South Africa Unrest Grows As Migrants Become 'Scapegoats'

South Africa is experiencing a concerning surge in anti-migrant sentiment, with vigilante groups reportedly issuing ultimatums for undocumented foreign nationals to leave the country. This development highlights profound legal and constitutional challenges, as such extra-legal actions directly contravene the rights afforded to all persons under the South African Constitution and international law. The state's responsibility to uphold the rule of law and protect all individuals within its borders, regardless of immigration status, is under intense scrutiny. This article delves into the relevant legal frameworks, recent judicial pronouncements, and the practitioner implications of this growing unrest, underscoring the urgent need for adherence to due process and robust state intervention.

South Africa is once again grappling with a significant escalation of anti-migrant tensions, marked by reports of vigilante groups going door-to-door, demanding that undocumented foreign nationals depart the country by the end of June. This alarming trend, as noted by post-apartheid specialist Cécile Perrot, reflects deeper socio-economic problems within the nation, with migrants increasingly becoming scapegoats for poverty and unemployment.

These extra-legal actions pose a direct threat to the rule of law, the constitutional rights of foreign nationals, and South Africa's international human rights obligations. The targeting of individuals based on their perceived immigration status by non-state actors undermines the very foundations of a constitutional democracy and risks plunging communities into further instability and violence. The state's capacity and willingness to intervene decisively and uphold its constitutional mandate to protect all persons within its borders are critically tested.

This article aims to provide legal professionals with a comprehensive overview of the legal framework governing foreign nationals in South Africa, the constitutional protections afforded to all individuals, and the legal ramifications of these unlawful actions. It will explore relevant statutory provisions, key judicial interpretations, and the urgent need for state intervention and strict adherence to due process to safeguard human rights and maintain social cohesion.

The legal landscape governing foreign nationals in South Africa is primarily shaped by the Constitution of the Republic of South Africa, 1996, the Immigration Act 13 of 2002, and the Refugees Act 130 of 1998. The Constitution is foundational, extending fundamental human rights to 'everyone' within South Africa's borders, including non-nationals. Key provisions include Section 9, which guarantees equality and prohibits unfair discrimination on various grounds, including ethnic or social origin and birth, and Section 10, which enshrines the right to human dignity. Furthermore, Section 12 protects the right to freedom and security of the person, while Section 34 ensures access to courts.

The Immigration Act 13 of 2002 regulates the admission, residence, and departure of persons from the Republic, aiming to manage migration while promoting economic growth and preventing xenophobia. Complementing this, the Refugees Act 130 of 1998 gives domestic effect to international legal instruments, such as the 1951 Convention Relating to the Status of Refugees and the 1969 OAU Convention, providing for the reception and protection of asylum seekers and refugees. South Africa's commitment to these international instruments underscores its obligation to protect all persons, regardless of their origin or immigration status.

Historically, South Africa has experienced recurring waves of xenophobic violence, reflecting deep-seated socio-economic frustrations often misdirected at foreign nationals. In response to such challenges, the state has a clear constitutional and international obligation to protect all persons from violence and discrimination, including from non-state actors. The recent enactment of the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023 further solidifies the legal framework against xenophobia, aiming to outlaw offences of hate crimes and hate speech and ensure the prosecution of perpetrators.

The current rise in anti-migrant vigilantism directly challenges the constitutional protections afforded to all individuals in South Africa. The Bill of Rights, enshrined in Chapter 2 of the Constitution, applies to 'everyone', with only a few specific rights reserved exclusively for citizens, primarily political rights and the right to a passport. This means that foreign nationals, whether documented or undocumented, are entitled to fundamental rights such as human dignity, equality, freedom and security of the person, and access to courts.

Crucially, the power to demand identity documents and verify immigration status is exclusively vested in immigration and police officers, acting within the bounds of the Immigration Act 13 of 2002. Private citizens or vigilante groups have no legal authority to undertake such actions. This principle was unequivocally affirmed in the recent High Court judgment in *Kopanang Africa Against Xenophobia and Others v Operation Dudula and Others*. The court declared Operation Dudula's conduct unlawful, issuing an interdict prohibiting them and their leaders from harassing, intimidating, assaulting, or demanding documents from foreign nationals, as well as engaging in hate speech or interfering with access to services like healthcare and schools.

Furthermore, the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023, assented to by President Cyril Ramaphosa in May 2024, provides a critical legal tool to address the xenophobic rhetoric and actions fueling the current unrest. This Act criminalises hate crimes motivated by prejudice and hate speech that incites harm, directly addressing the type of incitement often seen in anti-migrant campaigns.

Despite these robust legal frameworks, a significant gap exists between constitutional guarantees and their practical enforcement. The *Kopanang Africa Against Xenophobia* judgment, while condemning vigilante actions, also found that the government had failed to adequately implement its National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance. This highlights a persistent challenge in state accountability and the effective protection of vulnerable communities. Previous Constitutional Court rulings, such as *Lawyers for Human Rights v Minister of Home Affairs* (CCT38/16) [2017] ZACC 22, have also underscored the importance of due process, declaring certain provisions of the Immigration Act unconstitutional for allowing detention of 'illegal foreigners' without automatic judicial review or appearance in court within 48 hours. While the state has the right to manage immigration, it must do so in a manner consistent with human rights and the rule of law. However, a recent Constitutional Court judgment barring rejected asylum seekers from reapplying has raised concerns among human rights organisations regarding potential deportations to countries where lives may be in danger.

For practising attorneys and legal professionals, the current climate necessitates a proactive and informed approach. Practitioners must be prepared to advise foreign nationals on their constitutional rights, including the right to dignity, equality, and freedom from arbitrary detention, and to challenge any unlawful actions by both state and non-state actors. This includes assisting individuals targeted by vigilante groups in seeking interdicts, reporting hate crimes, and pursuing legal recourse against those who violate their rights. Furthermore, legal professionals have a crucial role in holding the state accountable for its constitutional and international obligations to protect all persons within its borders, potentially through litigation for failure to prevent or address xenophobic violence.

Looking ahead, practitioners should closely monitor the implementation and enforcement of the Prevention and Combating of Hate Crimes and Hate Speech Act 16 of 2023, as well as the government's efforts to operationalise its National Action Plan to Combat Racism, Racial Discrimination, Xenophobia and Related Intolerance. The ongoing judicial scrutiny of immigration laws and the state's conduct, as seen in cases involving organisations like Operation Dudula, will continue to shape the legal landscape. It is imperative that all stakeholders, including legal professionals, remain vigilant in upholding the constitutional values of human dignity, equality, and the rule of law, ensuring that South Africa remains a society where the rights of all are respected and protected.