What are the rights of foreigners in South Africa?

I owe my being to the Koi and the San whose desolate souls haunt the great expanses of the beautiful Cape. I am formed of the migrants who left Europe to find a new home on our native land. Whatever their actions, they remain, still, part of me. In my veins course the blood of the Malay slaves who came from the East. I am the grandchild of the warrior men and women that Hintsa and Sekhukhune led, the patriots that Cetshwayo and Mphephu took to battle, the soldiers Moshoeshoe and Ngunyane taught never to dishonour the cause of freedom. I am the grandchild who sees in the mind’s eye and suffers the suffering of a simple peasant folk…I come of those who were transported from India and China. Being part of all these people, and in the knowledge that none dare contest that assertion, I shall claim that I am an African!”

The words of then Deputy President Thabo Mbeki addressing the United Nations University on 9 April 1998, were a call on Africans to realise their importance and become equipped for development shaped for equal economic activity and good living.

Although Mbeki’s plea stopped short of practical ways to develop, his intentions were pure and must receive the respect it deserves. The right to development is a basic right contained in the fabric of international human rights. He had superior insight into the importance of brotherhood and neighbourliness. In congruence with the African Renaissance, he warned against intolerance towards outsiders.

These reminders stand in stark contrast with frequent  xenophobic attacks, with horrifying stories and images of mayhem and violence. The language of fear becomes part of our national dialogue as the word “xenophobia” (Afrophobia, in South Africa) makes regular news headlines.

Attacks are expressed in barbaric old ways of lynching accompanied by looting, vandalism, intimidation and harassment, assault, and murder. Communities are divided by hostility and suspicion.

People resort to these self-help safety measures or seek assistance outside government for protection against the attacks. For those who cannot afford security, vigilantism has become a viable option. Vigilante groups take on policing functions, using violent means to illicit confessions and mete out punishment. As such they function in opposition to the formal criminal justice system and instead of reducing crime, their activities add to the workload of the police and courts.

Appalled at the events playing out in recent days, President Cyril Ramaphosa says there is never any justification for South Africans to turn on foreign nationals. Aware that wrongs have been committed by both sides he cautioned that: “We want foreign nationals here to obey the laws of South Africa. They must obey the laws. They must live in accordance with our protocols, laws, and regulations. If they are committing crime, they are criminals like any South African would be a criminal for doing the same thing.”

Xenophobia, regardless of how it demonstrates, threatens the lives and livelihoods of locals and foreigners alike. Violence inevitably turns people against each other, from derogatory name-calling to harassment and physical attacks undermines peaceful co-existence.

There is an assumption that xenophobia is predicated on a hatred of foreigners, that to attack them, an element of dislike must exist. Perhaps the most significant difference is in fact the absence of hate or dislike. Although xenophobia is synonymous with violence, it is important to realise that in fact it is an emotion that explains the motivation behind the action. A fine difference, but significant, nonetheless, not to get lost between the act and the feeling.

Xenophobia cannot be separated from physical and mental abuse. It is not just an attitude; it is a violent practice that results in physical harm and damage to property.

One of the reasons for perpetrating violence against foreigners, appear to be rooted in the perception that these people take jobs from local citizens, send their earnings out of the country, use the country’s welfare services, and bring diseases.

The reality is that foreigners are cleaning our homes, educating our children, and successfully managing small and large businesses. We also need to remember that South Africa’s gold mining and the manufacturing sectors of its industrial heartland were built with migrant labour, mostly from neighbouring countries.

We are hardly in the position to close our borders, as repairing our economy requires an increase in foreign capital investments. Nurturing xenophobic sentiments by basing them not upon personal experience but on stereotypes and negatively charged language that assume foreigners are a societal bane, will not sustain.

These misdemeanours go against the very tenets provided for in legal instruments which apply to both citizens and foreigners in protecting them from harm. The laws of our country ensure the full enjoyment by people of African descent of all human rights and fundamental freedoms.

