policy, human rights, and the rule of law that demands rigorous legal scrutiny.

This article aims to provide legal practitioners with a comprehensive overview of the South African legal framework designed to protect foreign nationals and combat xenophobia. It will explore the constitutional underpinnings of these protections, analyse relevant statutory instruments, and examine pivotal court decisions that have shaped the interpretation and application of these laws. By highlighting both the strengths and shortcomings of the current legal regime, the article seeks to equip attorneys with the knowledge necessary to navigate this challenging area and advocate effectively for the rights of all individuals within South Africa's borders.

South Africa's legal framework for protecting human rights is anchored in its Constitution, 1996, widely regarded as one of the most progressive globally. The Bill of Rights, contained in Chapter 2, extends fundamental rights to "everyone," not solely to citizens, encompassing rights such as human dignity (Section 10), equality (Section 9), freedom and security of the person (Section 12), and access to healthcare and education (Sections 27 and 29, respectively). This universal application of rights forms the bedrock against discrimination, including xenophobia, which is defined as an irrational dislike or fear of foreigners.

Complementing the Constitution are key legislative instruments. The Immigration Act 13 of 2002 regulates the admission, residence, and departure of persons from the Republic, aiming to promote economic growth while also preventing xenophobia within state departments. The Refugees Act 130 of 1998 gives effect to international legal instruments concerning refugees, providing for the reception of asylum seekers, recognition of refugee status, and the rights and obligations flowing from such status, including the principle of non-refoulement. Furthermore, South Africa is a signatory to various international and regional human rights instruments, including the African Charter on Human and Peoples' Rights, the International Covenant on Civil and Political Rights (ICCPR), and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), all of which impose obligations on the state to protect individuals from discrimination and xenophobic attacks. A significant recent development is the Prevention and Combating of Hate Crimes and Hate Speech Act 4 of 2024, which criminalises offences motivated by prejudice and hate speech, thereby strengthening the legal arsenal against xenophobia.

Despite the robust constitutional and statutory framework, the practical protection of foreign nationals in South Africa remains a significant challenge. The universal application of rights in the Constitution, which guarantees human dignity, equality, and freedom to "everyone," often clashes with the realities of xenophobic sentiment and discriminatory practices. This gap between legal theory and lived experience is particularly evident in the context of immigration enforcement and public hostility.

Judicial intervention has been crucial in affirming the rights of non-citizens. In *Lawyers for Human Rights v Minister of Home Affairs* (2004), the Constitutional Court affirmed that even "illegal foreigners" at ports of entry are protected by the rights in the Constitution, rejecting the argument that such persons had no rights beyond international law. This principle was further reinforced in a 2017 Constitutional Court judgment, *Lawyers for Human Rights v Minister of Home Affairs and Others* (CCT38/16), which declared sections 34(1)(b) and (d) of the Immigration Act 13 of 2002 unconstitutional. The Court found these provisions invalid for failing to provide for automatic judicial oversight of detention and for not requiring the detainee's personal appearance before a court, thereby ensuring that detention for deportation purposes is not arbitrary. This ruling underscored the importance of judicial review in safeguarding the liberty of foreign nationals, regardless of their immigration status.

The recently enacted Prevention and Combating of Hate Crimes and Hate Speech Act 4 of 2024 is a critical legislative step. It criminalises hate crimes, defined as recognised offences motivated by prejudice or intolerance based on characteristics like nationality or ethnic origin, and also creates the offence of hate speech. This Act aims to give effect to South Africa's constitutional and international obligations to combat racism, racial discrimination, xenophobia, and related intolerance. However, its effectiveness will depend on diligent enforcement and prosecution, particularly given previous concerns about police inaction in xenophobic incidents.

The activities of vigilante groups, such as Operation Dudula, have brought the issue of xenophobia to the forefront. These groups have engaged in unlawful conduct, including demanding identity documents, harassing foreign nationals, and obstructing access to essential services. In a significant ruling in November 2025, the Gauteng High Court in *Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others* interdicted Operation Dudula and its leaders from such actions, affirming that only authorised officials may request identity documents and prohibiting hate speech and intimidation. Crucially, this judgment also made the implementation of the government's National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances a binding legal obligation, moving it beyond mere policy. This case, alongside others affirming access to healthcare for pregnant women, lactating women, and children under six irrespective of documentation status, demonstrates the judiciary's role in upholding human rights against discriminatory practices. However, challenges remain in ensuring consistent application and preventing state failures to protect non-citizens from vigilante violence.

The legal landscape in South Africa offers a robust framework for the protection of foreign nationals, grounded in the Constitution's universal application of human rights and reinforced by specific legislation and international obligations. The judiciary has consistently played a vital role in interpreting these laws to safeguard the dignity, liberty, and equality of non-citizens, as evidenced by landmark judgments concerning detention, access to services, and the curbing of xenophobic vigilantism. The recent enactment of the Hate Crimes and Hate Speech Act further strengthens the state's capacity to address prejudice-motivated offences.

For legal practitioners, the ongoing struggle against xenophobia presents both challenges and opportunities. It is imperative to remain abreast of legislative developments and judicial interpretations, particularly regarding immigration processes, refugee status determination, and the enforcement of anti-discrimination laws. Attorneys must be prepared to litigate against unlawful detentions, advocate for access to fundamental rights, and challenge instances of hate speech and xenophobic violence. The *Kopanang Africa Against Xenophobia* judgment underscores the importance of civil society and legal action in holding both private actors and the state accountable. Practitioners should actively engage in human rights advocacy, offer legal assistance to vulnerable foreign nationals, and monitor the implementation of the National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerances to ensure that South Africa lives up to its constitutional promise of belonging to all who live in it.