ZA Minister Mmamoloko Kubayi on Keeping South Africans Safe

South Africa's Minister of Justice and Constitutional Development, Mmamoloko Kubayi, has affirmed the state's commitment to upholding law and order amidst protests against irregular migration, while simultaneously reiterating the constitutional right to peaceful assembly. This stance highlights the delicate balance the state must strike between enforcing immigration laws and protecting fundamental human rights, including those of non-citizens. The article delves into the legal frameworks governing migration, public order, and constitutional rights in South Africa, examining how recent judicial pronouncements have shaped the interpretation and application of these laws. It provides practitioners with an overview of the state's powers and limitations, particularly concerning the management of protests and the treatment of irregular migrants, emphasizing the imperative to prevent vigilantism and ensure due process.

In a recent statement, South Africa's Minister of Justice and Constitutional Development and chair of the Inter-ministerial Committee (IMC) on Migration, Mmamoloko Kubayi, underscored the government's resolve to ensure law and order prevails during public protests against irregular migration. The Minister's remarks, made during a media briefing in Johannesburg, emphasized that the state's primary objective is to keep South Africans safe, while also acknowledging the constitutional right to protest peacefully. This declaration comes amid heightened public discourse and demonstrations concerning migration issues, necessitating a clear articulation of the state's role and responsibilities.

The Minister's statement is particularly pertinent for legal professionals navigating the complex interplay between immigration enforcement, public order management, and constitutional rights. It signals a governmental commitment to a "Comprehensive Approach for Migration Management" as announced by President Cyril Ramaphosa, which seeks to address genuine public concerns through lawful, coordinated, and constitutional measures. However, it also implicitly raises critical questions about the practical implementation of these principles, especially when balancing the state's duty to maintain peace with the protection of individual liberties, including those of foreign nationals, whether regular or irregular. This article will explore the legal landscape underpinning these issues, providing a framework for understanding the challenges and obligations faced by legal practitioners.

South Africa's legal framework for migration is primarily governed by the Immigration Act 13 of 2002 and the Refugees Act 130 of 1998. The Immigration Act regulates the admission, residence, and departure of persons from the Republic, aiming to establish a system of immigration control that is expeditious, objective, and respects human rights while also securing borders and deterring illegal immigration. It confers powers to detect, detain, and deport individuals present in the country without authorisation, often referred to as irregular migrants. The Refugees Act, on the other hand, gives domestic effect to international legal instruments relating to refugees, providing for the reception of asylum seekers and the recognition of refugee status, along with associated rights and obligations.

Public gatherings and demonstrations in South Africa are regulated by the Regulation of Gatherings Act 205 of 1993. This Act aims to regulate the holding of public gatherings and demonstrations, establishing procedures for notifying authorities of planned events and outlining responsibilities to ensure peaceful and lawful assemblies. Crucially, Section 17 of the Constitution of the Republic of South Africa, 1996, enshrines the right of everyone, peacefully and unarmed, to assemble, to demonstrate, to picket, and to present petitions. This right, like all rights in the Bill of Rights, is subject to limitations that are reasonable and justifiable in an open and democratic society based on human dignity, equality, and freedom, as per Section 36 of the Constitution.

The Justice Minister's emphasis on maintaining law and order during protests against irregular migration invokes the state's constitutional mandate to protect and secure all inhabitants of South Africa and their property. However, this mandate must be exercised in a manner consistent with the Bill of Rights, which applies to all people in South Africa, including non-nationals. The state's duty extends to ensuring that the rights of protestors, as enshrined in Section 17 of the Constitution, are respected, while simultaneously preventing the infringement of other individuals' rights.

Recent jurisprudence has significantly impacted the application of the Regulation of Gatherings Act. In *Mlungwana and Others v The State and Another* [2018] ZACC 45, the Constitutional Court declared Section 12(1)(a) of the Act unconstitutional to the extent that it criminalised the failure to give notice or the giving of inadequate notice by a convener of a gathering. The Court reasoned that such criminalisation had a chilling effect and deterred the exercise of the right to freedom of assembly, finding it to be a disproportionate sanction. This landmark decision reinforces the importance of the right to protest and places a higher burden on the state to manage gatherings without unduly criminalising their conveners for procedural non-compliance.

Regarding irregular migration, the Immigration Act 13 of 2002 defines an "illegal foreigner" as a person in the country without authorisation. The state has powers to detain and deport such individuals. However, the exercise of these powers is not unfettered. The Constitutional Court, in cases like *Ruta v Minister of Home Affairs* 2019 (2) SA 329 (CC), has clarified that the Refugees Act takes precedence over the Immigration Act when an individual expresses an intention to seek asylum, meaning detention or deportation under the Immigration Act cannot proceed until the asylum process is finalised. Subsequent cases, such as *Ashebo v Minister of Home Affairs and Others* 2023 (5) SA 382 (CC) and *Lembore and Others v Minister of Home Affairs and Others* [2024] 2 All SA 113 (GJ), have further refined the balance, affirming that while an intent to seek asylum does not automatically guarantee release from detention, detention under the Immigration Act remains lawful until valid reasons for illegal entry or delayed asylum claims are demonstrated.

The Minister's condemnation of vigilantism is a crucial aspect of upholding the rule of law. She explicitly stated that only the state has the responsibility to enforce immigration law and warned against citizens conducting identity checks or enforcement actions. While the Criminal Procedure Act 51 of 1977 permits citizen's arrests under specific conditions, it strictly prohibits victimisation, intimidation, and physical abuse, requiring immediate handover to the police. This highlights the state's exclusive mandate for law enforcement and the dangers of private individuals usurping police functions, particularly in a context prone to xenophobic violence. Cases like *Lehlehla v Minister of Police* (A37/2023) [2024] ZAWCHC 107 and *Serapelo v Minister of Police* (1626/2017) [2024] ZANWHC 57 underscore the police's duty of care and the need for proper public order policing protocols to prevent harm during crowd control.

The Justice Minister's statement serves as a critical reminder to legal practitioners of the multifaceted legal landscape governing migration and public order in South Africa. The state's commitment to ensuring safety and upholding law and order must always be balanced against the fundamental rights enshrined in the Constitution, applicable to all individuals within the country's borders. This includes the right to peaceful protest, which has been significantly protected by the Constitutional Court, and the rights of irregular migrants and asylum seekers, whose status is governed by specific legislative frameworks and judicial interpretations.

Practitioners must remain vigilant in monitoring the implementation of migration management strategies and public order policing, ensuring that state actions adhere to constitutional principles and statutory requirements. The clear condemnation of vigilantism by the Minister provides a strong basis for challenging unlawful citizen-led enforcement actions. As the government continues its efforts to strengthen border management and enhance migration governance, legal professionals play a vital role in advocating for due process, preventing human rights abuses, and ensuring that the rule of law is applied consistently and fairly to all, irrespective of their migratory status.