Foreign nationals have the same rights as South African citizens, except for the right to vote. Most of the rights that are found in international human rights treaties are embedded in the Bill of Rights. The rights of people are further protected by international human rights instruments against mistreatment and intolerance. The rights entrenched in the Bill of Rights in South Africa’s final Constitution are, with a few exceptions, guaranteed to everyone. These rights include the rights to-

  • equality before the law;
  • human dignity;
  • life;
  • freedom and security of the person and property;
  • privacy of the home, property and communications.

Violation of a foreign national’s rights through xenophobic violence in the host state for example, would lead to that state incurring indirect responsibility. The host state has a duty to prevent wrongs. This includes the duty to bring to book perpetrators of these wrongs.

The courts have condemned xenophobia as being a violation of human rights. In the case of Kiliko and Others v Minister of Home Affairs and Others the court held that “the state, under international law, is obliged to respect the basic human rights of any foreigner who has entered its territory, and any such person is under the South African Constitution, entitled to all the fundamental rights entrenched in the Bill of Rights, save those expressly restricted to citizens.”

In Somali Association of South Africa and Others v Limpopo Department of Economic Development, Environment and Tourism and Others, Musina spaza shop owners were told they would need a permit to continue operating. They approached the High Court for a declaration that-

  • they be allowed to earn a living by self-employment;
  • be allowed to apply for and to renew licences and permits in terms of the land-use scheme;
  • closure of their businesses run with valid permits were unlawful.

I stress again that this is not to say that the resulting violence is not also fuelled by foreigners. In fact, there have been reports of violence instigated by foreigners. In terms of the “non-refoulement” principle a foreigner would lose protection and be returned to their country of origin, if such person-

  • is a danger to the public and security of the country; or
  • was convicted of a particularly serious crime.

Save for necessary humanitarian assistance, no person shall aid, abet, assist, enable or in any way help such a person carry out a crime.

Xenophobia seems to stand as the obstacle to the idea of the African Renaissance to perpetuate ideals of harmony and diversity. Have we forgotten about good old African Ubuntu? Ubuntu is the hallmark of inclusivity, an example of tolerance and solidarity in the workplace and ordinary life. It complements the rule of law which is about the principle that all are accountable to law that is fairly applied and equally enforced. According to the value of ubuntu, priority is given to both duties and rights one has as a person.

Leading legal authority, Adv. Paul Hoffman SC, stressed the importance of “fostering good relations with our fellow Africans and our neighbouring countries [which] ought to be the natural default position of all South Africans. Tolerance and acceptance are drivers of economic growth in any country”. He was writing about the ending of xenophobia being one of the points of action which will form part of the Make South Africa Work Again Manifesto, once implemented.

The Manifesto aims to restate ubuntu as defining its international relations. It speaks to the idea of community being one of the building blocks of society. There is no room for humiliation, discrimination and ill-treatment, only equal treatment, and respect. The principle of ubuntu reminds of attitudes towards foreigners or strangers before the advent of xenophobia were those of tolerance and benevolence. Our attitudes towards strangers were made to feel welcome and to move with ease within the community.

Instead of harbouring feelings of resentment and hatred towards migrants from neighbouring countries, should South Africans not feel something nearing gratitude and possibly a sense of comradeship with them?

It seems that the role of ubuntu has diminished, and xenophobia has flourished. I believe that it is possible to recapture and spread the values of human dignity, equality, solidarity, and human rights that traditionally existed in our country. I believe it is a sine qua non (an essential condition) of African living. It is a philosophy and way of life that has held society together because of its beliefs and practices and has put the person at the centre of life.

Abundant possibilities exist to address this ignorance. An example is the potential of community radio broadcasts to provide organic interventions against xenophobia. This may be achieved by way of narratives and dialogue promoting acceptance, understanding, appreciation and respect for diversity.

It is possible for South African leaders to step up to the plate and retrace its path to those of the African leaders past gone as evidenced above to restore ubuntu as the foundation of human relations in the country.

It is really in the hands of all South Africans, by their own transformation, to ensure that all people are equal before the law.

This blog is written by, and the personal opinion of, Adv Reneé Caprari, a Referral Advocate in private practice, with extensive experience in corporate, forensic and legal issues relating to civil, commercial and criminal matters. Connect with her on email: [email protected].

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